Turcios v. Holder , 582 F.3d 1075 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO TURCIOS, 
Petitioner,
No. 05-72258
v.  Agency No.
A18-473-869
ERIC H. HOLDER, JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 15, 2009—San Francisco, California
Filed September 29, 2009
Before: Eugene E. Siler, Jr.,* Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Siler;
Dissent by Judge Kleinfeld
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
13999
TURCIOS v. HOLDER 14001
COUNSEL
Martin Avila Robles, San Francisco, California, for the peti-
tioner.
Allen W. Hausman, U.S. Department of Justice, Washington,
DC, for the respondent.
OPINION
EUGENE E. SILER, JR., Senior Circuit Judge:
Orlando Turcios petitions for review of the Board of Immi-
gration Appeals’s (BIA) denial of his motion to reconsider its
rejection of his appeal of an Immigration Judge’s (IJ) decision
as being untimely filed. Because we lack jurisdiction to
review the petition, it must be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Turcios is a citizen of Nicaragua. In October 2003, removal
proceedings were commenced against him. The notice to
appear alleged that Turcios was admitted to the United States
14002 TURCIOS v. HOLDER
as a lawful permanent resident in 1968, sought to reenter the
United States in 2003, was paroled into the United States for
deferred inspection, and had his parole was revoked in Octo-
ber 2003. Turcios was previously convicted of sale of
cocaine, felony spousal abuse, resisting arrest, and eight sepa-
rate instances of petty theft while in the United States. The
notice to appear indicated that he was removable under 8
U.S.C. §§ 1182(a)(2)(A)(i)(I) and (II) for his convictions for
a crime relating to a controlled substance, and a crime involv-
ing moral turpitude. At the hearing before the IJ, Turcios
admitted all of his convictions and conceded removability.
The IJ issued the order of deportation. On the order, the IJ
instructed that any appeal to the BIA was “due by 12/23/04.”
On December 22, 2004, one day before the notice of appeal
was due, Turcios’s counsel delivered the notice to Federal
Express for overnight delivery. The notice of appeal was not
received by the BIA until December 27, 2004.
The BIA entered an order dismissing the appeal as
untimely. Turcios filed a motion before the BIA to reconsider
its decision and reopen his proceedings. His motion explained
that the notice was delivered late due to severe winter weather
conditions. He attached a letter from Federal Express indicat-
ing that the late delivery was due to the winter weather.
In March 2005, the BIA denied the motion to reconsider
because the motion merely offered an explanation for late
delivery and did not expose an error of fact or law in the prior
decision. This petition followed.
STANDARD OF REVIEW
This court has jurisdiction over petitions for review to “de-
termine our jurisdiction.” Fernandez-Ruiz v. Gonzales, 410
F.3d 585, 586-87 (9th Cir. 2005), adopted in part by, 466
F.3d 1121, 1124 (9th Cir. 2006) (en banc) (“We adopt the
portion of the panel’s opinion addressing the government’s
TURCIOS v. HOLDER 14003
claim that, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdic-
tion . . . .”). We review the jurisdictional limitations of the
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) de novo. Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004).
DISCUSSION
Generally, the Courts of Appeals have jurisdiction to
review final removal orders of the BIA. 8 U.S.C. § 1252(a).
However, Congress has restricted judicial review where an
alien is removable based on a conviction for certain crimes.
8 U.S.C. § 1252(a)(2)(C). Such crimes include those involv-
ing moral turpitude (other than a purely political offense), 8
U.S.C. § 1182(a)(2)(A)(i), and a violation of any state law
relating to a controlled substance other than a single offense
of possession of a small quantity of marijuana, 8 U.S.C.
§ 1182(a)(2)(B)(i).
Turcios’s convictions are covered under 8 U.S.C.
§ 1252(a)(2)(C). He admitted that he was previously con-
victed of sale of cocaine, felony spousal abuse, resisting
arrest, and eight separate instances of petty theft while in the
United States. Petty theft is a crime involving moral turpitude,
United States v. Esparza-Ponce, 193 F.3d 1133, 1135-37 (9th
Cir. 1999), and spousal abuse is a crime of moral turpitude.
