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involves court review of an agency de- motion to reissue the decision is also filed some extraordinary circumstance stood failed to communicate with his client
cision. Thus, the conclusion seems ines- with the Board of Immigration Appeals in his way and prevented timely filing.” over a period of years, despite various
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capable that under Harrow, the petition to provide an alternate pathway to suc- In cases of “extraordinary” attorney pleas from Holland that Collins respond
for review deadline of 8 U.S.C. § 1252(b) cess. There is a good chance that those misconduct such as Holland, the Su- to his letters.
(1), like that of 5 U.S.C. § 7703(b)(1), is who preserve the issue will find, ultimate- preme Court has indicated that equitable Holland, 560 U.S. at 652. If a similar-
not jurisdictional. ly, that they have access to equitable toll- tolling may apply. In that case, ly egregious attorney failure causes late
Courts of Appeals might still defer ing, if they meet the criteria for it. Collins failed to file Holland’s fed- filing of a petition for review of a remov-
to Stone and find the petition for review It is important to keep in mind that eral petition on time despite Holland’s al order, Harrow suggests that equitable
deadline to be jurisdictional, because the it is not easy to qualify for equitable toll- many letters that repeatedly emphasized tolling may be available under Holland.
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Supreme Court has said in cases such as ing, even in areas of law where equitable the importance of his doing so. Collins Other extraordinary circumstances could
Agostini v. Felton, 521 U.S. 203 (1997) tolling is available. The Supreme Court apparently did not do the research nec- also qualify, depending on the details.
and Rodriguez de Quijas v. Shearson/ held in Menominee Tribe of Wis. v. Unit- essary to find out the proper filing date, Therefore, while the 30-day dead-
American Express, 490 U.S. 477 (1989) ed States, 577 U.S. 250 (2016), quoting despite Holland’s letters that went so far line for filing a petition for review of
that “[i]f a precedent of this Court has di- its earlier decision in Holland v. Florida, as to identify the applicable legal rules. a removal order remains crucial, and
rect application in a case, yet appears to 560 U.S. 631 (2010), that “a litigant is en- Collins failed to inform Holland in a should be complied with if at all possible,
rest on reasons rejected in some other line titled to equitable tolling of a statute of timely manner about the crucial fact that Harrow may give new hope to those who
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of decisions, the Court of Appeals should limitations only if the litigant establishes the Florida Supreme Court had decided have been prevented by extraordinary
follow the case which directly controls, two elements: “(1) that he has been pur- his case, again despite Holland’s many circumstances from complying with that
leaving to this Court the prerogative of suing his rights diligently, and (2) that pleas for that information. And Collins deadline.
overruling its own decisions.” Arguably,
following Harrow in the vast majority _________________________________________________________________________________________________________
of current immigration cases would not Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus
require overruling Stone – which, as pre-
viously mentioned, concerned an earlier D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task
version of the statute – but would mere- Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters
ly require declining to extend Stone’s Start Watching IndiaLife TV 24 Hours LIVE
holding regarding the former INA § to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member of the ABA
106 to the current INA § 242, 8 U.S.C. Commission on Immigration; board member of Volunteers for Legal Services and board member of New York Immi-
§ 1252. But even if Courts of Appeals do gration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration Council and
follow Stone, as the Seventh Circuit did
earlier this year despite Santos-Zacaria former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association. He is a
in F.J.A.P. v. Garland, at some point in frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct profes-
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the future, the Supreme Court, if it fol-
lows its unanimous decision in Harrow, sor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
should overrule this aspect of Stone. the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA
Thus, in any case where exceptional
circumstances have rendered it impossi- 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immi-
ble to comply with the 30-day deadline gration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked
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to file a petition for review of a removal
order, filing a late petition for review and among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019
citing Harrow is likely advisable, even if a and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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