petitioner thank you your honor and may please the court petitioner emily at apollo is a twenty year permanent resident of the united states and a father to two u s citizen children who diligently pursued his rights in the face of extraordinary an circumstances over three and a half years of detention but for the immigration judges erroneous analysis of his statute of conviction and error which is uncontested here mr at a pub would be eligible to stay in this country he made multiple pro se and counsel filings to the board of immigration appeals appealing that error but even after the board requested a complete merits briefing it dismissed his appeal as untimely with one board member notably dissenting that dismissal is legally erroneous the board could and should have accepted that appeal by either of two distinct procedures equitable tolling of the thirty day deadline set forth at eight c f r one thousand and three point three  or self certification under one thousand and three point one c now mr adipose asked for the former but the board without explanation analyzed his request under the latter and as amick is counsel is going to address the standard discretion and in large part unreviewable discretion to reach certification decisions however the board if it denies certification under a misperception of the law or a misunderstanding of its own jurisdiction it's appropriate to remain and again that comes from strata eight seventeen after seventy one no one so that is an error of law that this court can review here three things your honor in the certification analysis the board misperceive the law governing pro se filings that set forth by the circuit it misperceived the standard to apply to mr adipose motion and it failed to consider the divisibility of the statute of conviction under the correct last what is the right standard i case the board opinion said that a appeal was filed two months after the filing deadline it ignores papers the mr adipose sent two days after that deadline and two weeks after that deadline so first the standard requires a special care for pro se litigants those papers were return adipose with a form to fill out after the deadline had passed for a notice of appeal that mishandling of a pro se litigant under this court's rulings but wait a second the the regulations that must be filed within thirty days it wasn't filed within thirty days i think no party disputes that we have said discretionary that self certification is from a discretionary view that's not reviewable by this court and the regulations that the  so where did the agency err well judge carney i would point to this court's decisions in the con and sun cases as you point out the certification regulation has been present for a long time but in both the sun and con cases this court reminded to the board of immigration appeals to apply the right and now it's just a timely filing those again were cases where it was also uncontested that the papers came in a few days after the filing deadline but honor i respectfully disagree and i would point to the decision itself because as you can see the the board in the last two sentences of its majority opinion i'm sorry of the  ultimate paragraph merely cites the sun decision which it says explaining that the board may hear late fall appearances in unique or extraordinary circumstances but your honor to be very clear they did not apply a unique or extraordinary circumstances test in this case that is what sun mandates and that is not what the board did in fact what the board purported to do is apply matter of lazard a case for ineffective assistance of counsel when mr adipose had never alleged that it was a circumstances are a different standard than unique or extraordinary circumstances exceptional circumstances are exactly what judge carney has noted that's the discretionary analysis that the board can self certify cases under one thousand three point one see that is not unique or extraordinary circumstances that standard between an exceptional circumstance and a unique story news as well as this is the difference for me has this court had set exceptional circumstances is something that's charged to the discretion of the board of immigration appeal it has not set forth with the exceptional circumstances standard is unique and extraordinary circumstances comes from a large body of case law regarding equitable tolling not only in the context of immigration cases but throughout our court system extraordinary so now when you're talking about out the main statute of limitations not the self certification process i do however if the board believes that it has the authority to some sume the analysis set forth in sun within the context of a certification analysis then of course it would have to apply the standard that this court set forth unique or extraordinary circumstances mr mr adipose certainly in unique in extraordinary circumstances in the way that he was both provided misleading forms by the board of immigration appeals and then when he filed his papers that the individual that b i is assessment of what constitutes a unique or an exceptional circumstance is that the argument your honor i would not put the words unique in exceptional circumstances together that's conflating the two tests the board of immigration appeals has the authority to self certify cases in exceptional circumstances and i am not asking this court to review that between sure that the proper law was applied in that analysis separately this decision can be of that why don't i take that a face value that is considered the standard determine that there were no exceptional circumstances well your honor i think that the sun decision in or excuse me that the con decision is actually quite clear it says if the board concludes the petitioners justification for untimely filing does not present extraordinary or unique circumstances not exceptional circumstances it must provide a reasoned explanation for why this is so and i see no mention of the unique or extraordinary circumstances test until after it's conducted certification analysis that the board was given as i believe advocates is going to address shortly that the certification authority for the purpose of taking important cases on to itself that's not a substitute for when a to judge decisions must be filed within thirty days now as an initial matter mr adipose argued that this deadline should be equitably told before the board of immigration appeals but in its decision importantly the board stated that it need not address this argument because the board has a duty to consider arguments before it and did not do so in this case at a minimum this court should remain and the case to address the equitable tolling argument why why should we presume th board's practice of treating this regulation the thirty day deadline is mandatory in jurisdictional which