Irigoyen–briones v. Eric H. Holder Jr.

• Decision Date: 31 May 2011
• Docket Number: No. 07–71806.,07–71806.
• Citation: 644 F.3d 943
• 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

644 F.3d 943

11 Cal. Daily Op. Serv. 6475

2011 Daily Journal D.A.R. 7814

Guillermo IRIGOYEN–BRIONES, aka Jose Vega–Ramirez, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07–71806.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2009.Filed May 31, 2011.

Charles E. Nichol, San Francisco, California, for the petitioner.Charles E. Canter, (argued), United States Department of Justice, Washington, D.C., and Luis E. Perez, (briefed), United States Department of Justice, 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,^* ANDREW J. KLEINFELD, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

KLEINFELD, Circuit Judge:

We address ¹ whether the thirty-day deadline for filing a notice of appeal with the Board of Immigration Appeals (BIA) is jurisdictional.

I. Facts

Guillermo Irigoyen–Briones, a native and citizen of Mexico, entered the United States illegally in 1991. In 2003, United States Immigration and Customs Enforcement commenced removal proceedings against him.² Irigoyen–Briones appeared pro se at a hearing before an Immigration Judge (IJ) on December 18, 2006, and conceded removability, but he sought cancellation of removal or alternatively voluntary departure.³ The IJ decided against him on both issues. He had thirty days to appeal.

Irigoyen–Briones went to a lawyer's office shortly after the new year, on Thursday, January 4. The lawyer could not do anything without listening to the Immigration Court's tapes (not yet transcribed, of course), and she needed a retainer before she invested the time that it would take. Irigoyen–Briones needed a few days to raise the money, and came in with enough to retain her the following Monday, January 8, 2007. His lawyer promptly made an appointment with the Immigration Court so that she could listen to the tapes, for Thursday morning, January 11, 2007. That morning, she drove the 45 miles to Immigration Court and listened to what she could (the appointment did not allow her enough time to listen to the tapes in their entirety). She then performed the necessary legal research that Thursday and Friday, January 11 and 12, and prepared the notice of appeal. Monday January 15 was Martin Luther King Jr. day, so the post office was closed. Counsel drove to the post office herself first thing Tuesday morning, January 16, and sent the papers express mail for guaranteed delivery the day that they were due, Wednesday, January 17. ⁴

Though the post office had never let her down on express mail service before, it did this time. The papers arrived at the BIA's Falls Church, Virginia office (the only place where they may be filed) a day late. The post office sent her a form so that she could get back the money she had paid for guaranteed next-day delivery, but that was not much of a remedy for her client getting deported. 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 “guarantee” of next day delivery assures no more than a refund of the extra fee the post office charges if they break their promise.

The BIA dismissed the appeal as untimely because the papers were filed a day late. Irigoyen–Briones's lawyer filed a motion for reconsideration or, in the alternative, for the BIA to certify the appeal to itself. She 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, 613 (9th Cir.2005), and Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105, 111 (2d Cir.2005). The BIA denied the motion to reconsider.

The BIA held that the thirty-day deadline was jurisdictional, so “the Board 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), following its own 2006 decision in Matter of Liadov.⁵ Irigoyen–Briones appeals, arguing that the BIA's determination that it does not have jurisdiction to accept an appeal filed one day late is incorrect. We agree.

II. Analysis

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), which allows us to review questions of law. Jurisdiction is a legal question.

A. Oh and Liadov

This is the odd case where an agency whose decisions we review has overruled one of our decisions. We must decide whether the proper level of deference to the agency's interpretation of the law requires that we accept its legal view, and also whether Supreme Court decisions since, distinguishing jurisdictional from claim-processing rules, require a new interpretation.

We start with the statute and regulation. The statute provides that “the Attorney General shall issue regulations with respect to ... the time period for the filing of administrative appeals in deportation proceedings....” ⁶ The regulation issued pursuant to this statute says the notice of appeal “shall be filed directly with the Board of Immigration Appeals within 30 calendar days.” ⁷ The Executive Office of Immigration Review provides in an online publication that the only way to accomplish this filing is by physical delivery to the BIA's Falls Church, Virginia office.⁸ Neither the statute nor the implementing regulation uses the word “jurisdiction.”

