Guillеrmo IRIGOYEN-BRIONES, aka Jose Vega-Ramirez, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 07-71806.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 15, 2009. Filed Sept. 29, 2009.
582 F.3d 1062
Charles Canter & Ronald E. LeFevre, U.S. Department of Justice, Washington, DC, for the respondent.
Before: EUGENE E. SILER, JR.,* ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge KLEINFELD.
Guillermo Irigoyen-Briones (Irigoyen-Briones) petitions for review of the Board of Immigration Appeals’ (BIA) denial of his motion to reconsider its rejection of his appeal of an Immigration Judge‘s (IJ) decision as being untimely filed. Irigoyen-Briones sought to excuse the late filing as having been caused by an overnight delivery service‘s failure to deliver the notice until the day after the BIA‘s thirty-day deadline. He argues that the BIA‘s determination that it lacks jurisdiction to extend the appeal filing deadline conflicts with this court‘s decision in Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir.2005), which held on similar facts that the deadline is “subject to exceptions in ‘rare circumstances.‘” In response, the Attorney General asserts that the BIA‘s subsequent decision in In re Liadov, 23 I & N Dec. 990 (BIA 2006), which expressly addressed and rejected the holding in Oh, is the governing authority. Because
FACTUAL AND PROCEDURAL BACKGROUND
A. Removability Charges and IJ Proceedings
Irigoyen-Briones, a native and citizen of Mexico, entered the United States illegally in 1991. In November 2003, United States Immigrаtion and Customs Enforcement commenced proceedings against him by filing a Notice to Appear (NTA), charging him with removability as an alien present in the United States without being admitted or paroled, pursuant to
At a hearing before an IJ in December 2003, Irigoyen-Briones admitted the allegations in the NTA and conceded removability. In October 2004, he filed an application for cancellation of removal or, in the alternative, for voluntary departure. The IJ denied these requests in December 2006.
1. Initial Appeal
On January 18, 2007, Irigoyen-Briones’ counsel filed a Notice of Appeal (NOA) with the BIA. The BIA dismissed the appeal as untimely because, pursuant to
2. Motion for Reconsideration
In March 2007, Irigoyen-Briones filed a motion for reconsideration or, in the alternative, for the BIA to certify the appeal to itself. He argued that the BIA had jurisdiction over his untimely appeal in light of the “rare circumstances” exception explained in Oh v. Gonzales, 406 F.3d 611, and Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105 (2d Cir.2005).
In a supporting declaration, Irigoyen-Briones’ counsel stated that after he retained her on January 8, 2007, she made an appointment with the Immigration Court on January 11, 2007, to listen to the tape recordings of the IJ proceedings. “Upon opening the envelope containing the tapes, [she] was surprised to find that there were (at least) five tapes,” which included a “rather long” oral decision by the IJ, and needed to “research a few legal issues before [she] could write the Notice of Appeal with enough specificity so that it would not be summarily dismissed.” She completed this additional research and prepared the NOA by the end of January 13, 2007, and was aware that there would be no mail service on January 14 or 15, 2007, because the 14th was a Sunday and the 15th was Dr. Martin Luther King, Jr. Day.
Counsel‘s declaration further states that, on January 16, 2007, she mailed the NOA via the United States Postal Service‘s (USPS) Express Mail delivery service, which guaranteed delivery of the NOA to the BIA on the due date of January 17, 2007. She notes that although the cut-off time for a next-day delivery to the BIA was 4:00 p.m., she delivered the NOA to the USPS station at 10:40 a.m. to ensure that there was ample time for the delivery, and that in her over ten years of experience using USPS for overnight deliveries, she had never before had a document delivered late. She also states that “USPS, through its agent with whom[she] spoke by telephone, admits that it failed in delivering the Express Mail package as guaranteed and indicates that they will provide a refund upon request at any post office.”