has been in place for years is the answer that's why they didn't have to say anything more about it ok so the board concocted this this  idea that the appeal deadline cannot be extended in its present decision in matter of lee a dive in two thousand and six and in that decision the board said hey we see that there is a statute that provides for thirty days to file an appeal in asylum cases and we're looking at the language of the regulation and we're also going to look at the supreme court decision in lock which is from one thousand nine hundred five and it said we're going to find that we can extend this deadline there were it was there ever any congressional rights exactly so very interesting really in that decision first of all i would argue that that decision conflicts with this court's decisions and sun in co which necessarily recognize that the appeal deadline is a claim processing role because you can't have an exception to a rule if it's in fact jurisdictional let me just ask again so was there any congressional expression back regard to thirty  statute congress said yeah we think it should be thirty days with the availability of ninety days upon a showing of good cause the agency did nothing in one thousand nine hundred five it bumped the appeal deadline from ten days to fifteen days and then comes ira ira in one thousand nine hundred six and congress did two significant things at that point it inactive the thirty day deadline for appeals for filing an appeal of an asylum decision and it also included a provision that u s c twelve twenty nine a c five which said that immigration judges are obligated to inform a non citizen of the right to appeal ok and then in  predates the supreme court's decision in henderson and union pacific and in holland all of which try to course correct the confusion between cape claim processing rules and jurisdictional rules and i write still that congress never said that thirty days congress if an asylum case is a dead for just for everybody else the provision at twelve twenty nine eighty five governs what congress is intent was there and is there any reason if we were to accept your premise that equitable stoppel and allowing some form of equitable stoppel should be part of the statue of limitations on filing appeals is there any reason to think that the defines the test for certification as exceptional circumstances it said it could be one of two things extraordinary circumstances or rare events and it's totally up to the board to decide what those things constitute certification is not an by this court longstanding precedent on what constitutes extraordinary circumstances and due diligence and importantly individuals are permitted you just saw a review of whether or not they met that test do you have a view on the question whether an agency can establish its own jurisdictional limits absolutely i mean i have a view but i also think most importantly the supreme court has a very strong view and which which is set forth in union judge sort of my or indicated as well that congress doesn't intend that the power to establish jurisdictional bars resides with congress and congress alone and you see this court applying that type of logic in its decision in luna as well and here it's very clear that congress not intend this regulation to be jurisdictional if i may ask further questions nonetheless congress has legislative congress has legislated numerous times since the late forty's when the agency began to apply this kind of strict rule in it happen opportunity didn't it to change what the agency was doing if it was unhappy that the agency was treating by congress or actually that's a huge issue today coming out since two thousand and six so that's where the government says it's had the agencies had this practice right so i went direct to the court to the supreme court's decision and man speaker versus demarest in which the court held that despite longstanding administrative interpretations there is no deference to an agency's construction where that construction conflicts with the statute and we believe that constructing at this  anything but a claim processing role with conflicts not just with the statue but also with supreme court precedent in holland henderson and union pacific i think you know we'll hear from the government good morning may it please the court i'm brett on behalf of the attorney general this court should dismiss the petition for review for lack of jurisdiction because this court has squarely held that the board's decision not to hear untimely appeal specifically held that the board's decision not to certify an untimely appeal is committed to its discretion by law because there are no standards which govern the board's exercise of discretion could you address the equitable stoppel argument  we held in the of war ski in two thousand that the legislation enacted and regarding regulations which the congress directed the attorney general to an act regulations issue regulations with respect to a motion to reopen motion to reconsider that that was subject to equitable tolling the regulations there and setting a time line in a number deadline were subject to exceptions and part two of that same part of the statute at five forty five d addresses timing for administrative appeals and i wonder if you could tell me what's different about the analysis that then judge so why why should it be any different yes your honor and the motion to reopen context congress directed that the agency set a time limit for that and also in the motion to reopen context the particular time deadline as to either motions to reopen or time for filing administrators peals just directs the attorney general to issue relevant regulations isn't that correct correct your honor but it does also provide for motion to reopen before the board and in there provide certain exceptions for the for untimely motions to reopen such as changed or extraordinary circumstances and the country of nationalit looking at the statute i don't see that language in the statute i don't have the i don't have a specific motion to reopen the statute memorize all i read is the attorney general shall issue regulations with regard to the period of time which motions to reopen and to reconsider may be offered in deportation proceedings which regulations include a limitation on the number may be filed in a maximum time period that's it doesn't mention exceptions and yet we held that exceptions they needed to be read into that and need to be permitted by the attorney general because of a general presumption in favor of equitable tolling statutes of limitations correct your honor and i do know but at least under the regulations that the motion to reopen of deadline is subject to exception but again i'm looking for expressions of intent by congress i'm not looking to the regulations i want to know when congress set a