Immigration – Untimely brief

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Where the Board of Immigration Appeals declined to consider a petitioner’s late-filed brief, the BIA’s lack of explanation after the petitioner presented a plausible reason for the brief’s untimeliness warrants a remand.

“In this petition for review of a removal order, we consider whether the Board of Immigration Appeals (‘BIA’) abused its discretion by declining to consider the late-filed brief of petitioner Eldi López-Gómez (‘López’), a citizen of Guatemala. We conclude that the BIA’s lack of explanation after the petitioner presented a plausible reason for the brief’s untimeliness warrants a remand. …

“A remand for the BIA to further explain — and, if appropriate, reconsider — its decision not to consider López’s brief is necessary here. …

“The BIA’s lack of explanation is particularly troubling because López’s motion seems to present at least a colorable basis for the BIA to favorably exercise its discretion. The record indicates that López filed her brief electronically on the day that it was due but filed it in the wrong place. It also appears that López corrected the filing error on the day that she learned about it and filed a motion for the BIA to consider her brief on the day that she was alerted to the necessity for such a motion. The resulting delay was not extraordinary; rather, it was well within the period of extensions that the regulations authorize the BIA to grant in the ordinary course of proceedings. …

“In short, our review of the record suggests that López committed a procedural error but acted diligently to correct it. There may have been valid reasons for the BIA to decline to exercise its discretion to accept her brief, but we have no indication of what those reasons might be. In these circumstances, this lack of explanation constitutes an abuse of discretion. …

“The BIA rejected Lopez’s appeal primarily because she did not file a brief. We cannot predict how the BIA would have resolved Lopez’s appeal if it had considered her brief, and therefore we do not address her other arguments challenging the immigration judge’s rulings. … We therefore grant the petition and remand for further consideration consistent with this opinion.”

López-Gómez, et al. v. Bondi (Lawyers Weekly No. 01-205-25) (7 pages) (Aframe, J.) Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for the petitioners; Taryn L. Arbeiter, with whom Yaakov M. Roth and Leslie McKay were on brief, for the respondent (Docket No. 24-1921) (Sept. 22, 2025).

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