Grageda v. U.S. INS, 12 F.3d 919, 922 (9th Cir. 1993).
[1] As noted by Turcios, the REAL ID Act of 2005 pro-
vides that the restriction on judicial review for criminal aliens
be construed so as to preserve this court’s jurisdiction to
address constitutional claims and issues of law raised in peti-
tions for review. Fernandez-Ruiz, 410 F.3d at 587. Turcios
argues that whether the BIA abused its discretion in denying
the motion to reconsider as untimely is a question of law
which this court has jurisdiction to consider.
[2] In reviewing this question, other courts have determined
that the REAL ID Act does not confer jurisdiction over chal-
14004 TURCIOS v. HOLDER
lenges to the exercise of routine discretion by the BIA. See De
La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006) (hold-
ing that upon review of circuit case law and the legislative
history of Section 106 of the REAL ID Act, nothing in that
section confers jurisdiction over challenges to the exercise of
routine discretion by the BIA); Xiao Ji Chen v. United States,
434 F.3d 144, 151-54 (2d Cir. 2006) (holding that challenges
to the exercise of routine discretion by the Attorney General
(or the IJ as his designee) do not raise “constitutional claims
or questions of law” under Section 106 of the REAL ID Act);
Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005)
(“[Section 106] grants no jurisdiction to review an IJ’s purely
discretionary decision to deny a continuance of a removal
hearing, unless that ruling resulted in such procedural unfair-
ness as to implicate due process.”); Vasile v. Gonzales, 417
F.3d 766, 768 (7th Cir. 2005) (“Notwithstanding § 106(a) of
the [REAL ID] Act, . . . discretionary or factual determina-
tions continue to fall outside the jurisdiction of the court of
appeals entertaining a petition for review.”); Gattem v. Gon-
zales, 412 F.3d 758, 767 & n.8 (7th Cir. 2005) (holding that,
under Section 106, the Courts of Appeals have jurisdiction to
consider “question[s] of law” raised in petitions for review,
but not discretionary decisions of the Attorney General).
[3] Turcios challenges only the BIA’s denial of discretion-
ary relief of reconsideration of its prior decision dismissing
the untimely notice of appeal. He does not raise any constitu-
tional challenges, nor does he raise any questions of law as
contemplated by the REAL ID Act. Since the BIA’s denial of
Turcios’s motion to reconsider was an exercise of routine dis-
cretion, we dismiss for lack of jurisdiction.
DISMISSED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. I am filing the same dissent in
Irigoyen-Briones v. Holder, No. 07-71806 and Turcios v.
TURCIOS v. HOLDER 14005
Holder, No. 05-72258, 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 Immigration
Appeals ought to have considered an appeal that was sent in
time to arrive before the deadline, and was guaranteed by the
shipper to arrive in time, but got stamped in at Board head-
quarters the day after the due date. The merits are not at issue
before us, just lateness. The issue of lateness affects innumer-
able cases, and it is a matter of chance whether an alien
attempting to appeal falls into this pit.
In Turcios, the alien’s lawyer attached 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 exten-
sive 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 morn-
ing 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
appeared 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 circum-
1
With the drollness characteristic of these sorts of errors, FedEx said
that it regretted “any inconvenience,” and the United States Postal Service
offered to refund the postage counsel had paid for guaranteed next day
delivery.
14006 TURCIOS v. HOLDER
stances.”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 “ap-
pellants must take such possibilities into account and act accord-
ingly.”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 airports or send the notice at some
unknown and unpredictable time prior to the deadline so that
the BIA would think the delivery service delay “extraordi-
nary.” The Board holds that even though it lacks authority to
extend the thirty day deadline, it does have authority to “cer-
tify a case to itself under 8 C.F.R. 1003.1(c)” ”where a case
presents exceptional circumstances.”6
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 law-
yers 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-
dure expressly address electronic filing.8 Doubtless electronic
2
See 8 C.F.R. § 1003.1(c); In re Liadov, 23 I&N Dec. 990 (BIA 2006).
