Arturo Barrientos v. Loretta E. Lynch , 829 F.3d 1064 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTURO ALEXANDER BARRIENTOS, No. 14-73178
Petitioner,
Agency No.
v. A206-548-254
LORETTA E. LYNCH, Attorney
General, ORDER
Respondent.
Filed July 19, 2016
Before: Jerome Farris, Diarmuid F. O’Scannlain,
and Morgan Christen, Circuit Judges.
2 BARRIENTOS V. LYNCH
SUMMARY*
Immigration
The panel granted Arturo Alexander Barrientos’s motion
asking the court to exercise its discretion to consider new
evidence not filed with his petition for review which showed
that the petition was timely filed because it complied with the
conditions of the “prison mailbox” rule, Fed. R. App. P.
25(a)(2)(C).
The panel held that under Rule 25(a)(2)(C) this court has
discretion to refuse to consider, or to give less weight to, an
inmate’s declaration or notarized statement submitted after
the inmate’s legal filing. The panel granted Barrientos’s
motion to submit the new evidence, exercised its discretion to
consider his affidavit and the prison’s outgoing mail log, and
concluded that his petition for review was timely filed.
The panel held that it thus had jurisdiction over the
petition for review under 8 U.S.C. § 1252, and resolved the
merits in a memorandum disposition filed concurrently with
this order.
COUNSEL
Nicholas Smith (argued) and Hain-Whei Hsueh, Certified
Law Students; Stephen A. Tollafield, Supervising Counsel;
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BARRIENTOS V. LYNCH 3
Gary A. Watt, Supervising Counsel; Hastings Appellate
Project, San Francisco, California; for Petitioner.
Manuel A. Palau (argued), Trial Attorney; Terri J. Scadron,
Assistant Director; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
ORDER
We must determine whether we have jurisdiction over a
petition for review of a decision of the Board of Immigration
Appeals that our clerk’s office received five days after the
deadline for filing.
I
Arturo Alexander Barrientos, a native and citizen of El
Salvador, petitions for review of the Board of Immigration
Appeals’ decision affirming the immigration judge’s denial
of withholding of removal and protection under the
Convention Against Torture.
A
Under 8 U.S.C. § 1252(b)(1), the “petition for review
must be filed not later than 30 days after the date of the final
order of removal.” This deadline is “mandatory and
jurisdictional.” Abdisalan v. Holder, 774 F.3d 517, 521 (9th
Cir. 2014) (en banc) (quoting Stone v. INS, 514 U.S. 386, 405
(1995)). The burden is on Barrientos to establish jurisdiction,
4 BARRIENTOS V. LYNCH
as he is “the party invoking jurisdiction.” Haroutunian v. INS,
87 F.3d 374, 376 (9th Cir. 1996).
As a general matter, a filing in the court of appeals “is not
timely unless the clerk receives the papers within the time
fixed for filing.” Fed. R. App. P. 25(a)(2)(A) (emphasis
added); see also Fed. R. App. P. 25(a)(2)(B) (treating briefs
and appendices as timely filed if mailed by the required date).
“[W]hat is most plain about the purpose of the word
‘receives’ is that it rejects a mailbox rule for petitions for
review.” Sheviakov v. INS, 237 F.3d 1144, 1147 (9th Cir.
2001). However, a mailbox rule exists for confined inmates:
A paper filed by an inmate confined in an
institution is timely if deposited in the
institution’s internal mailing system on or
before the last day for filing. If an institution
has a system designed for legal mail, the
inmate must use that system to receive the
benefit of this rule. Timely filing may be
shown by a declaration in compliance with
28 U.S.C. § 1746 or by a notarized statement,
either of which must set forth the date of
deposit and state that first-class postage has
been prepaid.
Fed. R. App. P. 25(a)(2)(C). This rule accompanied Rule
4(c), which addresses filing of a notice of appeal in the
district court, and extended the holding in Houston v. Lack,
487 U.S. 266 (1988), “to all papers filed in the courts of
appeals by persons confined in institutions.” See Fed. R.
App. P. 25(a), advisory committee’s note to 1993
amendment.
BARRIENTOS V. LYNCH 5
B
Here, the final order of removal is the decision of the
Board of Immigration Appeals, which is dated September 9,
2014. The deadline to file was therefore October 9, 2014.
The petition for review, although dated October 7, 2014, was
not received by the court until October 14, 2014, which was
five days past the deadline. As a result, the petition would
only be timely filed, and we would only have jurisdiction, if
Barrientos can take advantage of the “prison mailbox” rule.
Barrientos was detained by immigration authorities at the
Northwest Detention Center in Tacoma, Washington, when
he filed his petition for review, so he is eligible for the
benefits of Rule 25(a)(2)(C) if he complied with its
requirements. To comply with such requirements, an inmate
must deposit a paper in the institution’s internal mailing
system on or before the last day for filing and must use the
institution’s system for legal mail, if it has one. See Fed. R.
App. P. 25(a)(2)(C). In addition, the inmate must direct that
the paper be sent to the court. See Houston, 487 U.S. at 273(“[D]elivery of a notice of appeal to prison authorities would
not under any theory constitute a ‘filing’ unless the notice
were delivered for forwarding to the . . . court.”).
