Perez Rojas v. Blanche
CourtCourt of Appeals for the Fifth Circuit
Date FiledOctober 30, 2026
Docket26-60044
StatusUnpublished
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Full Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 26-60044 October 30, 2026
____________
Thomas B. Plunkett, III
Clerk
Grecia Josefina Perez Rojas,
Petitioner,
versus
Todd Wallace Blanche, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A245 540 699
______________________________
Before Elrod, Chief Judge, and King and Stewart, Circuit Judges.
Per Curiam:*
Petitioner Grecia Josefina Perez Rojas, a native and citizen of
Venezuela, entered the United States on December 2, 2023, without
inspection or valid entry documentation. After her applications for asylum,
withholding of removal, and protection under the Convention Against
Torture were denied by an immigration judge, she was ordered removed on
December 18, 2024. Perez Rojas’s appeal of this decision to the Board of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 26-60044
Immigration Appeals (BIA) was summarily dismissed as untimely. Perez
Rojas now petitions for review of the BIA’s decision dismissing her appeal.1
Because the record before the BIA was insufficient to determine whether
equitable tolling is appropriate, the petition for review is GRANTED and
the case is REMANDED.
I
Petitioner Perez Rojas is a native and citizen of Venezuela who entered
the United States on December 2, 2023, without inspection and without valid
entry documentation. Two days later, the Department of Homeland Security
commenced removal proceedings against Perez Rojas under 8 U.S.C. §
1182(a)(6)(A)(i) as an alien present in the United States without having been
admitted or paroled. Perez Rojas applied for asylum, withholding of removal,
and protection under the Convention Against Torture. An immigration
judge denied her applications and ordered her removed to Venezuela on
December 18, 2024. The deadline to appeal this order was January 17, 2025.
On January 13, 2025, Perez Rojas timely filed a notice of appeal from
the immigration judge’s decision. The BIA rejected this appeal the following
day because Perez Rojas failed to include her signature or a certificate of
service. The notice of rejection stated that any corrected appeal must be filed
within 15 days from the date of the notice.
Perez Rojas refiled a notice of appeal on March 6, 2025. Attached to
the notice were several documents, including: an affidavit from Perez Rojas
requesting that the BIA accept her late filing and stating that she did not have
access to the mailbox in which the rejection notice was sent until February
22, 2025; a letter from her apartment complex corroborating her affidavit;
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1
Although the BIA’s decision dismissed an appeal by Perez Rojas and one of her
minor children, Perez Rojas’s petition for review lists only herself as the Petitioner.
2
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No. 26-60044
and letters from a hospice facility and the Texas Children’s Hospital stating
that Perez Rojas had been caring for her terminally ill child Nevertheless, the
BIA summarily dismissed Perez Rojas’s appeal on January 14, 2026, because
of her failure to timely cure the defects in her notice of appeal. In its decision,
the BIA noted that Perez Rojas’s inability to access her mailbox did not
constitute an extraordinary circumstance justifying equitable tolling because
an alien is required to provide an address where they can receive mail. See 8
U.S.C. § 1229(a)(1)(F); 8 C.F.R. § 1003.15(d)(2). The BIA did not address
whether Perez Rojas’s child’s terminal cancer diagnosis and months long
stay in the pediatric intensive care unit constituted an extraordinary
circumstance.
II
In Mata v. Lynch, the Supreme Court clarified that we have
jurisdiction over immigration appeals seeking equitable tolling. 576 U.S. 143,
149–50 (2015). While this was not always our practice, we now assert
jurisdiction over these appeals. See Lugo-Resendez v. Lynch, 831 F.3d 337, 343
(5th Cir. 2016) (offering a fuller discussion of the history of jurisdiction over
equitable tolling appeals).
We review the BIA’s summary dismissal of an appeal for an abuse of
discretion. Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir. 2003).
