Irigoyen-Briones v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO IRIGOYEN-BRIONES, aka 
Jose Vega-Ramirez,
No. 07-71806
Petitioner,
v.  Agency No.
A096-384-113
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 Milan D. Smith, Jr.;
Dissent by Judge Kleinfeld
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
13971
13974 IRIGOYEN-BRIONES v. HOLDER
COUNSEL
Charles E. Nichol, Law Offices of Charles E. Nichol, San
Francisco, California, for the petitioner.
Charles Canter & Ronald E. LeFevre, U.S. Department of
Justice, Washington, DC, for the respondent.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
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
IRIGOYEN-BRIONES v. HOLDER 13975
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 subse-
quent 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 8 C.F.R. § 1003.38(b) is
ambiguous regarding the BIA’s jurisdiction to consider late
filings, and because the BIA’s interpretation in Liadov is not
plainly erroneous or inconsistent with the language of the reg-
ulation, we hold that Supreme Court precedent requires us to
give deference to the BIA’s construction of 8 C.F.R.
§ 1003.38(b), and we affirm the BIA’s denial of Irigoyen-
Briones’ motion to reconsider its rejection of his appeal of the
IJ’s decision as being untimely filed.
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 Immigration 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
8 U.S.C. § 1182(a)(6)(A)(i).
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 can-
13976 IRIGOYEN-BRIONES v. HOLDER
cellation of removal or, in the alternative, for voluntary depar-
ture. The IJ denied these requests in December 2006.
B. BIA Proceedings
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 8 C.F.R.
§ 1003.38(b), the NOA was due one day earlier, on January
17, 2007. The BIA observed that in light of the jurisdictional
dismissal, if either party “wish[ed] to file a motion to recon-
sider challenging the finding that the appeal was untimely, [it
had to] file [the] motion with the Board. However, if [either
party was] challenging any other finding or seek[ing] to
reopen [the] case, [it had to] file [the] motion with the Immi-
gration Court.”
2. Motion for Reconsideration
In March 2007, Irigoyen-Briones filed a motion for recon-
sideration 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
IRIGOYEN-BRIONES v. HOLDER 13977
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 Ser-
vice’s (USPS) Express Mail delivery service, which guaran-
teed 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 pro-
vide 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 dead-
line, 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 Immigra-
tion Judge must be filed at the Board no later than
13978 IRIGOYEN-BRIONES v. HOLDER
30 calendar days after the Immigration Judge renders
an oral decision or mails a written 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 certi-
fication. See [In re] Liadov.
This petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We
review the BIA’s denial of a motion to reconsider for abuse
of discretion, “uphold[ing] the Board’s ruling ‘[u]nless [it]
acted arbitrarily, irrationally, or contrary to law.’ ” Lara-
Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (quoting
Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003)) (alterations
in original). “[T]he BIA’s determination of purely legal ques-
tions, including the BIA’s interpretation of the Immigration
and Nationality Act,” is reviewed de novo. Lopez v. INS, 184
F.3d 1097, 1099 (9th Cir. 1999). We review factual findings
for substantial evidence. Mejia-Paiz v. INS, 111 F.3d 720, 722
(9th Cir. 1997). “Under the substantial evidence standard,
‘administrative findings of fact are conclusive unless any rea-
sonable adjudicator would be compelled to conclude to the
contrary.’ ” Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th
Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).
DISCUSSION
Irigoyen-Briones argues that the BIA’s determination that
it lacks authority to extend an appeal filing deadline under 8
C.F.R. § 1003.38(b) contravenes this court’s decision in Oh v.
IRIGOYEN-BRIONES v. HOLDER 13979
Gonzales, 406 F.3d 611, thereby requiring remand to allow
the agency to exercise its discretion whether to accept his late-
arriving NOA as a “rare circumstance.”1
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 service’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 Feb-
ruary 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 8 C.F.R. § 1003.38(b). Id. at
613.
