Irigoyen-Briones v. Holder
| Decision Date | 29 September 2009 |
| Docket Number | No. 07-71806.,07-71806. |
| Citation | 582 F.3d 1062 |
| Parties | Guillermo IRIGOYEN-BRIONES, aka Jose Vega-Ramirez, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles E. Nichol, Law Offices of Charles E. Nichol, San Francisco, CA, for the petitioner.
Charles Canter & Ronald E. LeFevre, U.S. Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-384-113.
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.
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 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 subsequent 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 regulation, 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.
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 cancellation of removal or, in the alternative, for voluntary departure. The IJ denied these requests in December 2006.
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
In March 2007, Irigoyen-Briones filed a motion for reconsideration 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 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 Service's (USPS) Express Mail delivery service, which guaranteed 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 provide 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 deadline, 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 Immigration Judge must be filed at the Board no later than 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 certification. See [In re] Liadov.
This petition for review followed.
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 questions, 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 reasonable 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)).
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. 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
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 February 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 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 distinguished 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...
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Irigoyen–briones v. Eric H. Holder Jr.
...Sixth Circuit, sitting by designation. 1. We previously decided this case in an opinion filed September 29, 2009. Irigoyen–Briones v. Holder, 582 F.3d 1062 (9th Cir.2009). A petition for rehearing en banc, and a call for rehearing en banc and exchange of memoranda within the court, led us t......
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Irigoyen-Briones v. Holder, No. 07-71806 (9th Cir. 6/10/2010)
...Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges. ORDER The opinion filed on September 29, 2009, and appearing at 582 F.3d 1062 (9th Cir. 2009), is withdrawn. A new opinion will be filed at a later The petition for rehearing and petition for rehearing en banc are denied as moot. ......