Arturo Barrientos v. Loretta E. Lynch
829 F.3d 1064
9th Cir.2016Background
- Petitioner Arturo Barrientos, detained at Northwest Detention Center, sought review of the BIA’s denial of withholding of removal and CAT protection; BIA decision dated Sept. 9, 2014.
- Statutory 30-day deadline to file petition for review made the filing due by Oct. 9, 2014.
- Barrientos’s petition was dated Oct. 7, 2014, but the Ninth Circuit clerk received it Oct. 14, 2014 (five days late).
- Barrientos did not initially include the affidavit or notarized statement required by Fed. R. App. P. 25(a)(2)(C) to invoke the prison-mailbox rule.
- On supplemental briefing, Barrientos moved to submit a post-filing affidavit stating he deposited the petition in the facility’s outgoing mail receptacle on Oct. 7 with prepaid postage; the government did not oppose and later conceded timeliness.
- Court also received the detention center’s outgoing mail log showing mail from Barrientos dated Oct. 8, 2014; the panel exercised discretion to consider the late evidence and found the petition timely, giving the court jurisdiction under 8 U.S.C. § 1252.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barrientos timely filed under the prison-mailbox rule (Fed. R. App. P. 25(a)(2)(C)) | Barrientos: deposited petition in detention center outgoing mail on Oct. 7 and qualifies for Rule 25(a)(2)(C) benefits (affidavit and mail log supplied later). | Government: initially contested lack of contemporaneous affidavit but did not oppose after affidavit and conceded timeliness at argument. | Court: allowed post-filing affidavit and mail log in its discretion and concluded the petition was timely. |
| Whether the court may consider an inmate’s declaration submitted after the legal filing and how to weight it | Barrientos: late affidavit corroborated by mail log should be considered to show timely deposit. | Government: argued procedural requirements but ultimately conceded after affidavit; courts may reject greatly delayed affidavits. | Court: adopts Grady approach — has discretion to refuse or give less weight to non-contemporaneous affidavits; here it exercised discretion to credit the affidavit and mail log. |
Key Cases Cited
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (30-day petition-for-review deadline is mandatory and jurisdictional)
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (timeliness rules tied to jurisdiction)
- Sheviakov v. INS, 237 F.3d 1144 (9th Cir. 2001) (plain meaning of "receives" rejects a mailbox rule for general appellate filings)
- Houston v. Lack, 487 U.S. 266 (U.S. 1988) (mailbox rule for inmates’ notices of appeal)
- Grady v. United States, 269 F.3d 913 (8th Cir. 2001) (Rule 4(c) does not require contemporaneous affidavit; courts may reject or discount late affidavits)
- Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) (courts may consider extra-record evidence to determine jurisdictional prerequisites)