NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0119n.06

No. 21-3757

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REINA PEREZ-AGUILAR,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

Before: WHITE, THAPAR, and LARSEN, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Reina Perez-Aguilar, a native citizen of 

Guatemala, seeks review of a Board of Immigration Appeals order denying her application for 

asylum, withholding of removal, and protection under the Convention Against Torture. However, 

because Perez-Aguilar did not file her petition for review within the statutorily mandated 30-day 

period, we must dismiss it. 

I.

Perez-Aguilar entered the United States without immigration documentation in January 

2016. She sought asylum, withholding of removal, and protection under the Convention Against 

Torture (CAT). At Perez-Aguilar’s removal hearing in March 2019, the Immigration Judge (IJ) 

adopted Perez-Aguilar’s testimony “as the Court’s factual findings.” AR 37. 
No. 21-3757, Perez-Aguilar v. Garland

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A.

Perez-Aguilar, a single mother, fled her hometown of Tierra Blanca, Guatemala, where she 

and her two-year-old daughter lived with her parents, because she feared a man named Abner 

Mendez, who was a member and local leader of the 18 gang.

Perez-Aguilar first met Mendez in August 2014. As Perez-Aguilar was heading home from 

her job at a store within walking distance of her home, Mendez approached her and told her to give 

him her money, or else he would kill her. Perez-Aguilar told him that she did not have any money, 

and Mendez left. 

In December 2014, Mendez again approached Perez-Aguilar and asked her for money. 

This time, when she told him she did not have any money, he pushed her. Mendez approached her 

again in January 2015 and told her that if she “didn’t give him any money he was going to kill”

her, and told her that she was “supposed . . . to be working for him.” Id. at 127. Perez-Aguilar did 

not see Mendez again until October 2015, when, on the way home from work, she encountered his 

girlfriend Alba, who demanded money. When Perez-Aguilar told Alba that she did not want to 

give away her money, Alba threw her on the ground and began to beat her. Alba then pulled out 

a knife and attempted to stab Perez-Aguilar but dropped the knife on the ground during the ensuing 

struggle. Alba started biting Perez-Aguilar’s fingers and called for help. Mendez responded and 

started beating Perez-Aguilar in the head. Perez-Aguilar lost consciousness, and when she awoke 

her mouth and nose were swollen. She had been beaten in the mouth, nose, stomach, and legs and 

Mendez had taken her money. 

Perez-Aguilar went back to her parents’ house, where her father—who knew “something 

about medicine”—treated her. Id. at 135. She did not go to the hospital. It took Perez-Aguilar 

about eight to ten days to recover from her injuries, and in that time Mendez called her around five 
No. 21-3757, Perez-Aguilar v. Garland

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times per day. Perez-Aguilar refused to answer her phone, and Mendez sent her text messages 

telling her to “go out and work because he needed the money.” Id. at 137. Even after PerezAguilar changed her number, Mendez was still able to contact her by phone. Perez-Aguilar did 

not report any of this to the Guatemalan police. The nearest police station was approximately six 

hours away, and Perez-Aguilar did not expect the local authority—the “auxiliaries”—to offer 

security, because even though “[m]any people go to them . . . [a]ll they do is . . . make sure the 

highway is fine.” It would have taken money to get the police to come out to Perez-Aguilar’s 

village, so she did not call them. Perez-Aguilar did not consider relocating to a part of Guatemala 

where the police were stationed closer than six hours away. 

After Perez-Aguilar recovered from her injuries, she travelled to Mexico, where she stayed 

for two months, and then left for the United States. While Perez-Aguilar was in Mexico, Mendez 

sent her a message telling her to return to Tierra Blanca and join the 18 gang. As of the date of 

the removal hearing, Mendez had asked Perez-Aguilar’s family about her at least three times since 

she had relocated to the United States, specifically asking if she “send[s] money” to her family in 

Guatemala and demanding her location and phone number. At the time of the hearing, PerezAguilar believed that Mendez was in the United States and looking for her because her cousins 

and mother told her so. 

