Baro v. Blanche: The BIA’s 30-Day Appeal Deadline Is Nonjurisdictional and Equitable-Tolling Decisions Receive Deferential Review

I. Introduction

In Sona Baro v. Todd W. Blanche (6th Cir. June 16, 2026), the Sixth Circuit reviewed the Board of Immigration Appeals’ dismissal of Sona Baro’s administrative appeal as untimely under 8 C.F.R. § 1003.38(b), which required a notice of appeal to be filed within 30 days of an immigration judge’s decision. Baro—who sought asylum, withholding of removal, and Convention Against Torture relief—filed her appeal more than five months late and asked the Board to equitably toll the 30-day deadline based primarily on a severe sickle-cell crisis and related delays in retaining new counsel.

The case presented two system-level questions alongside the application of equitable tolling to Baro’s facts: (1) whether the 30-day BIA appeal deadline is “jurisdictional” (and thus not subject to equitable exceptions), and (2) what standard of review courts should use when reviewing the Board’s ultimate equitable-tolling determinations (diligence and extraordinary circumstances).

II. Summary of the Opinion

The Sixth Circuit denied Baro’s petition for review. It held:

  • The 30-day deadline in 8 C.F.R. § 1003.38(b) is not jurisdictional; it is a mandatory claim-processing rule that can be subject to equitable tolling.
  • Courts should review the Board’s “ultimate” equitable-tolling conclusions deferentially because applying diligence and extraordinary-circumstance standards is fact-intensive.
  • Even assuming Baro experienced an extraordinary circumstance for some period, the Board reasonably found she failed to show the necessary due diligence across the full period she sought to toll—especially given limited objective medical evidence for months-long incapacity and substantial delay after she began feeling better and after retaining new counsel.

III. Analysis

A. Precedents Cited

1. The “nonjurisdictional” holding and the Supreme Court’s clear-statement rule

The Sixth Circuit grounded its “nonjurisdictional” holding in the Supreme Court’s modern clear-statement approach to jurisdictional characterization:

  • Santos-Zacaria v. Garland: The Court presumptively treats procedural prerequisites as claim-processing rules absent a clear jurisdictional statement. The Sixth Circuit relied on Santos-Zacaria’s emphasis on textual clarity and its use of comparisons to “related provisions” containing unmistakable jurisdictional language.
  • Riley v. Bondi: The Court treated the statutory 30-day petition-for-review deadline as nonjurisdictional. The Sixth Circuit found it would be incongruous to treat the analogous agency-appeal deadline differently, especially where the regulation speaks to what litigants must do and “provides no directives” to the adjudicator.
  • Henderson v. Shinseki: The Court deemed similarly phrased filing language nonjurisdictional; the Sixth Circuit cited Henderson to show the regulatory text resembles other nonjurisdictional deadlines.

The court also noted that 8 U.S.C. § 1158(d)(5)(A)(iv) requires procedures providing that an administrative appeal be filed within 30 days in asylum-related settings, but—consistent with Riley v. Bondi—the statute lacks jurisdictional language and sits alongside other asylum provisions where Congress did use clearer jurisdictional phrasing, reinforcing the nonjurisdictional reading by contrast.

2. Equitable tolling framework: adopting Holland’s two-part test

The Board’s equitable-tolling approach was traced to:

  • Matter of Morales-Morales: The Board’s post-2023 position that the 30-day deadline is a claim-processing rule and that equitable tolling may apply in “certain situations,” using Holland v. Florida’s two-part test.
  • Holland v. Florida: The two elements—(i) diligent pursuit and (ii) an extraordinary circumstance preventing timely filing—became the governing standard the Sixth Circuit assumed and applied.
  • Pace v. DiGuglielmo: Supported the proposition that lack of diligence alone defeats equitable tolling, allowing the court to resolve the case on diligence without deciding extraordinary circumstances.

The panel contrasted its older motion-to-reopen equitable-tolling analysis in Barry v. Mukasey (noting Barry had discussed a five-factor test) but proceeded under Holland given the parties’ agreement and the Board’s current approach.

