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IMMIGRATION MAY 31, 2024 | The Indian Eye 48

Harrow v. Department of Defense and

What it Means for Immigration Cases:

the 30-Day Time Limit for Filing a Petition for

Review Is Still Very Important, But Probably

Not Jurisdictional Anymore

DAVID ISAACSON new hope to people for whom it trious sources as the American tion Board finally decided Mr. counts as jurisdictional, but we
was not possible to comply with Immigration Council’s practice Harrow’s case, his email address have already made plain its ex-
n May 16, 2024, the U.S. this critical deadline. advisory on petitions for review had changed, and he missed the ceptional nature. As the Gov-
Supreme Court issued Under 8 U.S.C. § 1252, the and others as well, has been initial notice of the decision. ernment notes, the Court held
Oits opinion in Harrow v. only way to seek judicial review that this is true of the current As a result, he also missed the in Bowles v. Russell, 551 U. S.
Department of Defense. While of an order of removal, with very version of the statute as well. deadline to file a petition for re- 205 (2007), that the deadline for
this case did not relate in any rare exceptions, is a petition No matter how compelling the view of the decision: 5 U.S.C. § filing an appeal from a district
obvious way to immigration, for review in the appropriate circumstances, that is, a peti- 7703(b)(1) provides that “Not- court’s decision in a civil case is
its holding and reasoning has a Court of Appeals. According tion for review filed outside of withstanding any other provi- jurisdictional, even though the
significant implication for peo- to 8 U.S.C. § 1252(b)(1), “The the 30-day time limit could not sion of law, any petition for re- statute setting that limit does
ple seeking review of removal petition for review must be filed be considered. The remedy in view shall be filed within 60 days not say as much. See Brief for
orders in federal court. Spe- not later than 30 days after the extreme cases was to move the after the Board issues notice of United States 24. In that de-
cifically, Harrow implies that date of the final order of remov- Board of Immigration Appeals the final order or decision of the cision, we reaffirmed a line of
the 30-day deadline for filing a al.” More than 29 years ago, the (or other agency component Board.” precedents pre-dating our cur-
petition for review of a removal Supreme Court held in Stone v. that had issued a reviewable The Court of Appeals for rent approach to such matters.
order is not “jurisdictional”, in INS, 514 U.S. 386 (1995), with removal order) to reopen the the Federal Circuit held that See 551 U. S., at 209–210, and n.
the sense of being something respect to a previous version of proceedings and reissue its de- Mr. Harrow’s untimely petition 2. But we have since taken care
that cannot be waived and has the statute, that the time limit cision so that a timely petition for review could not be consid- to delineate both where Bowles
no equitable exceptions. It is for filing a petition for review for review could be filed. Mo- ered, despite his explanation. As applies and where it does not.
still crucial to file a petition for was “mandatory and jurisdic- tions to reissue are not readily the Supreme Court explained: Bowles governs statutory dead-
review in federal court within 30 tional” and “not subject to equi- granted, although a denial of a The Court of Appeals de- lines to appeal “from one Arti-
days of a removal order if at all table tolling”. The conventional motion to reissue can itself be clined Harrow’s request for eq- cle III court to another.” Ham-
possible, but Harrow could give wisdom, expressed by such illus- subject to judicial review, and uitable consideration, believing er v. Neighborhood Housing
the Courts of Appeals have it had an absolute obligation to Servs. of Chicago, 583 U. S. 17,
sometimes granted peti- dismiss his appeal. The court 25 (2017). As to all other time
tions for review of a refusal reasoned that the 60-day statu- bars, we now demand a “clear
to reissue and remanded tory deadline is a “jurisdictional statement.” Id., at 25, n. 9. This
to the BIA where there requirement,” and therefore case falls outside the Bowles
are potentially convincing “not subject to equitable toll- exception because Harrow ap-
allegations of ineffective ing.” App. to Pet. for Cert. 2a. pealed to the Federal Circuit
assistance of counsel, as in “Harrow’s situation” might be not from another court by from
Zhao v. INS, 452 F.3d 154 “sympathetic,” the court stated, an agency.
(2d Cir. 2006), or possible but it was also irrelevant. Ibid. Harrow, slip op. at 8. Thus,
failure by the BIA to send Given the deadline’s jurisdic- as a non-jurisdictional time lim-
a decision properly, as in tional nature, the court lacked it, the 60-day limit for a petition
Jahjaga v. Att’y Gen., 512 the capacity to “excuse a failure for review in Harrow was pre-
F.3d 80 (3d Cir. 2008). to timely file based on individu- sumptively subject to equitable
The Supreme Court al circumstances.” Ibid. tolling, although the govern-
held last year in San- Harrow, slip op. at 2. ment was given the opportunity
tos-Zacaria v. Garland The Supreme Court unani- to rebut that presumption on
that the requirement of mously disagreed with the Fed- remand if it could (unless it had
exhaustion of remedies eral Circuit, holding that the waived the issue, a question the
in 8 U.S.C. § 1252(d)(1) deadline at issue in Harrow was Supreme Court also declined to
is not jurisdictional, but it not jurisdictional. Under recent resolve). Id. at 9.
did not address whether precedent, the Supreme Court The language of 8 U.S.C. §
this was true of the 30-day explained, it “will treat a proce- 1252(b)(1) relating to petitions
deadline. The Supreme dural requirement as jurisdic- for review of removal orders is
Court’s recent decision tional only if Congress ‘clearly very similar to the language of
in Harrow, however, states’ that it is.” Harrow, slip 5 U.S.C. § 7703(b)(1) that was
suggests that the 30-day op. at 3. The statute at issue in at issue in Harrow. If anything,
m of deadline is very likely not Harrow, the Supreme Court it is less emphatic, saying only
jurisdictional either.
that “The petition for review
pointed out, contains “no men-
CYRUS D. MEHTA & PARTNERS PLLC The petitioner in tion of the Federal Circuit’s ju- must be filed not later than 30
Harrow, Stuart Harrow, risdiction, whether generally or days after the date of the final
had sought review by the over untimely claims.” Id. at 5. order of removal.” Unlike the

Merits Systems Protection Absent a clear mention of juris- deadline at issue in Harrow, the
Board in 2013 regarding a diction, current Supreme Court deadline for an immigration pe-

  six-day furlough. His case precedent generally holds time tition for review is not stated to
   
­ dragged on for years, be- limits to be non-jurisdictional.
€
‚   operate “[n]otwithstanding any
cause the Merits Systems There is an exception regard- other provision of law.” And
Protection Board did not ing a notice of appeal from one like the petition for review at
have a quorum of mem- court to another, but as the Su- issue in Harrow, a petition for
preme Court explained, it is a
review in an immigration case
bers for much of the time
that the case was pending limited one: does not involve an appeal from
2 6th Floor before it. By 2022, when The Government identi- one Article III Court to an-

    the Merits Systems Protec- fies one kind of time limit that other, as in Bowles, but rather
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