Perez-Aguilar further testified that she has no family outside of her home village in 

Guatemala; Mendez was “always there with a weapon threatening people” and “always . . . taking 

money from people”; and if she were to return to Guatemala, Mendez’s friends would tell him 

where she was. To Perez-Aguilar’s knowledge, Mendez has attacked three people, in addition to 

her, for money. 
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B.

Perez-Aguilar petitioned for asylum, withholding of removal, and protection under the 

CAT, arguing that she fell into two particular social groups that were entitled to protection: 

“[y]oung[,] working[,] single-parent Guatemalan mothers who are victims of gang harassment and 

physical violence,” and “[y]oung[,] working[,] single-parent Guatemalan women who refuse to be 

extorted by gang members and are subsequently victims of harassment and physical violence.” Id.

at 37–38. The IJ denied Perez-Aguilar’s petition. Although the IJ concluded that Perez-Aguilar

had experienced persecution and that her fear of future persecution was both objectively and 

subjectively reasonable, he concluded that her asylum petition failed because her asserted social 

groups are not cognizable under asylum law, and even if they were, Perez-Aguilar failed to prove

that she was targeted because of her membership in the asserted social groups, i.e., that there was 

a “nexus” between the harm done to her and her protected group. The IJ also found that she failed 

to prove that the Guatemalan government was unable or unwilling to help her or that she could not 

relocate to another part of Guatemala. Id. at 37–39. The IJ also concluded that, as to the claim for 

protection under the CAT, “there [was] no evidence at all that it is more likely than not that this 

respondent would be tortured by government actors in Guatemala or that the Government would 

acquiesce in her torture or be willfully blind to the actions of” Mendez. Id. at 39. 

Perez-Aguilar appealed to the BIA, which affirmed the IJ’s order of removal. She then 

brought this petition for review.

II.

The BIA affirmed the IJ’s final removal order on March 29, 2021. The Immigration and 

Nationality Act requires that a petition for review to the court of appeals be filed “not later than 30 

days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). Perez-Aguilar’s deadline 
No. 21-3757, Perez-Aguilar v. Garland

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for appealing the BIA’s determination was therefore April 28, 2021, id., but, as the government 

raises in its briefing, Perez-Aguilar did not file her petition until May 21, 2021. The petition is 

therefore untimely. 

In the past, we have referred to the thirty-day deadline to seek review of a BIA 

determination as “both mandatory and jurisdictional.” Prekaj v. I.N.S., 384 F.3d 265, 267–68 (6th 

Cir. 2004) (quoting Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996)). More recently, 

however, the Supreme Court issued an opinion clarifying “the distinction . . . between 

jurisdictional appeal filing deadlines and mandatory claim-processing rules.” Hamer v. 

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017). As of this date, no court of appeals 

has opined definitively on whether § 1252(b)(1) is a jurisdictional or mandatory claim-processing 

rule, but our court and the Seventh Circuit have noted, in unpublished cases, that the rule is “[a]t 

the very least . . . a mandatory claims-processing rule” that must be enforced when invoked. 

Hakeem v. Barr, 2020 U.S. App. LEXIS 25860, at *2 (6th Cir. Aug. 13, 2020); see also PascualEsteban v. Garland, 2021 U.S. App. LEXIS 28977, at *2 (6th Cir. Sep. 23, 2021) (holding the 

same); Rafael-Diego v. Garland, 2021 U.S. App. LEXIS 18545, at *2 (6th Cir. June 21, 2021) 

(same); Olatunji v. Sessions, 723 F. App’x 373, 373 (7th Cir. 2018) (same). Because the

government has properly invoked the rule here, we need not determine today whether § 1252(b)(1) 

is jurisdictional under Hamer.