In denying Irigoyen-Briones’ motion for reconsideration, the BIA first observed that rather than establishing an “error of fact or law in the Board‘s prior decision,” he instead argued that “the Board should make an exception to the filing deadline, or at the very least, accept the appeal on certification.” Next, the BIA noted counsel‘s argument that “unlike the respondent in [In re] Liadov, 23 I & N Dec. 990 (BIA 2006), she did not wait until the last possible moment to prepare the brief, but worked diligently for several days to prepare [it], even traveling to the Immigration Court in San Francisco to listen to the tape of the Immigration Judge‘s decision.” The BIA then concluded:
The Board does not observe the mailbox rule (accepting the mailing date as the filing date). A Notice of Appeal from the decision of an Immigration Judge must be filed at the Board no later than 30 calendar days after the Immigration Judge renders an oral decision or mails
a writtеn decision. Receipt by any other entity—be it the U.S. Postal Service, commercial courier, or institution of detention—does not suffice. The regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 C.F.R. § 1003.38(b) . Short delays in delivery are to be expected, and they do not warrant consideration of an untimely appeal on certification. See [In re] Liadov.
This petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to
DISCUSSION
Irigoyen-Briones argues that the BIA‘s determination that it lacks authority to extend an appeal filing deadline under
A. Oh
In Oh, the petitioner similarly appealed the BIA‘s denial of her motion to reconsider its prior decision dismissing her appeal of an IJ‘s order as untimely filed, arguing that the BIA should have “excuse[d] the late filing as having been caused by an overnight delivery servicе‘s failure to deliver the notice until well past the BIA‘s 30-day filing deadline.” 406 F.3d at 612. The IJ had issued his decision, and thereby triggered the thirty-day deadline, on January 10, 2003, and the petitioner had mailed her NOA by overnight mail on February 4, 2003. Id. The carrier, however, failed to deliver the NOA until February 24, 2003. Id. In denying the petitioner‘s motion for reconsideration, the BIA, as in the present case, ruled that it “does not have the authority to extend the time in which to file a Notice of Appeal” under
Based on this reasoning, the Oh court held that “[t]he BIA‘s deadline is thus subject to exceptions in ‘rare circumstances,’ even when the notice of appeal does not actually arrive before the deadline.” Id. (citing Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir.2001) (en banc), for the proposition that “[i]f a time limit is jurisdictional, it is not subject to the defenses of waiver, equitable tolling, or equitable estoppel, although there may still be exceptions based on unique circumstances” (emphasis added) (citation and internal quotation marks omitted)). The court then applied this holding, stating:
On its face, Oh‘s use of one of the overnight delivery services the BIA recommends (Airborne Express is identified by name) would appear to qualify her for relief from late filing as a unique or rare circumstance—or at least to be considered for such relief, with some reasoned explanation should the BIA reject her proffered excuse. As the case comes to us, Oh has a colorable claim that she was misled into relying on the recommended overnight delivery service, and on the “rare circumstance” exception to remedy what appears to be an extraordinary lapse on Airborne‘s part. The BIA‘s refusal to reconsider her claim in these circumstances, based on its erroneous assumption that it lacked authority to do so, was an abuse of discretion.
Id. Accordingly, the court “remand[ed] to allow the BIA to exercise its discretion as to whether to accept Oh‘s late-arriving notice of appeal as a ‘rare circumstance.‘” Id.3
B. In re Liadov
A year after the Oh decision, the BIA expressly addressed and disagreed with it in In re Liadov, 23 I & N Dec. 990 (BIA 2006). Specifically, the BIA stated:
The regulations governing appeals to the Board, the statute governing administrative appeals in asylum cases, and the authority of the Supreme Court all require that filing deadlines be strictly enforced and thus that appeals be timely filed. Neither the statute nor the regulations grant us the authority to extend the time for filing appeals. We therefore do not agree with the court‘s suggestion in Oh v. Gonzales ... that we have the authority to extend the appeal time.
Liadov, 23 I & N Dec. at 993. Importantly, however, the BIA also held that “[w]here a case presents exceptional circumstances, the Board may certify a case to itself under
C. The BIA‘s Reasonable Interpretation of Its Regulations in Liadov is Entitled to Deference
Although Irigoyen-Briones asserts that the BIA‘s reading of
Applying these principles here, we hold that the plain language of
The Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge ... shall be filed directly with the Board of Immigration Appeals within 30 calendar days after
the stating of an Immigration Judge‘s oral decision or the mailing of an Immigration Judge‘s written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day.