jurisdictional limit on the agency's consideration of administrative appeals did not do so instead the deadline on administrative appeals is set by regulation and that regulation provides only that the board may certify an untimely appeal to itself and which feeling that there are no standards governing that i know but that was looking at the certification the self certification process it wasn't answering the question about whether one should construe the statute intended right and what can you point me to there is no express congressional intent in the terms of the congress has not legislated the deadline for administrative appeals and void correct your honor because there are no standards which govern the board's exercise of discretion which is what congress must have intended because it drew the governing law such that there are no standards which is the necessary implication of this court estrada that is committed to the board's discretion by law that are we to accept the board's view or the attorney general's view of the board's jurisdiction to congress typically to establish jurisdiction yes your honor this court is required to accept the board's understanding of its own authority and this board the court is also required to defer to with the board's interpretation own interpretation of its regulations distinction between a jurisdictional role and a claims processing role given that the board has consistently held for at least seventy years that it has no authority to extend that deadline so without the authority to extend the congress to extend the deadline and so instead of acting outside of its own understanding of the scope of its authority and has consistently interpreted the regulations as providing an alternative framework for considering  to my my initial question which is in looking at what congress said we said that that the proper reading of the statute five forty five from one nine to allow equitable stop on deadlines with regard to motions to reopen in the same statute very short statute congress said that the attorney general should proceed five times for filing that ministry of appeals and the language is very similar neither speaks to exceptions why shouldn't the analysis control here with respect to administrative appeals well as an initial matter they board itself has never stated whether the deadline for motions to reopen a subject tolling but this court has your honor and so the board hasn't fully explained why the motion to reopen context does permit of exceptions but it has consistently with that at all so they couldn't have given a reason explanation because they didn't deal with it at all they did say that they did not have to address the jurisdictional nature of the deadline because they declined to certify and that's because the board has consistently held that it doesn't have the authority to extend the deadline so discussing needlessly labeling something as jurisdictional or claims processing could not have altered the outcome of this is a harmless error argument it is true that they didn't miss troubling to me that there was a argument squarely presented and they only dealt with the first argument not the equitable tolling argument and i gather what you're saying you is that because of what they've done in the past we should just presume that they did the same thing subsequence you here yes  said nothing about it that's true they declined to or they did not address the issue because they found that certification was not warranted so they went in and you can tell this year that in every  case prior to this one they took the same position with respect to requests for workable taling no your honor i can't make that claim because i don't see all of the decisions that's true then why don't we just back this court could remain and for a more explicit statement but it should not do so because the board has consistently said that we have told me this represents honor are you aware of any anywhere in the country any contradictory opinion i'm not aware of any of those opinions and i think that makes sense because the board proceeds in my experience under it certification framework and that framework is not governed by any standards and so whether to certify an untimely appeal or not the board has regulation nor any other regulation or statute provides any standard for the board's exercise of discretion which means that it is committed to the agency's discretion by law under the supreme court's decision in hec honor and that's pursuant to the explicit terms of the administrative procedure act which provides that judicial review is not available in decisions agency actions that are committed to the board's discretion or to the agency's discretion by law and then the supreme court interpreted that phrase in heckler every chaney and said that where there are no standards to govern the agencies exercise of discretion judicial review is unavailable because there are no standards to assess the board's determination and accordingly if the court has no further questions then the government would respectfully request that the petition for review be dismissed for lack of jurisdiction with these same issue in the same way there's no record of any deviation and in any event there are no explicit standards that were set by congress when i say we know that's just the argument so what so ok i first person i can contest the premise that i believe government set forth and i'm surprised that the government would say they don't know of any decisions with a contrary finding as to the extension of deadlines am a kiss and petition to both provided them in their brief a long sight of cases in which the board has accepted late filed appeals in less compelling circumstances pardon me they often mention their certification authority but the board does  not they often say equitable exceptions warranting remain and there are multiple board of immigration cases almost what's what's the board of immigration appeals statement that the deadline is tol'able is because they are trying to avoid addressing tolling just as they did in this case by saying certification is sufficient and it is it is not i mean court said in the luna decision and i would point to page one hundred of the lunar decision that the board cannot contract its own jurisdiction it cannot remove a petitioners right to equitable relief simply by saying that the certification decision board actually affirmatively said they're using the wrong standard they said we were using a lizotte a standard to analyze what happened to this petitioner and that not right sun is the right standard and i believe it's important to clarify that that standard sits outside the certification authority if the board could simply deny certification to any motion for an extension of time before it then the issues raised to this court in sa sun and con and the remained