A Guatemalan national who fled gang persecution applied for asylum, withholding of removal, and Convention Against Torture protection, but an immigration judge denied her requests on August 6, 2021. The First Circuit Court of Appeals has now decided that equitable tolling applies when a guaranteed delivery service fails to fulfill its guarantee, vacating the Board of Immigration Appeals’ dismissal of her appeal and requiring reconsideration.
What changed
The applicant mailed her Notice of Appeal to the BIA via FedEx next-day delivery on September 4, 2021, expecting arrival by the September 7 deadline. FedEx delivered the package on September 8, and the BIA summarily dismissed the appeal as untimely. The applicant requested the BIA accept the late filing, arguing that FedEx’s failure warranted equitable tolling of the appeal deadline.
The BIA denied the request but the First Circuit found that the BIA applied an incorrect legal standard by disregarding counsel’s representation and failing to consider supporting evidence, such as the FedEx label and tracking information. The court held that the BIA abused its discretion by not applying its own precedent from Matter of Morales-Morales, which allows for equitable tolling when a guaranteed delivery service fails to fulfill its guarantee. The First Circuit granted the petition, vacated the BIA’s order, and remanded for further proceedings.
Why it matters
This decision directly affects how you advise clients on filing deadlines in the First Circuit (Massachusetts, Rhode Island, Puerto Rico, New Hampshire, Maine). Gang persecution cases—where members have murdered family members or attempted to kill applicants—form a recurring class of removal defense appeals. If your client’s Notice of Appeal or motion is sent via an overnight courier service that fails to deliver on time despite a guaranteed-delivery promise, you now have a binding First Circuit precedent permitting equitable tolling, rather than a summary dismissal based on literal timeline breach.
The court’s instruction to apply Matter of Morales-Morales precedent means the BIA must evaluate the substantive equitable-tolling factors—extraordinary circumstances beyond the applicant’s control—rather than dismissing the appeal on procedural grounds alone. This creates a meaningful second opportunity to be heard on the merits in cases where courier failure, not attorney negligence or client delay, caused the miss.
Way forward
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Document delivery details: When using overnight courier services for BIA filings, retain FedEx tracking numbers, delivery confirmations, and the original receipt showing the sent-by and expected-delivery dates. These form the evidentiary foundation for any future tolling motion.
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Meet internal deadlines early: File your Notice of Appeal at least 2–3 calendar days before the 30-day deadline to create a buffer against courier delays, particularly around federal holidays (which contributed to the delay in Diaz-Valdez).
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File tolling motions promptly and substantively: If a filing misses the deadline due to courier failure, immediately request BIA reconsideration and cite Matter of Morales-Morales and Diaz-Valdez v. Garland directly. Argue extraordinary circumstances and applicant diligence, with documentary proof of delivery commitment and failure.
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Verify First Circuit application: This precedent applies to appeals in the First Circuit (1st Cir. jurisdiction). If your client is in another circuit, check local BIA and circuit court case law for similar or divergent tolling standards.
Disclaimer
We are a software company, not a law firm, and this summary is not legal advice. Equitable tolling is a complex doctrine and the facts of each case matter significantly. This article describes Diaz-Valdez v. Garland (1st Cir. 2024) and Matter of Morales-Morales as applied in that opinion, but you must review the full court filings and consult a licensed immigration attorney licensed in your jurisdiction to evaluate your client’s specific situation. Immigration law and BIA procedure change without notice; verify all claims against the primary source documents linked above before relying on them in practice.