3. Standard of review for equitable tolling: deferential review of fact-intensive mixed questions

The court’s “deferential review” holding drew heavily from Supreme Court instruction on mixed questions:

  • Guerrero-Lasprilla v. Barr: Identified equitable tolling as a “mixed question” (application of legal standards to facts) and clarified that mixed questions can be “questions of law” for jurisdictional safe-harbor purposes—though the Sixth Circuit assumed jurisdiction without definitively pinning the source.
  • Wilkinson v. Garland and U. S. Bank N. A. v. Vill. at Lakeridge, LLC: Provided the “primarily legal or factual work” test and supported deference where resolution requires immersing in facts.
  • Monasky v. Taglieri: Reinforced deference where the inquiry is fact-bound.
  • Hernandez v. Garland: Reflected the Sixth Circuit’s own application of the mixed-question framework.
  • Sarkisov v. Bondi: Cited as consistent with deferential review of similar determinations.

The court analogized to its established practice in the motion-to-reopen context—reviewing equitable-tolling determinations deferentially—citing Barry v. Mukasey and multiple Sixth Circuit examples: Perez-Rodriguez v. Bondi, Reyes-Rodriguez v. Garland, Slyusar v. Barr, Kamkondo v. Holder, and Pepaj v. Holder. While the panel did not select between abuse-of-discretion or other deferential formulations, it made clear that non-deferential (de novo) review was inappropriate for these fact-intensive tolling determinations.

4. Agency “jurisdiction,” forfeiture, and the court’s sua sponte obligations

Although ultimately unnecessary to the disposition, the opinion provided a notable discussion distinguishing courts’ subject-matter jurisdiction from an agency’s statutory/regulatory authority:

  • Steel Co. v. Citizens for a Better Env't and Capron v. Van Noorden: Used to explain why courts must ensure their own jurisdiction.
  • City of Arlington v. FCC (and Plaut v. Spendthrift Farm, Inc.): Framed “agency jurisdiction” as an authority/merits question, not an Article III separation-of-powers limitation of the same kind that triggers sua sponte judicial policing.
  • The court noted authority recognizing forfeiture of agency-jurisdiction arguments, citing Campos-Luna v. Lynch, Jalbert v. SEC, Metro-N. Commuter R.R. Co. v. U.S. Dep't of Lab., 1621 Route 22 W. Operating Co. v. NLRB, and Cedar Springs Hosp., Inc. v. Occupational Health & Safety Rev. Comm'n, while distinguishing earlier Sixth Circuit language in Hernandez-Perez v. Whitaker as later clarified by Mendoza-Jovel v. Garland.

5. Diligence analysis and delay: case support

In affirming the Board’s diligence finding, the Sixth Circuit cited decisions reflecting skepticism of tolling where litigants delay after barriers lift or rely on generalized assertions:

  • Oxlaj-Perez v. Blanche: Cited for the relevance of notice/knowledge of the decision and appeal rights.
  • Hernandez-Garcia v. Att'y Gen. U.S.: Used for the principle that diligence must be shown across the entire period sought to be tolled and that generalized claims may fail to explain what prevented timely filing.
  • Wershe v. City of Detroit: Reinforced continuous diligence requirements.
  • Scorteanu v. INS: Supported the view that delays even after retaining counsel can demonstrate lack of diligence.
  • Ba v. Holder: Noted Congress’s judgment in asylum-related contexts about the speed of administrative appeals, underscoring why extended post-retention delay cut against diligence.
  • Folly v. City of Philadelphia and Griffin v. Merit Sys. Prot. Bd.: Cited for the general proposition that difficulty finding counsel typically does not justify tolling.
  • Harris v. United States: Supported the skepticism toward unsupported assertions without corroborating records.
  • Alvarez-Morales v. Bondi: Used as analogous support regarding post-counsel delay.
  • Ata v. Scutt and Mazola v. United States: Cited as examples where serious health issues can qualify as extraordinary circumstances (though the court assumed rather than decided this element for Baro).

6. Regulatory background litigation (context, not a holding)

The opinion noted the Executive Branch’s attempted 2026 changes to BIA appellate procedures and the district court ruling: Amica Ctr. for Immigrant Rts. v. Exec. Off. for Immigr. Review. The Sixth Circuit treated this as background only, because the parties agreed the older regulation governed Baro’s case.

B. Legal Reasoning

1. Why the 30-day BIA appeal deadline is not “jurisdictional”

The court applied the Supreme Court’s clear-statement rule. The regulation’s language (“shall be filed … within 30 calendar days”) was characterized as a litigant-facing instruction—typical of claim-processing rules—rather than a restriction on the Board’s adjudicatory power. The court reinforced this reading by comparison to Supreme Court cases treating similarly structured deadlines as nonjurisdictional, and by pointing to Congress’s use of explicit jurisdictional language elsewhere in the asylum statute but not in the 30-day administrative-appeal reference.