The Oh court disagreed with the BIA’s conclusion and
remanded. Id. at 613-14. In doing so, the court noted the
Attorney General’s argument, also advanced here, that the
BIA lacks authority to extend the time in which to file an
1
In the “Introduction” to his brief, Irigoyen-Briones states: “As with the
petitioner in Oh v. Gonzales, petitioner in the present [case] argues that
‘the BIA’s [error] in denying h[is] motion to reconsider raises both abuse
of discretion and due process arguments.’ ” (Emphasis added.) Nowhere
else in the brief, however, does Irigoyen-Briones mention a due process
claim or offer any authority or arguments in support of such a claim. As
a result, he has waived the issue. Cf. Ghahremani v. Gonzales, 498 F.3d
993, 997 (9th Cir. 2007) (“ ‘[A]n issue referred to in the appellant’s state-
ment of the case but not discussed in the body of the opening brief is
deemed waived.’ ” (quoting Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996))). Moreover, Oh “d[id] not reach [the petitioner]’s due pro-
cess arguments,” 406 F.3d at 612 n.1, and therefore does not support a due
process argument in any event.
13980 IRIGOYEN-BRIONES v. HOLDER
appeal based on Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.
1993), which held that “[t]he time limit for filing an appeal [to
the BIA] is mandatory and jurisdictional.” The Oh court dis-
tinguished this precedent, observing that “as the authority Da
Cruz cites for this proposition states, ‘[d]espite the note of
finality sounded by this principle, it is not inflexible.’ ” Oh,
406 F.3d at 613 (quoting Hernandez-Rivera v. INS, 630 F.2d
1352, 1354 (9th Cir. 1980)).2 The Oh court also found it sig-
nificant that “the BIA’s own Practice Manual . . . 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.” Id. (quoting BIA Practice Manual, Ch.
3(b), p. 28 (rev. 9/25/02)).
[1] Based on this reasoning, the Oh court held that “[t]he
BIA’s deadline is thus subject to exceptions in ‘rare circum-
stances,’ 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 propo-
sition that “[i]f a time limit is jurisdictional, it is not subject
to the defenses of waiver, equitable tolling, or equitable estop-
pel, although there may still be exceptions based on unique
circumstances” (emphasis added) (citation and internal quota-
tion marks omitted)). The court then applied this holding, stat-
ing:
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 qual-
ify her for relief from late filing as a unique or rare
2
Hernandez-Rivera relied entirely on Harris Truck Lines, Inc. v. Cherry
Meat Packers, Inc., 371 U.S. 215 (1962), and Thompson v. INS, 375 U.S.
384 (1964), both of which the Supreme Court recently overruled in Bowles
v. Russell, 127 S. Ct. 2360, 2366 (2007).
IRIGOYEN-BRIONES v. HOLDER 13981
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.’ ”3 Id. at
614.
B. In re Liadov
[2] 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 asy-
lum cases, and the authority of the Supreme Court all
3
In Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105,
109-11 (2d Cir. 2005), the Second Circuit agreed with the Oh court that
an overnight delivery service’s failure to timely deliver a NOA can consti-
tute an extraordinary circumstance excusing a petitioner’s failure to com-
ply with the thirty-day limit for filing an appeal. The petitioner in Zhong
Guang Sun placed his NOA with an overnight delivery service one day
before the deadline for filing an appeal. Id. at 106. The Second Circuit
stated that a petitioner’s use of an overnight delivery service is recognized
as a way of insuring timely delivery and “strongly suggests to us that the
failure of such an effort to achieve timely filing may well, indeed, fall
within the realm of the ‘extraordinary.’ ” Id. at 111. As a result, the Sec-
ond Circuit, like the Oh court, remanded the case for the BIA to reconsider
the issue. Id.13982 IRIGOYEN-BRIONES v. HOLDER
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 circum-
stances, the Board may certify a case to itself under 8 C.F.R.
