NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2065
___________
BENOY THOMAS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A219-167-263)
Immigration Judge: Lisa de Cordona
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 26, 2021
Before: KRAUSE, BIBAS and SCIRICA, Circuit Judges
(Opinion filed: January 6, 2022)
___________
OPINION*
___________
PER CURIAM
Pro se petitioner Benoy Thomas, a native and citizen of India, petitions for review
of an order of the Board of Immigration Appeals (BIA), which dismissed as untimely his
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
appeal of an order issued by an Immigration Judge. For the following reasons, we will
deny the petition for review.
Thomas entered the United States in January 2016. The Government charged him
with removability for having been convicted of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled substance). 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Department of Homeland Security issued a Final
Administrative Removal Order, see Administrative Record (A.R.) 474, and, on January
21, 2021, the IJ rendered an oral decision denying Thomas’ applications for withholding
of removal and protection under the Convention Against Torture (CAT). A.R. 16.
Thomas filed a pro se notice of appeal, A.R. 11, which the Board received on March 1,
2021. A.R. 7-10. The Board summarily dismissed the appeal because it was untimely
filed. A.R. 2. Thomas filed a timely petition for review.1
A notice of appeal to the BIA of an IJ’s decision “shall be filed directly with the
Board ... within 30 calendar days after the stating of an Immigration Judge’s oral decision
or the mailing of an Immigration Judge’s written decision.” 8 C.F.R. § 1003.38(b). “If
the final date for filing falls on a Saturday, Sunday, or legal holiday, [the] appeal time
shall be extended to the next business day.” Id. The date the BIA received the notice of
appeal is the date it is considered filed. Id. at 1003.38(c). Indeed, an appeal is “not
properly filed unless it is received at the Board, along with all required documents, fees
1
We have jurisdiction under 8 U.S.C. § 1252(a).
2
or fee waiver requests, and proof of service, within the time specified.” 8 C.F.R.
§ 1003.3(a)(1); see also 8 C.F.R. § 1003.38(d) (providing that the notice of appeal “must
be accompanied” by the appropriate fee or fee waiver request form).
The IJ denied Thomas’ applications for relief in an oral decision issued on January
21, 2021. It appears that the IJ’s order was electronically served on Thomas’ attorney on
that date, A.R. 16-17, and was mailed to his attorney the next day, A.R. 15. Therefore,
Thomas’ notice of appeal had to be received by the Board by Monday, February 22,
2021. See 8 C.F.R. § 1003.38(b). The Board did not receive Thomas’ notice of appeal,
however, until March 1, 2021, one week too late. A.R. 7-10. Therefore, the Board
properly dismissed Thomas’ appeal as untimely filed.
We note that some courts have concluded that the 30-day time limit for filing a
notice of appeal to the BIA is not jurisdictional, and may be excused in extraordinary
circumstances. Irigoyen-Briones v. Holder, 644 F.3d 943, 949 (9th Cir. 2011); Zhong
Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105, 108-111 (2d Cir. 2005); cf. Huerta v.
Gonzales, 443 F.3d 753, 756 (10th Cir. 2006) (explaining that the 30-day deadline for
filing an appeal to the Board is a mandatory claim-processing rule). Thomas asserts in
his brief to this Court that he is detained and that “limited access to [the] Law Library and
computers” provided him with “less time” to draft legal filings. Pet’r’s Br. 4. He also
claims that he “sent the Appeal [on] time but as he is going Pro Se he forgot to [include]
the fee waiver” request. Thomas explains that this was an “honest mistake,” that he was
“unaware about the rules,” and that he “forgot to put the fee waiver” with his appeal. Id.
3
at 4, 13.
We lack jurisdiction to consider these claims because Thomas did not raise them
before the Board. An alien must exhaust all administrative remedies available to him as a
prerequisite to raising a claim before this Court. 8 U.S.C. § 1252(d)(1). Failure to
present an issue to the agency constitutes a failure to exhaust, thus depriving us of
jurisdiction to consider it. See Lin v. Att’y Gen., 543 F.3d 114, 119-20 (3d Cir. 2008).
Thomas asserts that, after the Board returned his notice of appeal “due to [the] missing
fee waiver,” he sent [the notice of appeal] [b]ack right away with the fee waiver and
memorandum explaining why it was delayed.” Pet’r’s Br. at 4. Notably, however, the
record does not contain evidence of this correspondence. And even if Thomas had
exhausted his arguments for excusing the 30-day limitations period, tolling would not be
justified. Indeed, his allegations do not constitute extraordinary circumstances, which
generally occur where there has been some form of “official misleading” or where there
has been a delay in delivery by an express mail service. Zhong Guang Sun , 421 F.3d at
109-11.
For the foregoing reasons, we will deny the petition for review.
4