Trina Realmuto

When Trina Realmuto represented Andrea Joy James in the First Circuit, the appeal record contained no transcript of the immigration judge’s decision and no merits brief from James. The Board of Immigration Appeals had dismissed her filing before either could be produced. Realmuto’s team asked the court to return the case to the point where the agency had stopped: James’s express request for equitable tolling.

James had lived in the United States since 1989 and had a United States-citizen daughter. After completing a criminal sentence, she entered immigration detention in October 2019 at the Bristol County House of Correction in Massachusetts. On February 19, 2020, she represented herself at a hearing where an immigration judge denied asylum, withholding of removal and protection under the Convention Against Torture, and ordered her removed to Jamaica.

The written order gave March 18 as the appeal deadline. The thirty-day regulation made March 20 the correct date. Checked boxes on the form also appeared to indicate that James had waived appeal. The government did not rely on waiver, however, and the Board did not dismiss on that ground. The First Circuit left the question undecided.

A Filing from Detention

Massachusetts declared a state of emergency on March 10, ten days before the legal deadline. James remained detained as the coronavirus outbreak disrupted life inside the facility. On April 1, twelve days after the deadline, she signed her notice of appeal and placed it in the internal mail. The Board received the package on April 6, seventeen days late. Under the receipt rule, depositing it with detention staff did not itself make the filing timely; the filer bore the risk of transit delay.

James enclosed a supplement, a motion to accept the late appeal and a fee-waiver request. She explained that she had been unable to secure counsel within thirty days and was experiencing serious complications from diabetes and high blood pressure. Her notice identified challenges to the denial of withholding and Convention Against Torture protection. She also checked the box indicating that she would submit a fuller brief after receiving a briefing schedule.

The supplement expressly invoked equitable tolling. It argued that the thirty-day limit was a claim-processing rule and required the Board to consider whether the deadline should be tolled. The filing put the legal claim and James’s circumstances before the agency, with the promised brief still to come.

What the Board Decided

On June 19, 2020, the Board summarily dismissed the appeal. It treated the motion as a request to accept the case through self-certification, an authority it could exercise in exceptional circumstances. After noting James’s detention, difficulty retaining counsel and health complications, it declined to certify the case.

That approach followed Matter of Liadov, the Board’s 2006 precedent treating the appeal deadline as admitting no ordinary extension and certification as a narrow safety valve. The dismissal contained no ruling on equitable tolling: no determination of diligence, no assessment of extraordinary circumstances under that doctrine. It also ended the attempted appeal without a transcript, briefing schedule or review of the immigration judge’s protection rulings.

Realmuto appeared for James with Kristin Macleod-Ball, Tiffany Lieu and Kira Gagarin on the petitioner’s brief. Their petition sought a ruling on the claim the Board had left unanswered. It also advanced an alternative argument concerning the agency’s treatment of comparable requests for certification, but the court resolved the case on the primary tolling ground.

Reading the Request James Made

The government first argued that the late filing meant James had failed to exhaust her administrative remedies, leaving the court without jurisdiction to review her claims. Judge William Kayatta’s October 25, 2021 opinion identified the assumption inside that argument: if equitable tolling applied, the appeal could count as timely. The court had jurisdiction to review the Board’s failure to address that question.

The government separately described the tolling request as indirect and vague, contained in a single sentence of a preprinted supplement. Kayatta read the language James had submitted and called her request “crystal clear.” She had named “equitable tolling,” identified the deadline as a claim-processing rule and asked for an individualized decision. Including those arguments in a supplement preserved them. Her lack of counsel also called for a liberal reading of the filing.

The government did not contest that the thirty-day limit could be equitably tolled. The panel therefore had no need to resolve that broader question, though it noted that four other circuits had held the deadline nonjurisdictional. The disputed issue was whether the Board had already answered James by declining certification.

Realmuto’s team had to keep the two standards separate. Self-certification involved largely unfettered agency discretion. Equitable tolling entitled a litigant to relief upon proof of diligent pursuit of her rights and an extraordinary circumstance that prevented timely filing. A court could review a denial of tolling for abuse of discretion. The Board’s choice not to certify a case could not stand in for an application of that legal standard.