3
23 I&N Dec. 990 (BIA 2006).
4
23 I&N Dec. at 993.
5
See Executive Office of Immigration Review, U.S. Dep’t of Justice,
Form EOIR-26, *1 (2008), http://www.usdoj.gov/eoir/eoirforms/
eoir26.pdf.
6
In re Liadov, 23 I&N Dec. 990, 993 (BIA 2006).
7
See, e.g., 9th Cir. Admin. Order Re Electronic Filing (Nov.10, 2008);
3d Cir. R. 25.1; 4th Cir. Admin. Order 08-01 (Apr. 1, 2008); 6th Cir.
Admin. Order 08-01 (May 7, 2008); 8th Cir. R. 25A; 10th Cir. Gen. Order
95-01 (Mar. 18, 2009); D.C. Cir. Admin. Order (May 15, 2009); D. Alaska
R. 5.3; C.D. Cal. Gen. Order 08-02 (Feb. 7, 2008); E.D. Cal. R. 5-133;
N.D. Cal. Gen. Order 45 (Nov. 18, 2004); S.D. Cal. R. 5.4; D. Haw. Gen.
Order (May 1, 2006); D. Idaho R. 5.1; D. Mont. R. 5.1; D. Or. R. 100.3;
E.D. Wash. R. 5.1; W.D. Wash. R. 5.
8
Fed. R. Civ. P. 5(d)(3).
TURCIOS v. HOLDER 14007
filing saves attorneys in places like Alaska, or for that matter
most of the rest of the country, a great deal of money on ulcer
medicine, and more important, saves their clients from the
risk of arbitrary horrendous consequences due to chance post
office and delivery delays. It was an Act of God that weather
prevented timely delivery of Turcios’s FedEx package, but
the consequence of that late delivery was easily avoidable by
people at the agency. Just as we have for many decades
assumed the availability of telephones, automobiles, and air-
planes, we ought to be able to assume the availability of email
over the internet.
The Board has tossed a couple of red herrings across the
path to 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” cir-
cumstances. Second, the Board says it does not have a “mail-
box 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 “mail-
box 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, mail-
ing, rather than receipt or filing.10 The lawyers for Turcios and
Iriguyen-Briones contend, 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
9
26 U.S.C.A. § 7502(a).
10
Fed. R. Civ. P. 5(b)(C).
14008 TURCIOS v. HOLDER
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 regula-
tion and should not be relied on, so Auer and Chevron defer-
ence 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 possible, and, whenever possible,
use overnight delivery couriers, (such as United Parcel Ser-
vice, 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 recom-
mends . . . 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.
Once we get past the red herrings, the remaining question
is whether the Board may, in interpreting the statute under
which it operates and the Constitution, refuse to hear appeals
where the aliens have done what is reasonably necessary,
using the carriers the Board recommends, to assure that their
appeals have been filed on time, and through no fault of their
own, the papers are stamped in late. In my view, the principle
of constitutional avoidance14 requires that the statute and regu-
11
Board of Immigration Appeals Practice Manual, http://
www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm
12
BIA Prac. Man. § 3.1(b).
13
406 F.3d 611, 613 (9th Cir. 2005).
14
See Public Citizen v. United States Department of Justice, 491 U.S.
440, 466 (1989) (“It has long been an axiom of statutory interpretation that
where an otherwise acceptable construction of a statute would raise seri-
ous constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the intent of
Congress.”) (quotation omitted).
TURCIOS v. HOLDER 14009
lation be construed if possible to require that such notices of
appeal be deemed timely. In the absence of such a construc-
tion, the Board’s rigid position denies aliens due process of
law.