§ 1003.1(c)[.]”4 Id.C. The BIA’s Reasonable Interpretation of Its
Regulations in Liadov is Entitled to Deference
[3] Although Irigoyen-Briones asserts that the BIA’s read-
ing of 8 C.F.R. § 1003.38(b) in Liadov is foreclosed by this
court’s conflicting construction in Oh, Supreme Court prece-
dent requires us to give deference to the BIA’s interpretation
in this instance. Under Auer v. Robbins, 519 U.S. 452 (1997),
an agency’s interpretation of its own regulation may be enti-
tled to substantial deference from a reviewing court. See Gon-
zales v. Oregon, 546 U.S. 243, 255 (2006). To determine
whether Auer deference applies, we conduct a two-step
inquiry. First, “Auer deference is warranted only when the
language of the regulation is ambiguous”; otherwise, “[t]o
defer to the agency’s position would be to permit the agency,
under the guise of interpreting a regulation, to create de facto
4
8 C.F.R. § 1003.1(c) states:
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 provi-
sions 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.
IRIGOYEN-BRIONES v. HOLDER 13983
a new regulation.” Christensen v. Harris County, 529 U.S.
576, 588 (2000). Second, if the regulation is ambiguous, then
the agency’s “interpretation of it is . . . controlling unless
plainly erroneous or inconsistent with the regulation.” Auer,
519 U.S. at 461 (citation and internal quotation marks omit-
ted). “Under this standard, we defer to the agency’s interpre-
tation of its regulation unless an “ ‘alternative reading is
compelled by the regulation’s plain language or by other indi-
cations of the [agency’s] intent at the time of the regulation’s
promulgation.’ ” Bassiri v. Xerox Corp., 463 F.3d 927, 931
(9th Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994) (emphasis added) (alteration in
original)).
[4] Applying these principles here, we hold that the plain
language of 8 C.F.R. § 1003.38(b) is ambiguous as to whether
the BIA may extend the filing deadline. The provision states,
in relevant part:
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 busi-
ness day.
8 C.F.R. § 1003.38(b). As the Oh court noted, this language
“says nothing about the BIA’s jurisdiction to consider late fil-
ings.” 406 F.3d at 613 n.4. Nor, however, does it say anything
about the BIA’s authority to review such filings in “rare cir-
cumstances.” Given the regulation’s silence on the issue, nei-
ther construction is clearly foreclosed.
[5] For the following reasons, we also hold that the BIA’s
interpretation of 8 C.F.R. § 1003.38(b) in Liadov is not
“plainly erroneous or inconsistent with the regulation.” See
13984 IRIGOYEN-BRIONES v. HOLDER
Auer, 519 U.S. at 461 (citation and internal quotation marks
omitted). First, the BIA’s interpretation conforms to the word-
ing of the relevant regulations. The word “shall” in 8 C.F.R.
§ 1003.38(b) indicates a mandatory time frame, and the rest
of the provision further indicates only one exception for
extensions: “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.” Id. At the same time, related provi-
sion 8 C.F.R. § 1003.3(c) states that “[t]he date of filing of the
Notice of Appeal . . . shall be the date the Notice is received
by the Board.” (Emphasis added.) Based on the plain lan-
guage of the regulations, therefore, the BIA in Liadov reason-
ably concluded that neither a “mailbox” rule—i.e., accepting
the mailing date as the filing date—nor a “rare circumstances”
exception for late filings, applies.
[6] 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 Man-
ual (“Practice Manual”) . . ., which also addresses
the issue of filing appeals, emphasizes the impor-
tance 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 spe-
cifically cautions that use of an overnight delivery
service does not mean that failing to meet filing
deadlines will be excused. According to § 3.1(a)(iv),
“the failure of a courier or overnight delivery service
does not excuse parties from meeting filing dead-
lines.” [Practice Manual] § 3.1(a)(iv), at 32. In addi-
tion, § 3.1(b)(iv) provides, in pertinent part, as
follows:
IRIGOYEN-BRIONES v. HOLDER 13985
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 8
C.F.R. § 1003.1(c), 23 I&N Dec. at 991, it does not compel
an alternative reading of 8 C.F.R. § 1003.38(b) or indicate
that the BIA’s interpretation is plainly erroneous.