An appeal from an immigration judge’s decision must be filed with the
BIA “within 30 calendar days . . . of an [i]mmigration [j]udge’s oral decision
or the mailing or electronic notification of an [i]mmigration [j]udge’s written
decision.” 8 C.F.R. § 1003.38(b). The BIA may equitably toll the deadline
to file an appeal if (1) the alien pursued her claim with diligence and (2)
“some extraordinary circumstance stood in [her] way and prevented timely
filing.” Gonzalez-Cantu v. Sessions, 866 F.3d 302, 305 (5th Cir. 2017) (citing
Lugo-Resendez v. Lynch, 831 F.3d at 344). The first element requires only
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“reasonable diligence,” not “maximum feasible diligence.” Lugo-Resendez,
831 F.3d at 344 (quoting Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012)).
The second element requires that the “extraordinary circumstance” be
beyond the alien’s control and that it prevent them from complying with the
applicable deadline. Id. (quoting In re Wilson, 442 F.3d 872, 875 (5th Cir.
2006)).
III
Perez Rojas asserts that the BIA abused its discretion by dismissing
her appeal without fully considering whether there existed extraordinary
circumstances justifying equitable tolling.2 Perez Rojas provided evidence of
her inability to access her mailbox and her infant child’s terminal cancer
diagnosis and months long hospital stay, claiming that those were
extraordinary circumstances that prevented her from timely appealing. We
review the BIA’s decision to not apply equitable tolling.
Beginning with the first prong, there is no dispute that Perez Rojas
pursued her appeal with at least “reasonable diligence.” See Lugo-Resendez,
831 F.3d at 344 (quoting Manning, 688 F.3d at 183). Turning to the second
prong, the parties disagree as to whether Perez Rojas has established the
existence of an extraordinary circumstance beyond her control.
While we recognize that equitable tolling is only used in “rare and
exceptional circumstances,” United States v. English, 400 F.3d 273, 275 (5th
Cir. 2005) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)), we
also note that “the doctrine of ‘equitable tolling does not lend itself to bright-
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2
We note that Perez Rojas also asserts a due process claim. However, we do not
review that claim because it relates to her proceeding in front of the immigration judge.
“Our court reviews only the BIA’s decision unless the BIA expressly adopted the
[immigration judge]’s reasoning.” Bonilla Rivas v. Bondi, 2025 WL 3124838, at *2 (5th Cir.
Nov. 7, 2025) (citing Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010)).
4
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line rules.’” Lugo-Resendez, 831 F.3d at 344 (quoting Fisher v. Johnson, 174
F.3d 710, 713 (5th Cir. 1999)). We have long held that “[c]ourts must
consider the individual facts and circumstances of each case in determining
whether equitable tolling is appropriate.” Id. at 344–45 (quoting Alexander
v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002)).
Here, the BIA did not consider Perez Rojas’s individual
circumstances. Perez Rojas provided a letter from hospice and from the
hospital confirming that her young child was terminally ill during the
pendency of her case and stating that Perez Rojas needed to provide around
the clock care to her child. The letters also clarified that Perez Rojas’s infant
child had been admitted to the pediatric intensive care unit on December 2,
2024, and remained admitted, for the duration of the case. The BIA made
no mention of those facts when summarily denying Perez Rojas’s appeal as
untimely. The BIA’s failure to address this argument in its summary
dismissal constituted an abuse of discretion. See id. at 343 (“[T]he BIA
abused its discretion by ignoring Lugo-Resendez’s equitable tolling
argument.”).
Accordingly, the proper course is to remand to the BIA for further
factual development and determination of the issue. See id. at 344 (quoting
Rivera v. Quarterman, 505 F.3d 349, 354 (5th Cir. 2007)); see also Barajas-
Flores v. Sessions, 702 F. App’x 193, 195 (5th Cir. 2017) (remanding for
consideration of whether equitable tolling is appropriate).
IV
Perez Rojas’s petition for review is GRANTED, and we REMAND
for consideration of whether equitable tolling is appropriate.
5