For the following reasons, we also hold that the BIA‘s interpretation of
Second, as explained in Liadov, the BIA‘s interpretation conforms to the wording of the BIA‘s own Practice Manual:
The Board of Immigration Appeals Practice Manual (“Practice Manual“) ..., which also addresses the issue of filing appeals, emphasizes the importance of timely filings. It clearly states that an appeal or motion is not deemed filed until it is received by the Board and that the Board does not observe the “mailbox” rule. See [Practice Manual] § 3.1(a)(i), at 31 (July 30, 2004).... Moreover, in two places the Practice Manual specifically cautions that use of an overnight delivery service does not mean that failing to meet filing deadlines will bе excused. According to § 3.1(a)(iv), “the failure of a courier or overnight delivery service does not excuse parties from meeting filing deadlines.” [Practice Manual] § 3.1(a)(iv), at 32. In addition, § 3.1(b)(iv) provides, in pertinent part, as follows:
Delays in delivery.—Postal or delivery delays do not affect existing deadlines, nor does the Board excuse untimeliness due to such delays, except in rare circumstances. Parties should anticipate all Post Office and courier delays, whether the filing is made through first class mail, priority mail, or any overnight or other guaranteed delivery service.
Liadov, 23 I & N Dec. at 991-92. It is true, as the Oh court noted, that the Practice Manual “acknowledges that in ‘rare circumstances’ the BIA may excuse late filings.” 406 F.3d at 613. However, given that this acknowledgment is consistent with the BIA‘s conclusion in Liadov that it may still take untimely cases in “rare” or “extraordinary” circumstances pursuant to its discretionary certification authority under
Third, the BIA‘s construction sensibly conforms to the purpose of the regulations.
Fourth, the BIA‘s interpretation comports with the Supreme Court‘s approval of the adoption of strict filing deadlines in other contexts. In United States v. Locke, for example, the Court stated:
The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1-day late filings are acceptablе, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. “Any less rigid standard would risk encouraging a lax attitude toward filing dates[.]” A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.
471 U.S. 84, 101, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (quoting United States v. Boyle, 469 U.S. 241, 249, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985)). In addition, the Court recently clarified that “the timely filing of a notice of appeal in a civil case is а jurisdictional requirement,” and that “[b]ecause th[e] Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).
Finally, as the Eighth Circuit noted in similarly deferring to the BIA‘s interpretation in Liadov as a “permissible interpretation” of
Accordingly, because
CONCLUSION
We conclude that, based on Supreme Court precedent, we must defer to the BIA‘s reasonable interpretation in Liadov that the agency lacks authority to extend the thirty-day deadline for filing an appeal. As a result, the BIA did not abuse its discretion in denying Irigoyеn-Briones’ motion to reconsider its rejection of his appeal of the IJ‘s decision as being untimely filed.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. I am filing the same dissent in Irigoyen-Briones v. Holder, No. 07-71806, 2009 WL 3085999 and Turcios v. Holder, No. 05-72258, 2009 WL 3086015, because these two cases raise identical legal issues, in materially similar factual and legal contexts. The issue in both cases is whether the Board of Immi-
In Turcios, the alien‘s lawyer аttached to his motion for reconsideration a letter from FedEx Express. FedEx says that although “the shipment was due for delivery by 10:30 a.m. on December 23 ... severe weather conditions caused an extensive and lengthy disruption of our transportation system, and thus the parcel did not reach its destination on the anticipated date. Delivery was completed on December 27 at 10:00 a.m.”