We had occasion to construe the filing requirement in a case like this one in Oh v. Gonzales.⁹ In Oh, as here, the petitioner delivered her papers for overnight delivery so that they should have arrived in Falls Church on time, but the express delivery service erred and delivered her papers past the deadline. We held that the BIA's position, that it had no authority to accept the late filing because the deadline was jurisdictional, was erroneous as a matter of law. We noted that the regulation upon which the BIA relied there (and here), 8 C.F.R. § 1003.38, did not say that it was jurisdictional. Because the BIA, despite its “jurisdictional” argument, claimed authority to excuse late filings in “rare circumstances,” and our prior authorities likewise had held that in “unique circumstances” lateness was excusable, the BIA's denial of Oh's motion for reconsideration was an abuse of discretion. We held that the BIA “jurisdiction” position was a “misconstruction of the jurisdictional nature of its own filing deadline,” amounting to “legal error” rendering its discretionary decision “arbitrary, irrational, or contrary to law.”

The Second Circuit decided the same question the same way in Zhong Guang Sun v. U.S. Department of Justice.¹⁰ That was another late filing despite timely drop off at an overnight delivery service. There too the BIA claimed lack of authority to extend the time. And in Zhong, as we had in Oh, the Second Circuit held that the Board was mistaken as a matter of law. Zhong noted that the Service itself “strongly encouraged” aliens and their lawyers to use overnight delivery services.¹¹ Zhong adopted our view that the BIA's jurisdictional argument was a “misconstruction” of its deadline.

Then the BIA went the other way in Matter of Liadov,¹² which the government urges us to follow. Liadov too was a timely drop off for guaranteed timely delivery, but delivery service error resulted in one day late arrival at the BIA's Falls Church office. The BIA expressly rejected Oh and Zhong, for two reasons. First, the Board emphasized the “importance of timely filings,” ¹³ and that “[m]eaningful filing deadlines are as critical to the smooth and fair administration of the Board as they are to the courts.” ¹⁴ And second, the Board noted that “[n]either the statute nor the regulations grant us the authority to extend the time for filing appeals.” ¹⁵ Nevertheless, the Board noted, “the Board may certify a case to itself” in “exceptional circumstances,” even though the appeal was filed late.¹⁶

B. 8 C.F.R. § 1003.38 is a non-Jurisdictional Claim–Processing Rule

Liadov does not use the word “jurisdiction.” Nevertheless, the Board in Liadov said that it did not have “the authority” and in the case before us, the Board says it “does not have authority to extend the time....” That language addresses jurisdiction. The government argues in the case before us that Liadov addresses jurisdiction. The Board was not, in that case or this one, merely explaining its exercise of discretion whether to accept the late filing. The Board argues that the time deadline is indeed “jurisdictional.” ¹⁷

“Jurisdiction” means the legitimate exercise of judicial power. Power legitimately exercised is authority. When a court says “we lack authority” or “we lack jurisdiction,” it is not saying “we exercise our discretion not to hear your case.” It is saying “we lack legitimate authority to exercise our power in your case, and could not even if we wanted to.” Since we held in Oh that the Board did have authority, and the Board held in Irigoyen–Briones's case that it did not, we must analyze whether the Board must defer to this court, or we must defer to the Board, on the question of the Board's jurisdiction.

The Board claims that we must defer to the Board, and treat Oh as overruled, under National Cable & Telecommunications Association v. Brand X Internet Services¹⁸ and subsequent Supreme Court authority holding that jurisdictional deadlines are not subject to equitable exceptions.¹⁹ Brand X held that an FCC decision interpreting the Communications Act of 1934 was entitled to Chevron²⁰ deference even though it conflicted with an earlier Court of Appeals ruling. In the course of its decision, the Court explained that “[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” ²¹ Thus, Liadov does indeed supersede Oh if the statute is ambiguous and the BIA's interpretation is reasonable.

But under...