United States Court of Appeals For the First Circuit No. 20-1666 ANDREA JOY JAMES, Petitioner, v. MERRICK B. GARLAND,* Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Kayatta and Barron, Circuit Judges, and Saris,** District Judge. Trina Realmuto, with whom Kristin Macleod-Ball, Tiffany Lieu, National Immigration Litigation Alliance, and Kira Gagarin were on brief, for petitioner. Jeffrey R. Meyer, Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr. ** Of the District of Massachusetts, sitting by designation. October 25, 2021 KAYATTA, Circuit Judge. After an immigration judge (IJ) ordered petitioner Andrea Joy James removed from the United States, the Board of Immigration Appeals (BIA) dismissed James's appeal as untimely. In so doing, the BIA failed to address James's request to apply equitable tolling in assessing whether her appeal was timely. For that reason, we vacate the BIA's dismissal of James's appeal and remand for the BIA to assess in the first instance whether the thirty-day time limit for appealing the IJ's order should have been equitably tolled so as to render James's appeal timely. Our reasoning follows. I. James, a native and citizen of Jamaica, left that country in 1989 and entered the United States at an unknown place. She has lived in the United States since that time and has a U.S.- citizen daughter who also lives here. In December 1999, James was sentenced to over twenty-seven years of imprisonment after she was convicted of various drug offenses. In October 2019, following the completion of her criminal sentence, James was detained by U.S. Immigration and Customs Enforcement (ICE) in the Bristol County House of Correction (BCHOC) and placed in removal proceedings. The government charged James with being subject to removal based on her presence in the United States without having been admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and her controlled substance convictions, see id. §§ 1182(a)(2)(A)(i)(II), - 3 - (a)(2)(C). After those charges were sustained by the IJ, James applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) based on her fear of returning to Jamaica. At a hearing on February 19, 2020, at which James appeared pro se, the IJ denied James's requests for relief and ordered her removed to Jamaica. By regulation, any appeal was due "within 30 calendar days after" the IJ's decision. 8 C.F.R. § 1003.38(b). The written memorandum of the IJ's removal order, which was personally served on James the day of the hearing, listed an incorrect appeal deadline of March 18, 2020 (the correct deadline was March 20, 2020).1 By the time of James's removal hearing, the World Health Organization and the United States had declared COVID-19 a public health emergency. See …
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