18‐204 Attipoe v. Barr 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2018 6 7 (Argued: February 6, 2019 Decided: December 19, 2019) 8 9 Docket No. 18‐204 10 11 ____________________ 12 13 EMELI KWASI ATTIPOE, AKA EMELI ATTIPOE, AKA ANDREW 14 C. MITCHELL, 15 16 Petitioner, 17 18 v. 19 20 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, 21 22 Respondent. 23 24 ____________________ 25 26 Before: POOLER, LOHIER, and CARNEY, Circuit Judges. 27 28 Petition for review of the January 18, 2018 decision of the Board of 29 Immigration Appeals (“BIA”) refusing to accept Emeli Attipoe’s untimely appeal 30 of an Immigration Judge’s July 8, 2016 order of removal to Ghana. The BIA erred 1 in refusing to consider whether the argument that the appeal deadline, which is 2 nonjurisdictional, is subject to an equitable tolling exception. We find that the 3 appeal deadline is a claim‐processing rule amenable to equitable tolling, and we 4 remand to the BIA to develop standards for equitable tolling and to determine 5 whether Attipoe qualifies for equitable tolling under those standards. 6 Petition granted. 7 ____________________ 8 MATTHEW J. MOFFA, Perkins Coie LLP (Gene W. Lee, 9 on the brief), New York, NY, for Petitioner Emeli Kwasi 10 Attipoe. 11 12 BRETT F. KINNEY, U.S. Department of Justice, Civil 13 Division, Office of Immigration Litigation (Joseph J. 14 Hunt, Assistant Attorney General, Kohsei Ugumori, 15 Senior Litigation Counsel, on the brief), Washington, 16 D.C., for Respondent William P. Barr. 17 18 TRINA REALMUTO, American Immigration Council 19 (Kristin Macleod‐Ball, on the brief), Brookline, MA, 20 amicus curiae in support of Petitioner. 21 22 POOLER, Circuit Judge: 23 Petition for review of the January 18, 2018 decision of the Board of 24 Immigration Appeals (“BIA”) refusing to accept Emeli Attipoe’s untimely appeal 2 1 of an Immigration Judge’s (“IJ”) July 8, 2016 order of removal to Ghana. The BIA 2 erred in refusing to consider whether the argument that the appeal deadline, 3 which is nonjurisdictional, is subject to an equitable tolling exception. We find 4 that the appeal deadline is a claim‐processing rule amenable to equitable tolling, 5 and we remand to the BIA to develop standards for equitable tolling and to 6 determine whether Attipoe qualifies for equitable tolling under those standards. 7 Petition granted. 8 BACKGROUND 9 Attipoe, a native and citizen of Ghana, entered the United States in 1998 as 10 a lawful permanent resident. In April 2015, Attipoe pled guilty in Connecticut to 11 attempted first‐degree larceny in violation of Connecticut General Statutes 12 (“CGS”) §§ 53a‐49 and 53a‐122. He was initially sentenced to three years’ 13 imprisonment (execution suspended) and three years’ probation, but the 14 sentence was later modified to simply impose a $1,950 fine. 15 In August 2015, the Department of Homeland Security (“DHS”) placed 16 Attipoe in removal proceedings based on his Connecticut conviction. DHS later 17 filed amended charges of removability, ultimately charging ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals