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Keywords

jurisdictionappealhearingmotionregulation
jurisdictionappealhearingmotionregulation

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Boch-Saban v. Garland

Facts

Jose Santos Boch-Saban, a citizen of Guatemala, was charged with being removable from the U.S. after failing to appear at his removal hearing. He later married a U.S. citizen, and they jointly moved to reopen his removal proceedings in 2017, which was denied by an immigration judge (IJ) as time and number barred. Boch-Saban filed a second motion to reopen, which was also denied, leading him to file a notice of appeal with the BIA in 2018, arguing for equitable tolling due to ineffective assistance of counsel.

Jose Santos Boch-Saban, a citizen of Guatemala, was charged with being removable from the U.S. after failing to appear at his removal hearing. He later married a U.S. citizen, and they jointly moved to reopen his removal proceedings in 2017, which was denied by an immigration judge (IJ) as time and number barred. Boch-Saban filed a second motion to reopen, which was also denied, leading him to file a notice of appeal with the BIA in 2018, arguing for equitable tolling due to ineffective assistance of counsel.

Issue

Did the BIA err in dismissing Boch-Saban's appeal as untimely and failing to consider his arguments for equitable tolling?

Did the BIA err in dismissing Boch-Saban's appeal as untimely and failing to consider his arguments for equitable tolling?

Rule

The BIA has jurisdiction to hear cases if the alien establishes equitable tolling, which is a question of law reviewed de novo.

The BIA has jurisdiction to hear the case if Boch-Saban establishes equitable tolling, an issue that the BIA should address in the first instance.

Analysis

The court found that Boch-Saban had waived any challenge to the BIA's self-certification decision and that the BIA's dismissal of his appeal as untimely was based on its interpretation of the regulations. However, the court noted that the thirty-day appeal filing rule is non-jurisdictional and subject to equitable tolling, which the BIA failed to consider. Therefore, the case was remanded for the BIA to address the issue of equitable tolling.

The court found that Boch-Saban had waived any challenge to the BIA's self-certification decision and that the BIA's dismissal of his appeal as untimely was based on its interpretation of the regulations. However, the court noted that the thirty-day appeal filing rule is non-jurisdictional and subject to equitable tolling, which the BIA failed to consider.

Conclusion

The court vacated the BIA's decision and remanded the case for consideration of the merits of the issue of equitable tolling.

The court vacated the BIA's decision and remanded the case for consideration on the merits of the issue of equitable tolling.

Who won?

The prevailing party is Boch-Saban, as the court vacated the BIA's decision and remanded the case for further consideration.

The prevailing party is Boch-Saban, as the court vacated the BIA's decision and remanded the case for further consideration.

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