The 2nd Circuit Federal Court of Appeals has ruled that immigrants who missed the 30 day deadline for filing their notice of appeal from an Immigration Judge’s order of deportation, may be able to have that deadline equitably tolled, and to have their appeal heard on the merits, rather than have it dismissed. This decision offers hope to immigrants who have been ordered deported; who have otherwise meritorious appeals; and who missed the filing deadline despite their best efforts under the circumstances.
The Court’s decision in Attipoe v. Barr, involved an immigrant whose efforts to appeal his deportation order were frustrated by the Judge’s failure to provide him proper notice of his right to appeal; by the fact his detention by ICE limited his efforts to retain an attorney; and by his attorney’s failure to file his notice of appeal on time. The Court reversed the Board of Immigration Appeals’ determination that missing the 30 day filing deadline by even one day meant the appeal must be dismissed – even if the non-citizen had a winning legal argument, and even if the late filing was not the immigrant’s fault.
In Attipoe, the Court rejected the BIA’s use of such a strict deadline to dismiss an otherwise meritorious appeal. The Court directed the Board to formulate standards to determine when a late filed appeal should be subject to “equitable tolling”. The Court’s decision in Attipoe offers new hope for immigrants who diligently tried to appeal of their deportation order, but whose appeals were dismissed due to a missed deadline, and through no fault of their own.
If you, a family member, or a friend have been deprived of the chance to appeal a deportation order due to a missed filing deadline; and if the order was entered by a Judge sitting in an Immigration Court located in New York or Connecticut; then the Second Circuit’s decision in Attipoe may provide a way for that appeal to be heard, even if the filing deadline was missed, provided you can show the non-citizen act diligently in pursuing his rights during the 30 day period for filing the appeal, and in the period after the deadline and until actually filing a motion to accept a late filed notice of appeal. If you or someone you know has had their appeal dismissed through no fault of their own, contact our office to schedule a consultation so we may determine whether the protections of the Attipoe decision apply to you.