Irigoyen-Briones v. Holder , 582 F.3d 1062 ( 2009 )

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 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 headquarters the day after the due date. The merits are not at issue before us, just lateness. The issue of lateness affects innumerable 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 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 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 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 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 “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 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 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 Procedure expressly address electronic filing.⁸ Doubtless electronic 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 airplanes, 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” 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 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 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 “[bjecause 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 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.

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 assiire 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 avoidance ¹⁴ requires that the statute and regulation be construed if possible to require that such notices of appeal be deemed timely. In the absence of such a construction, 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 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 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

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 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 personally 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 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 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 necessary 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 necessary 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 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 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 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.

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.

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).

9 . 26 U.S.C.A. § 7502(a).

10 . Fed.R.Civ.P. 5(b)(C).

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, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) ("It has long been an axiom of statutory interpretation that where an otherwise acceptable construction of a statute would raise serious 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).

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 nonstatutory time limits are not jurisdictional. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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.

18 . 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

19 . Id. at 270, 108 S.Ct. 2379.

20 . 487 U.S. at 270-71, 108 S.Ct. 2379 (emphasis in original).

21 . 34 F.3d 820 (9th Cir.1994).

22 . 34 F.3d at 823.

23 . 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

24 . Gonzalez-Julio, 34 F.3d at 823 (quoting Logan, 455 U.S. at 437, 102 S.Ct. 1148).

25 . Liadov, 23 I. & N. Dec. at 992.

26 . Grannis v. Ordean, 234 U.S. 385, 395, 34 S.Ct. 779, 58 L.Ed. 1363 (1914)