The government also urged that James had not made a sufficient case for tolling. At oral argument, it stressed that her motion had not expressly mentioned COVID, then conceded that the Board must have known about the pandemic. The court declined to predict how the agency would have ruled. James’s health complications, detention and efforts to appeal belonged in that first assessment, particularly because summary dismissal had prevented her from developing the brief she had requested.

The Decision Sent Back

The First Circuit vacated the dismissal and remanded. The Board had to decide whether James’s circumstances warranted tolling the deadline, evaluating diligence, the obstacle to timely filing and the evidence explaining the delay. The court left the protection claims within the immigration adjudication process.

Realmuto and her co-counsel had secured an enforceable requirement to consider James’s legal claim. The result depended on the request already in the filing: the agency had received an opportunity to decide it, and its silence could not establish that James had failed to raise it.

A Procedure for Late Appeals

On May 5, 2023, the Board decided Matter of Morales-Morales. It overruled Liadov and expressly held that the appeal deadline was a claim-processing rule, giving it authority to treat some late appeals as timely. It adopted the two requirements of diligence and an extraordinary circumstance that had figured in the circuit decisions.

The respondents in Morales-Morales had mailed their notice by regular mail two days before it was due. They supplied an incomplete account of their efforts to appeal and little explanation for the mailing choice. The Board found neither required element established and denied reconsideration. Even a one-day delay required proof; the length of the delay alone did not determine whether tolling applied.

EOIR’s appeal manual now directs a late filer to submit the notice with a separately titled “MOTION TO ACCEPT LATE APPEAL,” supported by affidavits, declarations and other evidence establishing both elements. The procedure gives the Board a motion to decide and the filer a defined way to explain what prevented timely receipt.

The Later Deadline Dispute

In February 2026, the Justice Department issued an interim final rule scheduled to take effect on March 9. It would have reduced the ordinary notice period to ten calendar days while retaining thirty days where the judge adjudicated asylum without denying it under specified threshold bars; both periods depended on receipt. The Department relied on electronic filing, reduced mail-delay concerns and faster adjudication, while acknowledging difficulties for people seeking counsel after an adverse decision.

On March 8, in the separate case Amica Center for Immigrant Rights v. EOIR, Judge Randolph Moss vacated the ten-day provision, along with new summary-dismissal and issue-waiver requirements, for failure to follow required rulemaking procedures. The eCFR text displayed through September 10 still contained the ten- and thirty-day categories. EOIR’s public manual, checked on September 13, continued to state a general thirty-day receipt deadline, including for detained filers. The court’s order is essential to understanding the difference between those texts.

The briefing change had a different history. Moss’s order left it in place. For appeals from immigration-judge decisions issued on or after March 9, the manual gives both sides the same twenty calendar days to file briefs and permits a reply only when the Board invites or orders one. A notice deadline determines whether the appeal begins; a briefing schedule governs the argument that follows.

Building the Next Appellate Team

Realmuto’s work at the National Immigration Litigation Alliance combines representation with teaching lawyers to litigate in federal court. Before becoming its executive director and co-founder, she directed litigation at the American Immigration Council and the National Immigration Project of the National Lawyers Guild. She began at Van Der Hout in San Francisco, handling federal litigation and deportation defense, and also worked in London and Switzerland representing visa applicants at United States embassies and consulates.

NILA generally serves as lead counsel in its co-counseling program, with an agreement assigning responsibilities and deadlines. Lawyers seeking its involvement are asked to send Realmuto the legal issues and any impending deportation or filing date. The work spans petitions for review, detention challenges, damages actions and government-transparency litigation.

In August 2025, NILA and Cardozo School of Law’s immigration clinic announced the National Immigration Habeas Institute to train lawyers whose practices had largely been confined to immigration court. Its intensive federal habeas training paired free participation with a commitment to accept pro bono referrals. Realmuto’s stated aim was to equip removal-defense lawyers for the demands of federal proceedings.

Rekha Nair of the Phoenix Legal Action Network worked with Realmuto to develop and refine the arguments in a petition for review. In Nair’s description of their collaboration, Realmuto “co-wrote and thoroughly edited multiple drafts of briefing, giving me a level of feedback I had not received since law school.”