In Irigoyen-Briones, the alien‘s lawyer personally brought the notice of appeal to the post office first thing in the morning for guaranteed express mail delivery the next day, which would have been timely. However, for the first time in over ten years, Irigoyen-Briones‘s attorney was let down by late Express Mail delivery. A clerk told her that some sort of error appearеd to have been made by the post office at the airport in Virginia. The post office error caused the notice of appeal to get to the BIA a day late.1
Although the BIA interprets the statutes and regulations as requiring that filing deadlines be strictly enforced, the BIA also acknowledges that it has the authority to relieve litigants from the consequences of late filing for “exceptional circumstances.”2 The BIA, in both cases, followed its own panel decision in In re Liadov,3 which held that “short delays by overnight delivery services” are not “extraordinary,” so “appellants must take such possibilities into account and act accordingly.”4 The only place notices of appeal can be filed is Falls Church, Virginia,5 so evidently “act accordingly” means fly to one of the D.C. area аirports or send the notice at some unknown and unpredictable time prior to the deadline so that the BIA would think the delivery service delay “extraordinary.” The Board holds that even though it lacks authority to extend the thirty day deadline, it does have authority to “certify a case to itself under
Oddly, the BIA does not provide for any means of filing notices of appeal other than showing up in Falls Church, Virginia—not a trip most aliens could afford to pay their lawyers to make from outside the Beltway—or sending the papers by post office or private delivery service. Federal courts, no seekers of novelty themselves, generally provide for electronic case filing.7 The Federal Rules of Civil Proce-
The Board has tossed a couple of red herrings across the path tо justice. First, it says that the thirty day deadline is jurisdictional and it lacks authority to extend it. But as the Board says in Liadov, it nevertheless retains authority to grant relief from late filing in “exceptional” or “extraordinary” circumstances. Second, the Board says it does not have a “mailbox rule.” This argument is irrelevant, because no one argues that it does. A “mailbox rule” means that an act is deemed accomplished when the required submission is mailed as opposed to when it is received or filed. For example, a “mailbox rule” lets us comply with the April 15 due date for tax returns by mailing them that day,9 and lets attorneys comply with motion and opposition deadlines by service, that is, mailing, rather than receipt or filing.10 The lawyers for Turcios and Irigoyen-Briones contеnd, not that the notices of appeal should be deemed filed when they sent them, but rather that they ought to be relieved from lateness because they sent them such that ordinarily they would have been received timely.
Liadov, on which the Board relies in both these cases, itself relies heavily on the Board‘s own Practice Manual, for which it gives an internet citation.11 The disclaimer at section 1.1(c) of the manual says it does not carry the force of law or regulation and should not be relied on, so Auer and Chevron deference to it would be inappropriate. The Manual says that “[b]ecause filings are date-stamped upon arrival at the Board, the Board strongly recommends that parties file as far in advance of the deadline as pоssible, and, whenever possible, use overnight delivery couriers, (such as United Parcel Service, Federal Express, Airborne Express, DHL) to assure timely receipt.”12 We said in Oh v. Gonzales13 that “use of one of the overnight delivery services the BIA expressly recommends ... would appear to qualify [petitioners] for relief from late filing as a unique or rare circumstance—or at least to be considered for such relief, with some reasoned explanation should the BIA reject [petitioners] proffered excuse.” Here, the BIA simply brushed aside Turcios‘s and Irigoyen-Briones‘s explanations for the lateness of their notices of appeal and deemed them untimely filed, even though both provided persuasive evidence that they had acted reasonably to cause timely filing.
As the majority concedes, we held in Oh v. Gonzales15 that the time limit for appeal to the BIA was subject to discretionary relief. We further held that its construction of its filing deadline—limiting relief to sua sponte reconsideration in exceptional circumstances—was an error of law. To my mind, it stretches deference to administrative agencies too far to hold, as the majority does, that by insisting on its error, Liadov makes the error good law. We defer only to reasonable constructions. Liadov is not a reasonable construction by the BIA of its regulations, because this construction deprives aliens who attempt to appeal of due process of law.
The Second Circuit in Zhong Guang Sun v. U.S. Dep‘t of Justice joins our view in Oh and cites language consistent with our view from the Sixth, Seventh, and Eighth Circuits.16 Where the petition came in several days late beсause of an Airborne Express error, the Second Circuit holds that the BIA did not lack jurisdiction, and remands because failure of timely delivery by a courier service designated in the BIA‘s practice manual “may well, indeed, fall within the realm of the ‘extraordinary’ if not the ‘unique.‘”17
The agency‘s interpretation conflicts with the Supreme Court‘s interpretation in Houston v. Lack.18 Even though federal courts of appeal deadlines for filing notices of appeal are jurisdictional, Houston holds that pro se prisoners are deemed to have filed timely when they have not actually filed, but have timely tendered their papers to prison officials. And, the last day is fine—they need not have given their papers to prison officials a few days before the filing deadline. The reason is that they “ha[ve] done all that could reasonably be expected” to file on time.19 Substituting “aliens” for “prisoners” in Houston‘s ratio decidendi suggests that Houston ought to be extended to aliens.