[7] Third, the BIA’s construction sensibly conforms to the
purpose of the regulations. As noted in Liadov, “[m]eaningful
filing deadlines are as critical to the smooth and fair adminis-
tration of the Board as they are to the courts, particularly
given the extraordinary volume of appeals, motions, and other
filings that must be efficiently processed, tracked, and adjudi-
cated.” 23 I&N Dec. at 992. Indeed, in 1996, recognizing the
importance of both enforcing such deadlines and simulta-
neously allowing the parties sufficient time in which to file
appeals, the Board by regulation lengthened the period for fil-
ing administrative appeals from ten days to thirty days. Id.
(citing Executive Office for Immigration Review: Motions and
Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900,
18,908 (Apr. 29, 1996) (codified at 8 C.F.R. § 3.38(b) and
subsequently recodified at 8 C.F.R. § 1003.38(b))). The BIA
in Liadov reasonably found that “this is a fair and generous
filing period and one that the parties must take seriously,”
13986 IRIGOYEN-BRIONES v. HOLDER
observing that “[t]he filing time was not extended to simply
‘push the window’ of last-minute filings 20 days forward.” Id.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 acceptable, 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, nec-
essarily 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 (1985) (quoting United States v. Boyle, 469
U.S. 241, 249 (1985)). In addition, the Court recently clarified
that “the timely filing of a notice of appeal in a civil case is
a jurisdictional requirement,” and that “[b]ecause th[e] Court
has no authority to create equitable exceptions to jurisdic-
tional requirements, use of the ‘unique circumstances’ doc-
trine is illegitimate.” Bowles v. Russell, 551 U.S. 205, 214
(2007).
Finally, as the Eighth Circuit noted in similarly deferring to
the BIA’s interpretation in Liadov as a “permissible interpre-
IRIGOYEN-BRIONES v. HOLDER 13987
tation” of 8 C.F.R. § 1003.38(b), “[t]he BIA has declared for
more than fifty years that the regulation prescribing the time
within which an administrative appeal must be filed . . . is
mandatory and may not be extended by the BIA.” Liadov v.
Mukasey, 518 F.3d 1003, 1009 (8th Cir. 2008); see, e.g., In
re Dirphys, 3 I&N Dec. 223, 224 (BIA 1948) (“There is no
provision in the pertinent regulation . . . which gives . . . this
Board . . . power to extend time within which an appeal must
be filed.”); In re G—Z—, 5 I&N Dec. 295, 295 (BIA 1953)
(“We rule that under the applicable regulations, . . . there is
no authority to extend the time for filing an appeal.”); In re
Escobar, 18 I&N Dec. 412, 413 (BIA 1983) (acknowledging
that “failure to [timely file an appeal] results in the decision
becoming administratively final” such that the BIA “lacks
jurisdiction to hear the appeal”). Indeed, “[c]onfirming this
longstanding agency rule, the Attorney General ruled in 2002
that ‘[t]his deadline is mandatory and jurisdictional.’ ” Liadov
v. Mukasey, 518 F.3d at 1007 (quoting In re Jean, 23 I&N
Dec. 373, 378 (BIA 2002) (alterations in original)).
