The petitioners, natives and citizens of Belize, sought review of the BIA’s order summarily dismissing their appeal as untimely. The agency had previously treated the notice of appeal deadline under 8 C.F.R. § 1003.38(b) as jurisdictional, barring review regardless of the reasons for the delay.
While the petition was pending, the BIA overruled its prior position in Matter of Morales-Morales, 28 I. & N. Dec. 714 (2023). The Board determined that the notice of appeal deadline is subject to equitable tolling if a noncitizen demonstrates diligent pursuit of rights and extraordinary circumstances preventing timely filing.
The government argued that the Ninth Circuit lacked jurisdiction over the equitable tolling issue because the petitioners failed to raise it before the BIA. The court noted that intervening case law, specifically Vasquez-Rodriguez v. Garland, 7 F.4th 888 (9th Cir. 2021), meant it did not need to reach the exhaustion issue.
Instead, the panel remanded the case to the BIA to consider equitable tolling in the first instance, citing INS v. Orlando Ventura, 537 U.S. 12 (2002). The stay of removal remains in place until the mandate issues.
Each party must bear its own costs for this petition for review.