Oh v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYU O. OH, 
Petitioner, No. 03-73131
v.
 Agency No.
A39-765-209
ALBERTO GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 16, 2005—San Francisco, California
Filed May 2, 2005
Before: Dorothy W. Nelson, William A. Fletcher and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4777
OH v. GONZALES 4779
COUNSEL
Alex C. Park, Santa Clara, California, for the petitioner.
Mary Jane Candaux, Anthony W. Norwood, United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for the respondent.
OPINION
FISHER, Circuit Judge:
Petitioner Kyu Oh (“Oh”) appeals the Board of Immigra-
tion Appeals’ (“BIA”) denial of her motion to reconsider its
rejection of her notice of appeal of an Immigration Judge’s
(“IJ”) decision as being untimely filed. Oh sought to excuse
the late filing as having been caused by an overnight delivery
service’s failure to deliver the notice until well past the BIA’s
30-day deadline. Noting that in using an overnight delivery
service she was following the very procedure the BIA’s own
Practice Manual recommended, Oh contends that the BIA
4780 OH v. GONZALES
abused its discretion and denied her due process in refusing
to consider her reasonable excuse.1 Because the BIA denied
Oh’s motion to reconsider on the erroneous assumption that
it had no authority to extend the time for appeal, we grant
Oh’s petition and remand to the BIA to determine whether her
circumstances justify excusing her late filing.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We
review the BIA’s denial of a motion to reconsider for abuse
of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972
(9th Cir. 2004). “ ‘An abuse of discretion will be found when
the denial was arbitrary, irrational or contrary to law.’ ”
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000)
(quoting Watkins v. INS, 63 F.3d 844, 847 (9th Cir. 1995)).
Oh, a native and citizen of South Korea, became a lawful
permanent resident of the United States when she married a
U.S. citizen in 1985; she was divorced in 1989. In 2001, after
a six-week stay in Korea, Oh tried to re-enter the United
States. She was detained by immigration officials, and admit-
ted she had misdemeanor convictions for prostitution and pos-
session of a controlled substance; she was also arrested on an
outstanding warrant for prostitution.2
The former Immigration and Naturalization Service
charged her with being removable; an IJ found her removable
on January 10, 2003. That decision triggered a 30-day dead-
line for Oh to file a notice of appeal with the BIA. See 8
C.F.R. §§ 1003.38(b), (c). On January 24, Oh and her counsel
1
We construe Oh’s arguments that the BIA erred in denying her motion
to reconsider as raising both abuse of discretion and due process argu-
ments. We do not believe that the government has been misled. See Eberle
v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (holding that a court
may “consider [an] issue [if] the appellee has not been misled and the
issue has been fully explored”) (citation and internal quotation omitted).
Because we hold that the BIA abused its discretion, we do not reach Oh’s
due process arguments.
2
She was again convicted of prostitution in February 2002.
OH v. GONZALES 4781
completed the necessary paperwork, and on February 4 her
counsel mailed the notice of appeal along with all paperwork
and fees by overnight mail to the BIA for delivery by noon,
February 5. The carrier, Airborne Express, failed to deliver
the package on time; the BIA did not receive it until February
24, 2003.3
On May 30, 2003, the BIA issued a per curiam decision
rejecting Oh’s appeal as untimely. On June 25, Oh filed a
motion asking the BIA to reconsider, and furnished proof that
she had completed and mailed her notice of appeal well
before the deadline. Accepting Oh’s evidence that she had in
fact deposited her properly addressed Airborne Express enve-
lope into Airborne Express’ pick-up box on February 4 for
next day delivery to the BIA, the BIA nonetheless denied
Oh’s motion to reconsider. The BIA ruled that the “date
stamp” placed on all filings when they are received by the
BIA “is controlling in the computation of timely filing,” and
that “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).”4
The BIA also stated without elaboration that Oh’s “case [was
not] appropriate for exercise of the Board’s power in excep-
tional circumstances sua sponte to reconsider a decision.”
[1] In support of the BIA’s assertion that it lacked authority
to accept Oh’s late-filed appeal, the government relies on Da
Cruz v. INS, 4 F.3d 721, 722 (9th Cir. 1993), which states that
“[t]he time limit for filing an appeal [to the BIA] is mandatory
and jurisdictional.” However, as the authority Da Cruz cites
for this proposition states, “[d]espite the note of finality
sounded by this principle, it is not inflexible.” Hernandez-
Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir. 1980). Signifi-
cantly, the BIA’s own Practice Manual recognizes as much.
The Practice Manual, the BIA’s official guidance on filing
3
Respondent does not dispute these facts.
4
8 C.F.R. § 1003.38 says nothing about the BIA’s jurisdiction to con-
sider late filings.
4782 OH v. GONZALES
procedures and requirements, explicitly encourages aliens to
use overnight delivery services to ensure prompt delivery.
Although warning that “delivery delays do not affect existing
deadlines, nor does the Board excuse untimeliness due to such
delays,” the Manual itself expressly acknowledges that in
“rare circumstances” the BIA may excuse late filings. See
BIA Practice Manual, Ch. 3(b), p. 28 (rev. 9/25/02).
[2] The BIA’s deadline is thus subject to exceptions in
“rare circumstances,” even when the notice of appeal does not
actually arrive before the deadline. See Socop-Gonzalez v.
INS, 272 F.3d 1176, 1188 (9th Cir. 2001) (en banc) (“If 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) (internal citation and quotation omitted);
Shamsi v. INS, 998 F.2d 761, 763 (9th Cir. 1993) (holding that
an exception to jurisdictional bar existed when petitioner was
confused by ambiguous regulations).
[3] 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 fil-
ing as a unique or rare circumstance — or at least to be con-
sidered 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 rely-
ing 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. See Ontiveros-Lopez, 213 F.3d at
1124 (“An abuse of discretion will be found when the denial
was arbitrary, irrational or contrary to law.”) (citation and
internal quotation omitted).
[4] The BIA’s denial of Oh’s reconsideration motion
appears to have been predicated entirely on its misconstruc-
OH v. GONZALES 4783
tion of the jurisdictional nature of its own filing deadline. We
therefore cannot rely on the BIA’s cryptic statement declining
to exercise its “power in exceptional circumstances sua sponte
to reconsider a decision,” since its legal error appears to have
constrained its understanding of its discretionary authority as
well. Having explained the nature of the BIA’s legal error, we
remand to allow the BIA to exercise its discretion as to
whether to accept Oh’s late-arriving notice of appeal as a
“rare circumstance.” See INS v. Ventura, 537 U.S. 12, 16-17
(2002) (holding that when agency has not reached an issue,
the proper course is to remand to the agency in the first
instance to address it). The panel retains jurisdiction over this
matter.
PETITION GRANTED AND REMANDED.