2. Why equitable-tolling determinations receive deferential review

Applying the mixed-question framework from Wilkinson v. Garland and U. S. Bank N. A. v. Vill. at Lakeridge, LLC, the court held that whether a noncitizen was diligent and whether circumstances were extraordinary are fact-intensive applications of a general legal standard. That fact-bound character warrants deference to the agency’s ultimate determination rather than de novo reweighing on review. The court also relied on its established motion-to-reopen practice of reviewing equitable tolling deferentially.

3. Application to Baro: diligence failure as the dispositive ground

The court assumed (without deciding) that Baro’s June 2024 sickle-cell crisis could qualify as extraordinary for some portion of the time but held that the Board reasonably rejected tolling because diligence was not shown across the full five-month period. Key reasoning points:

  • Baro learned of the adverse decision and her appeal rights within days, supporting the Board’s view that the timeline should be assessed against early knowledge.
  • After discharge in late June, Baro asserted months of severe pain but produced no objective medical records substantiating continuing incapacity during the key months, allowing the Board to conclude she had not explained what prevented a timely filing.
  • By September, Baro admitted she “started feeling better” and knew the deadline had been missed, yet waited for a single attorney’s availability for weeks—an explanation the Board could reasonably find insufficient.
  • Even after retaining counsel on October 23, the appeal was not filed until December 10—well beyond the 30-day benchmark that Congress has signaled as appropriate for administrative appeals in asylum contexts.

C. Impact

1. Procedural significance: nonjurisdictional classification

By holding 8 C.F.R. § 1003.38(b) nonjurisdictional, the Sixth Circuit aligns itself with every circuit to have addressed the issue (as the opinion notes, citing Attipoe v. Barr, Boch-Saban v. Garland, Liadov v. Mukasey, Irigoyen-Briones v. Holder, Huerta v. Gonzales, and also James v. Garland). Practically, this confirms that late appeals are not categorically void for lack of agency “power” and that equitable tolling remains conceptually available where the Holland criteria are met.

2. Review framework: deference will make reversals harder

The most consequential forward-looking holding may be the standard-of-review rule: equitable-tolling determinations regarding the BIA’s 30-day appeal deadline are reviewed deferentially. That deference is likely to reduce successful petitions for review that merely dispute the Board’s weighing of medical proof, timelines, and lawyer-retention delays. Petitioners will need to identify clearer legal errors (misstated standards, refusal to consider relevant evidence, irrational factfinding) rather than seek fresh appellate balancing.

3. Evidence expectations: corroboration matters

Baro illustrates that affidavits describing ongoing illness may be insufficient without corroborating medical documentation to connect the ailment to the entire period of delay. The opinion signals that “continuous diligence” is scrutinized and that delay after improvement or after counsel retention is especially damaging.

IV. Complex Concepts Simplified

  • Jurisdictional vs. claim-processing rule: A jurisdictional rule limits a tribunal’s power to act; if missed, the case must be dismissed and equitable exceptions generally cannot apply. A claim-processing rule is mandatory but can sometimes be excused (e.g., by equitable tolling) and can be forfeited if not properly invoked.
  • Equitable tolling: A doctrine that pauses a deadline when (1) the person pursued rights diligently and (2) something extraordinary prevented timely filing.
  • Mixed question of law and fact: Applying a legal standard (like “diligence”) to particular facts. Courts decide whether to review such questions closely (de novo) or with deference depending on whether the inquiry is mainly legal or mainly factual.
  • Deferential review: The reviewing court does not redo the decision from scratch; it upholds the agency unless the agency’s conclusion falls outside the bounds of reasonable decisionmaking under the governing standard.

V. Conclusion

Baro v. Blanche establishes two key Sixth Circuit principles: the BIA’s 30-day administrative appeal deadline in 8 C.F.R. § 1003.38(b) is nonjurisdictional, and courts should review the Board’s ultimate equitable-tolling determinations deferentially because they are fact-intensive mixed questions. Applying those rules, the court upheld the Board’s denial of tolling on the ground that Baro failed to demonstrate continuous diligence over the months-long delay—particularly given limited objective corroboration of prolonged incapacity and substantial delay even after she felt better and retained counsel. In the broader landscape, the decision both preserves equitable tolling in principle and makes clear that, on review, petitioners must overcome significant deference and must document not only hardship but sustained diligence.