[8] Accordingly, because 8 C.F.R. § 1003.38(b) is ambigu-
ous regarding the BIA’s jurisdiction to consider late filings,
and because the BIA’s interpretation in Liadov is not plainly
erroneous or inconsistent with the language of the regulation,
we must give Auer deference to the BIA’s construction that
the agency lacks “authority to extend the appeal time” under
8 C.F.R. § 1003.38(b), but may “certify a case to itself” where
it presents “rare” and “exceptional” circumstances under 8
C.F.R. § 1003.1(c).5 See Liadov, 23 I&N Dec. at 993. We also
5
Irigoyen-Briones challenges only the BIA’s holding that it lacks juris-
diction to extend an appeal filing deadline under 8 C.F.R. § 1003.38(b);
he does not challenge the BIA’s discretionary decision that “[s]hort delays
in delivery are to be expected, and they do not warrant consideration of
an untimely appeal on certification” under 8 C.F.R. § 1003.1(c). As a
result, he has waived that issue on appeal. See Collins v. City of San
Diego, 841 F.2d 337, 339 (9th Cir. 1988) (noting that “[i]t is well estab-
lished in this Circuit that claims which are not addressed in the appellant’s
brief are deemed abandoned”). Moreover, even if Irigoyen-Briones had
not waived the certification issue, we lack jurisdiction to consider it under
8 U.S.C. § 1252(a)(2)(D).
13988 IRIGOYEN-BRIONES v. HOLDER
hold that, under Auer and its progeny, to the extent Oh was
grounded in the ambiguous language of 8 C.F.R.
§ 1003.38(b), the BIA’s reasonable discretionary interpreta-
tion of 8 C.F.R. § 1003.38(b) in Liadov has “effectively over-
ruled” the prior, contrary holding in Oh. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (stating
that although a three-judge panel is usually bound by the
opinion of a prior three-judge panel, this court has recognized
an exception where “the reasoning or theory of [this court’s]
prior circuit authority is clearly irreconcilable with the reason-
ing or theory of intervening higher authority,” such that the
prior three-judge panel’s decision has been “effectively over-
ruled”); cf. Gonzalez v. Dep’t of Homeland Sec., 508 F.3d
1227, 1236 n.7 (9th Cir. 2007) (citing Miller, 335 F.3d at 893,
for the proposition that “[t]he Supreme Court’s opinions in
Chevron [U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984),] and
[Nat’l Cable & Telecomm. Ass’n v.] Brand X [Internet Servs.,
545 U.S. 967 (2005),] together hold that to the extent that
[Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004)]
was grounded in the ambiguous language of [a provision of
the Immigration and Nationality Act], the BIA’s reasonable
discretionary construction of the statute in [In re Torres-
Garcia, 23 I&N Dec. 866 (BIA 2006)] has ‘effectively over-
ruled’ contrary holdings in [Perez-Gonzalez]”).
CONCLUSION
[9] We conclude that, based on Supreme Court precedent,
we must defer to the BIA’s reasonable interpretation in Lia-
dov 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 Irigoyen-Briones’ motion to
reconsider its rejection of his appeal of the IJ’s decision as
being untimely filed.
AFFIRMED.
IRIGOYEN-BRIONES v. HOLDER 13989
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. I am filing the same dissent in
Irigoyen-Briones v. Holder, No. 07-71806 and Turcios v.
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
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.
13990 IRIGOYEN-BRIONES v. HOLDER
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-
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-
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.
IRIGOYEN-BRIONES v. HOLDER 13991
dure 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 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.
8
Fed. R. Civ. P. 5(d)(3).
9
26 U.S.C.A. § 7502(a).
10
Fed. R. Civ. P. 5(b)(C).
13992 IRIGOYEN-BRIONES v. HOLDER
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 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
IRIGOYEN-BRIONES v. HOLDER 13993
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
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).
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).
13994 IRIGOYEN-BRIONES v. HOLDER
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 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
17
Zhong Guang Sun, 421 F.3d at 111.
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).
IRIGOYEN-BRIONES v. HOLDER 13995
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 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.
22
34 F.3d at 823.
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.
13996 IRIGOYEN-BRIONES v. HOLDER
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
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
26
Grannis v. Ordean, 234 U.S. 385, 395 (1914)
IRIGOYEN-BRIONES v. HOLDER 13997
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.