Relief from removal; Failure to meet the 30-day appeal deadline; 8 CFR § 1003.38(b); Whether the filing deadline was jurisdictional or “a mandatory claim-processing rule”; Jurisdiction to review under the “safe harbor” provision (8 USC § 1252(a)(2)(D)); Whether the Board of Immigration Appeals’ (BIA) jurisdiction was restricted by the 30-day deadline; Whether the two-part test in Holland v Florida (requiring extraordinary circumstances & due diligence) applied to tolling issues; Whether petitioner’s factual circumstances met Holland’s elements; Deferential standard of review; Immigration judge (IJ)

The court denied petitioner-Baro’s petition for review of the BIA’s denial of her motion to equitably toll the 30-day appeal deadline as to the denial of her application for relief from removal, holding that she failed to meet the required due-diligence element. It also held that this 30-day deadline is not jurisdictional and that courts should review the BIA’s ultimate equitable-tolling conclusions under a deferential standard. Baro failed to appeal the denial of relief from removal within the 30-day time limit. She asked the BIA to equitably toll the deadline for her delayed appeal, citing her hospitalization for sickle-cell anemia and her struggles to engage a new attorney. The BIA denied her request, ruling that she “failed to offer objective medical evidence” that her health problems continued after she was discharged from the hospital, and that her inability to obtain an appointment with her new attorney for several weeks “was not an extraordinary circumstance that could toll the deadline.” Thus, it dismissed her appeal as untimely. On her petition for review, the court first held that it had jurisdiction in this case where the filing deadline was not jurisdictional but was instead a mandatory claim-processing rule. It held that it had jurisdiction to review under the statutory “safe harbor” provision, and that the BIA had jurisdiction as well because the 30-day time limit in “§ 1003.38(b) did not restrict its jurisdiction.” Turning to the merits of petitioner’s equitable tolling claim, the court applied “Holland’s extraordinary-circumstances and due-diligence elements.” It concluded that it could rely solely on the latter to reject her arguments, so it assumed without deciding that she established the former based on her health struggles. The court found against her on the due-diligence element because Baro had known of the IJ’s decision, the BIA reasonably concluded that she “did not act with diligence after leaving the hospital[,]” she admitted she was aware that she had “missed” the deadline, and “she did not act with any sense of urgency in trying to appeal.” The court concluded that her “failure to meet the deadline even after retaining counsel confirms her lack of diligence.”