Reported / Citable
Background
Jesus Ruben Garcia Corrales, a Mexican national who entered the United States without inspection as a child, was placed in removal proceedings in 2020. An immigration judge found him removable and denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Garcia had thirty days to appeal to the Board of Immigration Appeals (BIA).
Garcia’s attorney mailed a notice of appeal by USPS certified mail eleven calendar days before the February 15, 2024 deadline — an interval that normally provides a comfortable margin, since certified mail typically takes two to five business days. The envelope left Tempe, Arizona on February 5, 2024 and was not delivered to the BIA’s Falls Church, Virginia address until March 18, 2024 — forty-two days later. The BIA dismissed Garcia’s appeal as untimely.
Garcia then filed a document plainly captioned as a motion to reopen, asking the BIA to equitably toll the appeal deadline because the postal delay was an extraordinary circumstance beyond his control. The BIA, however, treated the filing as a motion to reconsider — which must be filed within thirty days of the order being challenged. Because Garcia’s motion came more than thirty days after the dismissal, the BIA denied it as untimely. Garcia petitioned the Ninth Circuit for review.
The Court’s Holding
The Ninth Circuit granted the petition and remanded, holding that the BIA was obligated to treat Garcia’s filing as a motion to reopen rather than a motion to reconsider. The distinction matters enormously for deadlines: a motion to reconsider must be filed within thirty days, while a motion to reopen may be filed within ninety days.
The court explained that motions to reconsider and motions to reopen are distinct procedural vehicles with different purposes. A motion to reconsider must point to errors of fact or law in the prior BIA decision; it is evaluated on the same record already before the BIA. A motion to reopen, by contrast, is premised on evidence that was not before the BIA when it issued its earlier ruling. Garcia’s filing rested on the USPS tracking printout — concrete evidence of a forty-two day delay that plainly did not exist when the BIA dismissed his appeal as untimely. That makes it a motion to reopen, regardless of label. The BIA is obligated under its own regulations and Ninth Circuit precedent to respect that classification when the new evidence was not previously available.
The Ninth Circuit did not resolve the underlying equitable tolling question — that is for the BIA to address on remand. But the court instructed the BIA to provide specific, cogent reasons if it concludes a forty-two day certified-mail delay does not constitute an extraordinary circumstance warranting relief.
Key Takeaways
- The BIA must honor the label and substance of a motion to reopen when it is premised on evidence not available at the time of the earlier BIA ruling — regardless of how the BIA internally categorizes the filing.
- A motion challenging an untimely appeal on the ground that delivery of the notice of appeal was grossly delayed is properly a motion to reopen (ninety-day deadline), not a motion to reconsider (thirty-day deadline).
- The USPS tracking history for a certified-mail envelope can constitute the necessary new evidence to support a motion to reopen in the BIA appeal-timeliness context.
- On remand, the BIA must apply the motion-to-reopen standard — evaluating equitable tolling for extraordinary circumstances and due diligence — not the motion-to-reconsider standard that requires identifying errors in the prior decision.
- Immigration practitioners should document every step of a mailing (date, method, tracking number) and promptly seek equitable tolling if delivery is unexpectedly delayed, filing within ninety days of the dismissal order.
Why It Matters
This decision protects immigration practitioners and their clients from a trap that can arise from unpredictable postal delays — a risk that has grown more salient as the USPS experiences periodic service disruptions. By confirming that a mail-delay challenge is a motion to reopen rather than a motion to reconsider, the Ninth Circuit preserves a petitioner’s ability to seek equitable tolling without the harsh thirty-day limit cutting off the argument before it can be heard.
For California immigration attorneys filing notices of appeal with the BIA, the practical lesson is clear: if a notice of appeal is lost or delayed in the mail, file a motion to reopen (not a motion to reconsider) within ninety days of the dismissal, attach the tracking documentation, and specifically invoke equitable tolling. Labeling and framing matter in BIA practice, and this decision confirms the BIA cannot recharacterize a properly labeled motion to reopen merely because it involves an untimely appeal.