in that case would have moot what would have been the point of remanding the case to the board of immigration appeals in sun and con if the board had the unfettered and unreviewable authority to deny a late filed appeal that that can't be right there have to be equitable exceptions and i believe am identify equitable exceptions that must be available extraordinary circumstances and diligence are one of those exceptions but they're not the only one thank you can thank you for certification as extraordinary circumstances but the standards that govern what constitutes that are entirely discretionary right but for tolling the standard is exceptional circumstances and due diligence and that is governed by what this court and other courts have said with respect to what constitutes nextstep circumstance and what constitutes due diligence so there are standards that control and that this court can review in an equitable tolling analysis i just want to back to two judge carney's questions with respect to the decision ninety five forty five that is the same provision that we are saying provided where congress indicated to the agency you need to provide a deadline and it wasn't just this court that recognized that the motion of a deadline was subject to tolling it's all the circuits that have said that because the board refused to issue a decision on this very point and that is exactly what is happening here with respect to the appeal regulation and we would see this case as an opportunity for this court to decide t that is not obvious that the government would like this court to think that congress has to explicitly say hey this is a deadline the subject tolling but that is not what the supreme court says the test is if you look to holland if you look to henderson silence is ok rebuttal person in favor of tolling in these instances and particularly if you look at auburn regional where just the sort of my are says and you should particularly apply equity in cases where there are so vulnerable population or an unsophisticated litigate and that's what we have in this immigration context we have people who are locked up who are trying to file appeals pro se and who get a lesser form of relief and review because the board has taken it upon itself to apply the certification regulation and it has ignored time and time again i can tell you as micus the board will ignore the argument that the deadline should be tolling they have done it before they have done it in this case but this case presents an opportunity and defrauded and not just that but right after the deadline he started filing things pro se and the board misconstrued those things and decided not to recognize that this is a pro se individual who is trying to preserve  diligence means that you have to have pursued your rights that you don't sit on your rights that you don't sort of have an awareness and do nothing about it mr adipose unawareness and he did everything he possibly could from detention to pursue those rights the first letter and it was rejected was very close to the line a day or so after it was absolutely was two days after the deadline which was august eighth i believe and lastly i would say that another reason that this court can decide this issue and sort of sort of make the board recognize that this concept exists and supreme court case law is if you look at footnote one of the luna decision you don't need to sort of standards and therefore it's committed i'm just asking the question because it's a little unusual but therefore it's committed to the beyond his discretion it's ironically the lack of standards that i'm not arguing that because they put everything in the self sort of creation basket yeah but if there was a lack of standards what do we draw from the lack of standards in these b i a cases where there's an equitable or possible equitable tolling claim what we draw with respect to our jurisdiction to review its decisions well we understand that when the case comes before the score on the denial of the certification the court's review is cabin to   say that if the board were put to the standard of accountability by creek created by requiring a reasoned explanation of what is exceptional circumstances in the equitable stop context which it is not put to in the discretionary view self certification process that you might have developed standards were in line with what courts have done in equitable stoppel and regular statutes of limitations and therefore relying on a you know an overnight air carrier to deliver according to its now schedule and doesn't you know make that schedule or you know blizzards are unable to get to a library whatever then you would have a more  reasoned kind of history of what constitutes exceptional circumstances but that rigor has been missing because of the absence of review in the certification process and so i would say to that that the board doesn't need to do that with respect to a discretionary regulation when there's a whole body of case law that already defines what in exceptional circumstances is in the telling context and the second thing i would point out to you is if you're a man to do that i don't know what the court's going to do but what the board usually does is than say well we think that this merits certification so we don't have to decide this issue and and now after mr adipose has sat in jail for three years he's going to get his appeal adjudicated as it was he would say that court decisions about circumstances meriting equitable tolling in statutes of limitations of various stripes would inform the board's exercise of recent decision making mean the concept of equitable tolling as just sort of my are set and i have or ski immigration provides no special status when it comes to equitable tolling there's nothing special about how you apply equitable tolling just because it's an immigration case this isn't a filing deadline  henderson justice the supreme court unanimously said that filing deadlines are quite essential claim processing rules and subject to equitable exceptions equitable tolling applied in henderson it applied in holland and for the same very same reasons if that that's happened before like in this court's decision in sun i believe it was where the court said hey you didn't consider these actions we're going to send it back down to consider the echo exceptions guess what the board did on remand and appl up who has a conviction that is not an aggravated felony and what we need to happen for mr ad a pro is for the board to be able to look at the merits of the case send it back down to the immigration judge so he can apply for the relief that he should have been able to apply for how long has he been detained th years that's a long time two and a half since the board failed to construe its press a filings as as a notice of appeal thank you thank you very lively argument