Unreported / Non-Citable
Background
Jose Rodolfo Zarazua Hernandez, a native and citizen of Mexico, petitioned for review after the Board of Immigration Appeals summarily dismissed his appeal from an immigration judge’s decision as untimely. A notice of appeal to the BIA generally must be filed within 30 days, although the deadline is subject to equitable tolling when a noncitizen diligently pursues his rights and an extraordinary circumstance prevents timely filing.
Hernandez argued that the filing period was not triggered because the immigration judge’s decision was mailed to his counsel’s former address and that the Immigration Court violated due process by failing to take additional service steps after the mailing was returned as undeliverable. He also challenged the BIA’s use of a single-member decision and asserted that equitable tolling was warranted because counsel had updated his address through the Executive Office for Immigration Review’s electronic portal.
The Court’s Holding
The Fifth Circuit dismissed the timeliness and due-process arguments because Hernandez had not raised them before the BIA and the government invoked the exhaustion requirement. The court also dismissed his challenge to single-member BIA review, holding that it lacked jurisdiction to review the BIA’s discretionary decision not to refer the case to a three-member panel.
The court denied the remainder of the petition, concluding that the BIA did not abuse its discretion by refusing equitable tolling. Counsel’s unsupported assertion that he updated his address through EOIR’s portal was not evidence. Even assuming that update occurred, EOIR procedures required counsel to submit a new form for Hernandez’s individual case. The returned envelope and counsel’s use of a new address on other filings did not establish compliance with that requirement.
Key Takeaways
- Arguments not presented to the BIA are unexhausted when the government invokes exhaustion.
- The Fifth Circuit lacks jurisdiction to review the BIA’s discretionary choice between single-member and three-member consideration.
- An attorney’s portal-level address update does not update the address in an individual immigration case when EOIR procedures require a separate case-specific form.
- Unsupported assertions by counsel do not constitute evidence establishing extraordinary circumstances for equitable tolling.
Why It Matters
The decision underscores that immigration counsel must follow EOIR’s case-specific address-change procedures rather than rely on a general electronic-profile update or an address appearing on other filings. Failure to document compliance can defeat an equitable-tolling request when a decision is mailed to the address of record.
It also illustrates the procedural limits on judicial review: claims omitted before the BIA may be barred for lack of exhaustion, and the BIA’s choice of single-member review is not independently reviewable in the Fifth Circuit.