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Attipoe v. Barr

United States Court of Appeals, Second Circuit

December 19, 2019

EMELI KWASI ATTIPOE, AKA EMELI ATTIPOE, AKA ANDREW C. MITCHELL, Petitioner,
v.
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.

          Argued: February 6, 2019

         Petition for review of the January 18, 2018 decision of the Board of Immigration Appeals ("BIA") refusing to accept Emeli Attipoe's untimely appeal of an Immigration Judge's July 8, 2016 order of removal to Ghana. The BIA erred in refusing to consider whether the argument that the appeal deadline, which is nonjurisdictional, is subject to an equitable tolling exception. We find that the appeal deadline is a claim-processing rule amenable to equitable tolling, and we remand to the BIA to develop standards for equitable tolling and to determine whether Attipoe qualifies for equitable tolling under those standards.

         Petition granted.

          MATTHEW J. MOFFA, Perkins Coie LLP (Gene W. Lee, on the brief), New York, NY, for Petitioner Emeli Kwasi Attipoe.

          BRETT F. KINNEY, U.S. Department of Justice, Civil Division, Office of Immigration Litigation (Joseph J. Hunt, Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, on the brief), Washington, D.C., for Respondent William P. Barr.

          TRINA REALMUTO, American Immigration Council (Kristin Macleod-Ball, on the brief), Brookline, MA, amicus curiae in support of Petitioner.

          Before: POOLER, LOHIER, and CARNEY, Circuit Judges.

          POOLER, Circuit Judge.

         Petition for review of the January 18, 2018 decision of the Board of Immigration Appeals ("BIA") refusing to accept Emeli Attipoe's untimely appeal of an Immigration Judge's ("IJ") July 8, 2016 order of removal to Ghana. The BIA erred in refusing to consider whether the argument that the appeal deadline, which is nonjurisdictional, is subject to an equitable tolling exception. We find that the appeal deadline is a claim-processing rule amenable to equitable tolling, and we remand to the BIA to develop standards for equitable tolling and to determine whether Attipoe qualifies for equitable tolling under those standards. Petition granted.

         BACKGROUND

         Attipoe, a native and citizen of Ghana, entered the United States in 1998 as a lawful permanent resident. In April 2015, Attipoe pled guilty in Connecticut to attempted first-degree larceny in violation of Connecticut General Statutes ("CGS") §§ 53a-49 and 53a-122. He was initially sentenced to three years' imprisonment (execution suspended) and three years' probation, but the sentence was later modified to simply impose a $1, 950 fine.

         In August 2015, the Department of Homeland Security ("DHS") placed Attipoe in removal proceedings based on his Connecticut conviction. DHS later filed amended charges of removability, ultimately charging Attipoe as removable for his convictions of two or more crimes involving moral turpitude based on both his Connecticut conviction and a 2013 Texas conviction for theft, an aggravated felony involving fraud or deceit in which the loss exceeded $10, 000, and an attempt to commit an aggravated felony. In July 2016, following a hearing, the IJ ordered Attipoe removed.

         As relevant here, the IJ concluded that Attipoe's attempted larceny conviction under CGS §§ 53a-49 and 53a-122 was an aggravated felony, rendering Attipoe statutorily ineligible for cancellation of removal. In analyzing the issue, the IJ employed a modified categorical approach, delved into the disposition and plea minutes. The IJ determined that Attipoe was convicted of attempting to obtain property in excess of $10, 000 through false pretenses, an aggravated felony under two subsections of 8 U.S.C. § 1101: (a)(43)(M)(i), fraud with loss to victim in excess of $10, 000; (U), attempt to commit aggravated felony. The IJ's decision did not inform Attipoe of his right to appeal or the deadline for doing so, and the cover letter accompanying the decision did not check off the option stating that the IJ's "decision is final unless an appeal is filed with the Board of Immigration Appeals within 30 calendar dates of the date of the mailing of this written decision." App'x at 433.

         Attipoe received a copy of the IJ's decision from his lawyer, Saul Brown, roughly a week after it issued. Attipoe then called Brown, who told Attipoe he would charge between $2, 000 and $3, 000 to handle Attipoe's appeal. Unable to afford Brown's fee, Attipoe asked around at the detention center for attorney referrals, and someone suggested Michael Reeves. Other detainees vouched for Reeves, and Attipoe contacted him a day or two after speaking with Brown. Attipoe entered into an agreement for Reeves to file a notice of appeal and habeas corpus petition for $500, and Attipoe's sister paid Reeves on July 19, ...


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