The Ninth Circuit granted a petition for review and remanded a Board of Immigration Appeals decision that summarily dismissed an appeal as untimely. The court held that the Board failed to provide a reasoned explanation for denying equitable tolling based on counsel's sudden illness.
Andrea Milagros Rodas Zafra, a native and citizen of Peru, appealed a Board of Immigration Appeals decision that summarily dismissed her appeal and denied her motion to accept a late-filed notice of appeal. Her prior counsel, Heather A. Moilanen-Miller, claimed that her sudden illness prevented the timely filing of the notice of appeal within the thirty-calendar-day deadline.
The court’s reasoning
The court reviewed the Board’s decision for abuse of discretion. It found that the Board applied the equitable tolling test from Holland versus Florida but failed to explain why the counsel’s illness did not constitute an extraordinary circumstance. The court noted that attorney misconduct or inaction can be an extraordinary circumstance and that the Board’s sparse order prevented meaningful appellate review.
What it means going forward
The decision requires immigration courts to provide detailed explanations when denying equitable tolling motions, particularly those involving attorney illness or misconduct, rather than issuing summary dismissals.