Such [aliens] cannot take the steps other litigants can take to monitor the pro-
We extended Houston to aliens’ appeals to the BIA in Gonzalez-Julio v. INS.21 There we went so far as to hold that the then-ten day limit for filing notices of appeal denied due process of law. The reason was that there were “two risks of delay which were not in the aliens control: delay in mail delivery and delay in filing after receipt by the Office.”22 Applying the principle enunciated by the Supreme Court in Logan v. Zimmerman Brush Co.23 we held that the alien was entitled by the Due Process Clause to an opportunity to be heard on his appeal “at a meaningful time and in a meaningful manner.”24 In Gonzalez-Julio, fifteen years ago, we noted that the BIA could obviate much of the problems reasonable accommodation could cause by allowing filing within a reasonable distance of the alien‘s residence instead of limiting it to Falls Church, Virginia. Now, fifteen years later, the government‘s justification for requiring physical filing in Falls Church has become technologically obsolete, and the practicality of enforcing a rigid filing date without arbitrariness much greater, because the Board could easily adopt electronic filing. There would be nothing wrong with a rigid filing deadline if it could be complied with from anywhere in this huge country by email. A rigid deadline is fundamentally unfair if people cannot assure their own compliance.
The BIA‘s answer to the application of the Houston “not within his control” justification for requiring acceptance of late filing is that the alien should “file as far in advance of the deadline as possible.”25 That answer is constitutionally unsatisfactory because a person with fundamental interests at stake is entitled to certainty about when he must ask to be heard in order to get a hearing. Nor is thirty days so long a time that a few days here or there should not matter to the alien. The alien owns the thirty days. He needs to know, for purposes of filing on time, exactly when they end.
All of the thirty days are likely to be essential. Aliens’ appeals are not, by and large, handled by giant spare-no-expense law firms, in which a partner can command a senior associate who can command a junior associate to have something on his desk by 9:00 A.M. Monday without fail, and whatever expenses are necessary to accomplish that will be borne. The record in Irigoyen-Briones describes the details of a typical case, and there is no reason to doubt that they are typical. The alien had lost his case before the IJ pro se, just before Christmas on December 18, and came to a lawyer‘s office right after New Year‘s, January 4. The lawyer could not do anything without listening to the Immigration Court‘s tapes (not yet transcribed, of course), and needed a retainer before in-
“The fundamental requisite of due process of law is the opportunity to be heard.”26 The interest at stake in immigration cases, as in many others, is very important. Though some are frivolous, some are an alien‘s only chance to avoid unjustified destruction of his family or even torture and death in some benighted country. Due process of law requires that the government refrain frоm destroying life, liberty, or property with fundamentally unfair procedure. It does so if it denies a person an opportunity within his control to be heard. In these two cases, that is what it did. What is worse, the government‘s important interest in proceeding expeditiously with these cases and requiring compliance with reasonable time limits can easily be protected, without subjecting aliens to the risk of losing their appeals to bad weather or post office error. All it need do is what courts and private companies routinely do: allow people to email their notices of appeal. It is a cruel irony that the Board publishes the manual that lawyers are supposed to use as guidance on the internet, yet pretеnds the internet does not exist when it comes to receiving papers as opposed to distributing them.
Orlando TURCIOS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 05-72258.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 15, 2009. Filed Sept. 29, 2009.
Notes
Jurisdiction by certification. The Commissioner, or any duly authorized officer of the Service, an Immigration Judge, or the Board may in any case arising under paragraph (b) of this section certify such case to the Board. The Board in its discretion may review any such case by certification without regard to the provisions of [8 C.F.R.] § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the Board regarding the case, including the opportunity request oral argument and to submit a brief. 23 I & N Dec. at 993.