David Cruz Perez v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-1618
D AVID CRUZ PEREZ ,
Petitioner
v.
ATTORNEY G ENERAL OF THE UNITED STATES OF A MERICA
_____________________________
On Petition for Review from a Decision of the Board of Immigration Appeals
Immigration Judge Hugh Mullane, No. A216-494-426
Before: BIBAS , PORTER, and BOVE , Circuit Judges
Submitted Jan. 27, 2026; Decided Jan. 27, 2026 _____________________________
NONPRECEDENTIAL O PINION*
PORTER , Circuit Judge.
David Cruz Perez petitions for review of a Board of Immigration Appeals (“BIA”)
order dismissing his immigration appeal as untimely. We will deny the petition.
I
David Cruz Perez, a citizen of Mexico, illegally entered the United States at an
unknown time and place. The United States initiated removal proceedings against him in
2018, and he applied for cancellation of removal and adjustment of status for a non-
permanent resident. The Immigration Judge (“IJ”) held a merits hearing on July 26, 2021,
telling him that “the parties will receive either a new notice of hearing or a written
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not
binding precedent.

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decision by mail.” Certified Administrative Record (“CAR”) at 210. The IJ ordered Cruz
Perez removed on August 25, 2021, but the record suggests the removal orders were not
immediately mailed to Cruz Perez. Cruz Perez’s attorney physically appeared at the
Clerk’s office on September 10, 2021, to file a motion, and on September 13 the
Immigration Court mailed him a notice rejecting his motion because “the evidentiary
record is closed . . . [based on the] attached [removal] order.” CAR at 35. Cruz Perez’s
counsel waited until December 3, 2021, to read that mailing and the BIA did not receive
his appeal until December 9, 2021. The BIA dismissed his appeal as untimely.
Cruz Perez now petitions our Court for review of the BIA’s dismissal order. He
claims the Immigration Court’s service of the removal order was improper because it was
“practically ‘snuck’ into his lawyer’s hands” and was served at the same time as the IJ’s
denial of one of his motions. Cruz Perez Br. at 8. He also claims the BIA erred by not
equitably tolling the statute of limitations for his appeal.
II
A
When an immigration judge orders an alien removed, that alien is entitled to notice
of the decision and of his right to appeal. 8 U.S.C. § 1229a(c)(5). For written orders, the
notice may be served by personal service, mail, or electronic notification. 8 C.F.R.
§ 1003.37(a). When the alien is represented by counsel, service must be made on his
counsel. 8 C.F.R. § 1292.5(a). It’s undisputed that the IJ here fulfilled his statutory and

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regulatory obligations by serving the removal order on Cruz Perez’s counsel by mail.1
Rather, Cruz Perez claims the form of service violated “fundamental principles of
due process” because the removal order was attached to the denial of his September 10,
2021, filing. Cruz Perez Br. at 7. “[T]he Fifth Amendment entitles aliens to due process
of law in the context of removal proceedings.” Trump v. J.G.G., 604 U.S. 670, 673
(2025) (internal quotations omitted). But due process is a flexible standard, requiring
“notice and [an] opportunity to be heard appropriate to the nature of the case.” Id.
(citation omitted).
The “rejected filing notice” was mailed to Cruz Perez’s counsel and states that the
reason for the rejection of his motion is that “[t]he evidentiary record is closed.” CAR at
35. And in the very next sentence, it exhorts counsel to “see attached order.” Id. The
referenced attached order was the removal order, which informed Cruz Perez of his right
to appeal. Also included in the mailing was an untitled notice that the “IJ order [is]
attached.” CAR at 33. Thus, counsel was informed in two places that the removal order
was included in the mailing. This notice was “reasonably calculated, under all the
circumstances, to apprise” Cruz Perez of the removal order and his right to appeal.2 In re
1 Cruz Perez claims that the IJ “may have been” statutorily unable to delegate the
duty to inform him of his right to appeal to the Clerk’s office. Cruz Perez Br. at 21–22.
Even if this issue were exhausted below, such “casual mention of an issue in a brief is
cursory treatment insufficient to preserve the issue on appeal.” Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993).
2 As Cruz Perez points out, the appeal deadline of September 27, 2021, stated on the
removal order is wrong given the service date of September 13, 2021. See 8 C.F.R.
§ 1003.38(b) (setting 30-day deadline to file appeal with the BIA). But Cruz Perez did
not appeal the IJ’s order until December 9, long after the actual appeal deadline. Thus,

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NFL Players Concussion Injury Litig., 821 F.3d 410, 446 (3d Cir. 2016) (citation
omitted).
To support his attenuated due process theory, Cruz Perez cites the Supreme
Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021). But that case is
inapposite—it related to statutory, not constitutional, notice requirements under a statute
not at issue here. And it forbade the government from sending critical hearing
information in piecemeal notices, which is not what the IJ did here.
B
Cruz Perez next argues the BIA erred by not equitably tolling the BIA appeal
deadline. A petitioner is entitled to equitable tolling of the 30-day BIA appeal deadline if
the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Nkomo v. Att’y
Gen., 986 F. 3d 268, 272–73 (3d Cir. 2021).
Cruz Perez did not diligently pursue his rights. “Due diligence must be exercised
over the entire period for which tolling is desired.” Alzaarir v. Att’y Gen., 639 F.3d 86, 90
(3d Cir. 2011). The IJ had placed Cruz Perez’s counsel on notice in July of 2021 to
expect a mailed hearing notice or decision from the Immigration Court. But when he
received a mailing from the Immigration Court in September, he waited three months to
even “peruse” it. Cruz Perez Br. at 8. Cruz Perez claims he and his counsel are “entirely
blameless” for missing the BIA appeal deadline because there was no way for him to
even if that error violated due process, Cruz Perez cannot show that it caused him
“substantial prejudice.” Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006).

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know that the September 13, 2021, mailing had a removal order attached to it. Cruz Perez
Br. at 18. But there was one way to know—by reading his mail. Counsel never did so.
Nor, evidently, did he even check on the status of the case, which would have revealed
the final removal order. That’s far from diligent.
Having concluded that Cruz Perez failed to diligently pursue his rights, the Court
need not address his proposed extraordinary circumstances, which themselves are
wanting. Cruz Perez is not entitled to equitable tolling.
III
For the reasons set forth above, we will DENY the petition for review.

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