As the majority concedes, we held in Oh v. Gonzales15 that
the time limit for appeal to the BIA was subject to discretion-
ary 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 because 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
15
406 F.3d 611 (9th Cir. 2005).
16
421 F.3d 105, 111 (2d Cir. 2005). The Eighth Circuit has now upheld
the Board’s construction against a due process challenge. Liadov v.
Mukasey, 518 F.3d 1003, 1012 (8th Cir. 2008). Other circuits have as well,
but in decisions predating the Supreme Court’s clarification that non-
statutory time limits are not jurisdictional. Bowles v. Russell, 551 U.S. 205(2007); see Liadov, 518 F.3d at 1008-09 & n.4; Khan v. U.S. DOJ, 494
F.3d 255, 258-59 & n.4 (2d Cir. 2007) (concluding in light of Bowles that
the regulatory time limit was not jurisdictional).
17
Zhong Guang Sun, 421 F.3d at 111.
14010 TURCIOS v. HOLDER
The agency’s interpretation conflicts with the Supreme
Court’s interpretation in Houston v. Lack.18 Even though fed-
eral 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 rea-
son is that they “ha[ve] done all that could reasonably be
expected” to file on time.19 Substituting “aliens” for “prison-
ers” 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 processing of their notices of
appeal and to ensure that the [clerk] receives and
stamps their notices of appeal before the 30-day
deadline. Unlike other litigants, [aliens] cannot per-
sonally travel to [Falls Church, VA] to see that the
notice is stamped “filed” or to establish the date on
which the [board] received the notice. . . . No matter
how far in advance the [aliens] delivers his notice to
[the mailing service], he can never be sure that it
will ultimately get stamped “filed” on time.20
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
18
487 U.S. 266 (1988).
19
Id. at 270.
20
487 U.S. at 270-71 (emphasis in original).
21
34 F.3d 820 (9th Cir. 1994).
22
34 F.3d at 823.
TURCIOS v. HOLDER 14011
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 Gonzales-Julio, fifteen years ago, we noted that
the BIA could obviate much of the problems reasonable
accommodation could cause by allowing filing within a rea-
sonable distance of the alien’s residence instead of limiting it
to Falls Church, Virginia. Now, fifteen years later, the gov-
ernment’s justification for requiring physical filing in Falls
Church has become technologically obsolete, and the practi-
cality 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 dead-
line 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 unsat-
isfactory 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 some-
thing on his desk by 9:00 A.M. Monday without fail, and
23
455 U.S. 422 (1982).
24
Gonzalez-Julio, 34 F.3d at 823 (quoting Logan, 455 U.S. at 437).
25
Liadov, 23 I. & N. Dec. at 992.
14012 TURCIOS v. HOLDER
whatever expenses are necessary to accomplish that will be
borne. The record in Iriguyen-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 investing the time to do so. The alien needed a few
days to raise some money, came in with enough the following
Monday, counsel got an appointment with the Immigration
Court to listen to the tapes Thursday, and drove the 45 miles
to the court. Counsel then researched the applicable law nec-
essary to formulate the notice of appeal on that day and the
next (Friday) and prepared the notice. Monday was Martin
Luther King day, so counsel drove to the post office herself
first thing in the morning Tuesday, and sent the papers
express mail for guaranteed delivery Wednesday, which is
when they were due. She did not drop the ball, the post office
did, and as is common, all thirty days were reasonably neces-
sary for the task (too short, actually—the tapes ran longer
than the time the Immigration Court had for counsel to listen
to them on Thursday before the next lawyer’s appointment).
“The fundamental requisite of due process of law is the
opportunity to be heard.”26 The interest at stake in immigra-
tion cases, as in many others, is very important. Though some
are frivolous, some are an alien’s only chance to avoid unjus-
tified destruction of his family or even torture and death in
some benighted country. Due process of law requires that the
government refrain from 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
26
Grannis v. Ordean, 234 U.S. 385, 395 (1914)
TURCIOS v. HOLDER 14013
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 pretends the
internet does not exist when it comes to receiving papers as
opposed to distributing them.