The Immigration & Nationality Act (INA); Whether the petition for judicial review of the Board of Immigration Appeals’ (BIA) asylum denial was untimely under 8 USC § 1252(b)(1); Whether § 1252(b)(1) is subject to “equitable tolling”; Riley v Bondi; Whether petitioner was entitled to equitable tolling; Jin Yin Zhou v Bondi; Actual notice of the filing requirement; Constructive knowledge; Convention Against Torture (CAT); Immigration judge (IJ)

The court dismissed as untimely petitioner-Oxlaj-Perez’s petition for review of the BIA’s decision affirming denial of his asylum, withholding of removal, and CAT protection application. It held that under Riley, § 1252(b)(1) is subject to equitable tolling, but he was not entitled to it where, among other things, he had actual notice of the filing requirement. Oxlaj-Perez sought asylum, withholding of removal, and CAT protection based on his persecution as an Indigenous Quiche Mayan in Guatemala. The IJ denied his application and the BIA affirmed the decision. The government argued that his petition for the court’s review was untimely because he filed it after § 1252(b)(1)'s 30-day limitations period had expired, and that the statute was not subject to equitable tolling. The court began by holding that contrary to its prior precedent, § 1252(b)(1) is subject to equitable tolling under the Supreme Court’s decision in Riley, where the Supreme Court held that the statutory deadline is not jurisdictional but is instead a “claims-processing rule.” Considering the text of the statute, and the presumption that “Congress intends for tolling, the fact that the statute ‘does not expressly prohibit equitable tolling’ is critical.” The statute’s plain language did not “displace the presumption of tolling.” Additionally, the court found that “the INA’s overall scheme” supported allowing equitable tolling. It rejected the government’s attempts to rebut the presumption and its “argument that Oxlaj-Perez waived any challenge to the timeliness of his petition for review by failing to raise it in his opening brief.” Turning to the question of whether he was entitled to equitable tolling, the court applied the factors in Jin Yin Zhou and held that he was not where he “had actual notice of the filing requirement because it was included with the” BIA’s decision. And even if he did not have actual notice, he had “constructive knowledge of the” requirement. He also failed to establish “that he acted diligently during the 79 days before he filed his petition for review.” Further, the government might be prejudiced by the delay, and “it was not reasonable for Oxlaj-Perez to remain ignorant of the legal requirement for filing his claim” under the circumstances.