In this case, Barrientos did not include with his petition a
declaration or notarized statement as described in Rule
25(a)(2)(C). Moreover, he did not state whether the
institution in which he was detained has a system designed
for legal mail or whether he used that system to mail his
petition to our clerk’s office. As a result, Barrientos’s initial
filings failed to demonstrate that he had complied with the
requirements of Rule 25(a)(2)(C), and his petition might have
been untimely. Because we lack jurisdiction over an
6 BARRIENTOS V. LYNCH
untimely petition, we raised this issue sua sponte and ordered
supplemental briefing from the parties.
C
With Barrientos’s supplemental brief, he has submitted a
motion requesting permission to file new evidence that he did
comply with the conditions of Rule 25(a)(2)(C). He
submitted an affidavit in which he declares that he is
detained; that his detention center has one outgoing mail
receptacle for all mail, including legal mail; that he deposited
his petition for review in the outgoing mail receptacle on
October 7, 2014; and that he included first-class postage
prepaid.
II
Next, we must determine whether to consider and whether
to credit the newly filed evidence of compliance.
A
Although Rule 25(a)(2)(C) states that timely filing may be
shown with a declaration or notarized statement,1 it does not
specify when an inmate must submit such document. The
Eighth Circuit considered this issue in a case regarding Rule
1
As a general matter, we cannot consider extra-record evidence. We
must limit our review of the merits of Barrientos’s petition to “the
administrative record on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A). However, we may consider evidence, “not in order to
supplement the administrative record on the merits, but rather to determine
whether petitioners can satisfy a prerequisite to this court’s jurisdiction.”
Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528
(9th Cir. 1997).
BARRIENTOS V. LYNCH 7
4(c), which mirrors the text of Rule 25(a)(2)(C). See Grady
v. United States, 269 F.3d 913, 917–18 (8th Cir. 2001). In
Grady, the court considered the text of Rule 4(c), which does
not expressly require simultaneous filing. Id. at 917. It then
contrasted Rule 4(c) with Supreme Court Rule 29.2, which
does explicitly mandate that the declaration or notarized
statement accompany the inmate’s legal filing. Id. at 917–18.
The Eighth Circuit explained that such contrast was
intentional. The advisory committee had considered and
“explicitly rejected [Supreme Court Rule 29.2’s] requirement
that a prisoner’s affidavit accompany his notice of appeal.”
Id. at 918. Thus, the Eighth Circuit concluded that Rule 4(c)
“does not require a prisoner to file an affidavit accompanying,
or attached to, his motion or notice of appeal.” Id. But, it
cautioned:
By determining that a prisoner’s affidavit
need not accompany his legal filing, we do
not suggest that a prisoner may needlessly
delay proceedings without penalty. In the
appropriate case, a district court may refuse to
consider a prisoner’s Rule 4(c) affidavit due
to a lengthy and unwarranted delay in
submission. Or, if a court elects to consider a
prisoner’s greatly-delayed affidavit, the court
may well decide that it deserves less weight
than other evidence in the record. An
affidavit filed long after the events in question
have occurred tends to be less trustworthy
than a promptly-recorded statement because
the passage of time dulls memories.
8 BARRIENTOS V. LYNCH
Id. Therefore, the court has discretion to reject or to give less
weight to a declaration or affidavit that does not accompany
the inmate’s legal filing.
We are persuaded by the Eighth Circuit’s analysis and
apply its holding in Grady to inmate filings in the court of
appeals. Under Rule 25(a)(2)(C), when a declaration or
notarized statement is submitted after the inmate’s legal
filing, we have discretion to refuse to consider, or to give less
weight to, such declaration or statement.2
B
Here, the government did not oppose Barrientos’s motion
to submit his new affidavit. Moreover, it conceded at oral
argument that, with the new affidavit, the petition was timely
filed. After oral argument, Barrientos submitted a copy of the
outgoing mail log from the Northwest Detention Center,
which shows that the detention center received mail
addressed to our court from Barrientos on October 8, 2014.3
Given this corroborating evidence and the government’s
concession, we (1) grant Barrientos’s Motion To Supplement
2
Our conclusion aligns with proposed amendments to Rules 4(c) and
25(a)(2)(C)—which are set to take effect December 1, 2016, absent
intervention by Congress. Under such amendments, a contemporaneously
filed affidavit is sufficient, but not necessary, and a non-contemporaneous
affidavit may be considered by the court of appeals in its discretion. See
Amendments to the Federal Rules of Appellate Procedure 46–49 (U.S.
Apr. 28, 2016) (to be codified at Fed. R. App. P. 4(c), 25(a)(2)(C)),
http://www.uscourts.gov/file/document/2016-04-28-final-package-
congress.
3
We construe Barrientos’s letter submitting the mail log as a motion to
supplement the record, which we grant.
BARRIENTOS V. LYNCH 9
Court’s Docket, ECF No. 56; (2) exercise our discretion to
consider the affidavit and mail log; and (3) conclude that
Barrientos’s petition for review was timely filed pursuant to
Rule 25(a)(2)(C).
III
As a result, we have jurisdiction under 8 U.S.C. § 1252.
The merits of the petition are resolved in a memorandum
disposition filed concurrently with this order.
MOTION GRANTED.