Perez-Aguilar argues that due to “US Postal Service delay caused by COVID,” she did not 

receive the BIA decision until April 24, 2021, and that her May 21, 2021 filing date was within 

“30 days after receiving the BIA decision.” Petitioner’s Br. at 7. Perez-Aguilar also argues that 

the 30-day rule is “ambiguous” and that the delay was “well taken” by the Fifth Circuit, with which 

she initially erroneously filed her petition and which subsequently transferred the case to our court. 
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See id.; Reply Br. at 4. Finally, Perez-Aguilar argues that we have discretion, under Federal Rules 

of Appellate Procedure 4 and 26, to extend her filing deadline to 60 days because “one of the 

parties is a United States agency.”

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 Reply Br. at 5–6. 

These arguments must fail. The § 1252(b)(1) deadline is clear and unambiguous, requiring 

that the petition be filed “not later than 30 days after the date of the final order of removal.” 

Additionally, the Fifth Circuit had no reason to address the timeliness issue when it transferred 

Perez-Aguilar’s case to our court. And the federal rules do not grant us discretion to adjust this 

statutory deadline because “[w]hen ‘properly invoked,’ mandatory claim-processing rules ‘must 

be enforced.’” United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020) (quoting Hamer, 138 S.Ct. 

at 17). 

Finally, we are sympathetic to Perez-Aguilar’s claims of delay due to the COVID-19

pandemic. However, when she received the BIA decision, she still had four days before the 

deadline expired. In addition to filing her petition before this panel within that time, she could 

have moved for reconsideration before the BIA within those same thirty days after the BIA’s 

decision, or could have moved to reopen the removal proceedings within ninety days. 8 U.S.C. 

§ 1229a(c)(6)–(7); see Gor v. Holder, 607 F.3d 180, 184 (6th Cir. 2010). She also could have 

requested that the BIA exercise its discretion to reissue the final decision with a new date, which 

1 The rules cited by Perez-Aguilar, by their terms, do not apply to petitions for review of BIA opinions. 

Federal Rule of Appellate Procedure 26(b) provides that, “[f]or good cause, the court may extend the time 

prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time 

expires. But the court may not extend the time to file: (1) a notice of appeal (except as authorized in Rule 

4) or a petition for permission to appeal.” Federal Rule of Appellate Procedure 4(a)(1)(B) provides that 

“[t]he notice of appeal may be filed by any party within 60 days after entry of the judgment or order 

appealed from if one of the parties is: (i) the United States; [or] (ii) a United States agency.” However, 

Federal Rule of Appellate Procedure 20 explains that Rule 4 does not “apply to the review or enforcement 

of an agency order.” The other discretionary extensions in Rule 4 apply to district courts, not our court or 

agencies. Fed. R. App. P. 4(a)(5)–(6).
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the BIA may do at any time as a “measure of grace.” Martinez-Espino v. Gonzales, 205 F. App’x 

421, 425 (6th Cir. 2006) (quoting Firmansjah v. Ashcroft, 347 F.3d 625, 627 (7th Cir. 2003)). In 

any event, we cannot allow this late petition, or extend the time for filing it.2 Prekaj, 384 F.3d at 

267–68.

Accordingly, we dismiss the petition for review. 

2 Neither the Supreme Court nor our court has resolved the question whether, in light of Hamer, “mandatory 

claim-processing rules may [ever] be subject to equitable exceptions.” Fort Bend County, Texas v. Davis, 

139 S. Ct. 1843, 1849 n.5 (2019) (holding that Title VII’s charge-filing rule—which requires filing a charge 

with the Equal Employment Opportunity Commission as a prerequisite to suit—is a mandatory claimprocessing rule and not jurisdictional); Alam, 960 F.3d at 835 (declining to consider whether equitable 

exceptions may apply generally to claim-processing rules but noting that “the norm is to follow a mandatory 

rule unless [applicable] statutory exceptions apply”). Because Perez-Aguilar could have acted within the 

statutory filing window, we do not believe an equitable exception would be appropriate in this case and 

decline to take up the issue now.