In re Liadov, Interim Decision No. 3540.
| Citation | 23 I&N Dec. 990 |
| Decision Date | 12 September 2006 |
| Docket Number | File A79 562 410.,File A72 414 727.,File A72 414 728.,Interim Decision No. 3540.,File A72 414 726. |
| Court | U.S. DOJ Board of Immigration Appeals |
| Parties | In re Vladimir LIADOV et al., Respondents. |
This case was previously before us on February 18, 2005, when we dismissed as untimely the respondents' appeal from the Immigration Judge's January 13, 2004, decision. On May 10, 2005, we denied the respondents' motion to reconsider, finding that the late filing of their appeal was not excused by the fact that the overnight delivery service they used did not timely deliver their appeal, as guaranteed.
The matter is now before us pursuant to the September 28, 2005, order of the United States Court of Appeals for the Eighth Circuit. The parties in court agreed to remand the case to us for further consideration in light of the decisions in Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005), and Zhong Guang Sun v. U.S. Dep't of Justice, 421 F.3d 105 (2d Cir. 2005). In Oh v. Gonzales, supra, the Ninth Circuit held that we abused our discretion in finding that we did not have authority to extend the time in which an alien must file his Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) ("Notice of Appeal"). In that case, the Immigration Judge issued his decision on January 10, 2003, triggering the 30-day deadline, and the alien mailed her Notice of Appeal by overnight mail on February 4, 2003.
In Sun v. U.S. Dep't of Justice, supra, the Second Circuit agreed with the Ninth Circuit that an overnight delivery service's failure to timely deliver a Notice of Appeal can constitute an extraordinary circumstance excusing an alien's failure to comply with the 30-day time limit for filing an appeal. The alien in that case placed his Notice of Appeal with an overnight delivery service 1 day before the deadline for filing the appeal. The court stated that an alien'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. The court did not find that such an extraordinary circumstance existed in that case, but rather remanded the record for us to reconsider the issue.
In the case now before us, the respondents had until February 12, 2004, to file their Notice of Appeal, and it was not placed in overnight mail until February 10, 2004, at the earliest. The Federal Express tracking slip indicates that it was sent for "Priority Overnight" delivery on February 11, 2004, guaranteed for delivery on February 12, the filing deadline. It was not delivered until February 13, 2004.
The regulations provide that a Notice of Appeal "shall be filed directly with the Board of Immigration Appeals within 30 calendar days" after an Immigration Judge renders a decision. 8 C.F.R. § 1003.38(b) (2006). Furthermore, in cases involving applications for asylum, the time for filing administrative appeals is also set by statute. Section 208(d)(5)(A)(iv) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(5)(A)(iv) (2000), provides that "any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under section 240, whichever is later."
The Board of Immigration Appeals Practice Manual ("Practice Manual"), http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm, which also addresses the issue of filing appeals, emphasizes the importance 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 id. § 3.1(a)(i), at 31 (July 30, 2004). As noted by the Ninth Circuit in Oh v. Gonzales, supra, at 613, the Practice Manual encourages parties to use courier and overnight delivery services to ensure timely filing, but it leaves open the possibility that delivery delays could, in "rare circumstances," excuse untimely filings. Practice Manual, supra, § 3.1(b)(iv), at 34; see also Zhong Guang Sun v. U.S. Dep't of Justice, supra, at 111. However, the Practice Manual also states that "the Board strongly recommends that parties file as far in advance of the deadline as possible." Practice Manual, supra, § 3.1(b), at 33.
Moreover, in two places the Practice Manual specifically 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 deadlines." Id. § 3.1(a)(iv), at 32. In addition, § 3.1(b)(iv) provides, in pertinent part, as follows:
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.
Thus, although a delivery delay might excuse untimeliness in a rare case, such as where the delivery was very late or caused by "rare" circumstances, the Practice Manual makes clear that, in general, such delays do not affect deadlines. The parties cannot point to such delays to excuse untimely filings, but should instead anticipate the possibility that the guaranteed delivery might fail. In a case such as the one...
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