Liadov v. Mukasey

• Decision Date: 14 March 2008
• Docket Number: No. 06-3522.,06-3522.
• Parties: Vladimir LIADOV, et al., Petitioners, v. Michael B. MUKASEY, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent. American Immigration Law Foundation, et al., Amici on Behalf of Petitioners.
• Court: U.S. Court of Appeals — Eighth Circuit

518 F.3d 1003

Vladimir LIADOV, et al., Petitioners, v. Michael B. MUKASEY, Attorney General of the United States,¹ Respondent American Immigration Law Foundation, et al., Amici on Behalf of Petitioners.

No. 06-3522.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 2007.

Decided March 14, 2008.

Matthew M. Armbrecht, argued, Jerzy T. Guzior, on brief, Minneapolis, MN, for Petitioner.

Michele Y.F. Sarko, OIL, USDOJ, argued, Washington DC, for Respondent.

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

LOKEN, Chief Judge.

Vladimir Liadov, his wife Laima, and their children, Agnija and Andrey, conceded removability and petitioned for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). An immigration judge denied relief, ordered the Liadovs removed to Lithuania, and granted them voluntary departure. The Board of Immigration Appeals ("BIA") dismissed their administrative appeal as untimely by one day. The Liadovs filed a timely motion urging the BIA to reconsider the dismissal, explaining that their attorney deposited the notice of appeal with an overnight delivery service two days before the filing deadline and contracted for next-day delivery. The BIA denied the motion on the ground that "the Board does not have the authority to extend the time in which to file a Notice of Appeal."

The Liadovs petitioned for review of the BIA order denying reconsideration. We granted the parties' motion to remand to the BIA for further consideration in light of two intervening circuit court decisions, Sun v. U.S. Dep't of Justice, 421 F.3d 105 (2d Cir.2005), and Oh v. Gonzales, 406 F.3d 611 (9th Cir.2005). On remand, the BIA issued a precedent decision, see 8 C.F.R. § 1003.1(g), again asserting that it lacked jurisdiction to consider the Liadovs' untimely appeal, and declining to exercise its discretionary authority to certify the Liadovs' case to itself under 8 C.F.R § 1003.1(c). In re Liadov, 23 I & N Dec. 990 (BIA 2006). The Liadovs petition for judicial review of that order.² We deny the petition for review.

I. Of Untimely Appeals, Jurisdiction, and Judicial Review

A. The Liadovs seek judicial review of an order of the BIA. The immigration laws grant the courts of appeals exclusive jurisdiction to review a "final order of removal." 8 U.S.C. § 1252(a)(1), (5).³ A BIA order denying reconsideration is reviewable as a final order of removal. See Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir.2004), cert. denied, 544 U.S. 962, 125 S.Ct. 1741, 161 L.Ed.2d 604 (2005). But we may review a final order of removal only if the alien "has exhausted all administrative remedies available ... as of right." 8 U.S.C. § 1252(d)(1). "[E]xhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute." Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 579, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989).

It is well-settled in the circuits, with strong recent support from the Supreme Court, that an alien whose appeal to the BIA was dismissed as untimely is precluded from judicial review of the merits of the removal order because he failed to properly exhaust an available administrative remedy. See Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003), and cases cited; cf. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2385-86, 165 L.Ed.2d 368 (2006). In the terminology of our habeas corpus jurisprudence, the alien's procedural default before the BIA created a procedural bar to judicial review. The reasons for this rule are apparent. The exhaustion requirement recognizes the BIA's primary responsibility to exercise the discretionary powers Congress has delegated, and it provides the agency "an opportunity to correct its own mistakes with respect to the programs it administers...." McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). These purposes would be frustrated if an alien could avoid the exhaustion requirement by filing an untimely administrative appeal and then seeking direct judicial review of the order of removal. See Woodford, 126 S.Ct. at 2384-87.

The Attorney General's regulations grant aliens the right to appeal an order of removal to the BIA. See 8 C.F.R. § 1003.1(b)(2). The notice of appeal to the BIA "shall be filed ... within 30 calendar days" of the immigration judge's oral or written decision. 8 C.F.R. § 1003.38(b). In this case, the Liadovs' notice of appeal was filed one day late. The BIA dismissed their appeal, ruling that "[n]either the statute nor the regulations grant us the authority to extend the time for filing appeals." Liadov, 23 I & N Dec. at 993. That ruling was consistent with BIA decisions dating back at least to 1948. See, e.g., In re Dirphys, 3 I & N Dec. 223 (BIA 1948); In re G-Z-, 5 I & N Dec. 295 (BIA 1953); In re Escobar, 18 I & N Dec. 412 (BIA 1983). Confirming this long-standing agency rule, the Attorney General ruled in 2002 that "[t]his deadline is mandatory and jurisdictional." In re Jean, 23 I & N Dec. 373, 378 (BIA 2002), citing Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993).

The BIA's ruling that it lacks "jurisdiction" to consider an untimely appeal from a final order of removal has the effect of depriving the alien of judicial review that is otherwise mandated by statute for failure to exhaust this available administrative remedy. In these circumstances, a reviewing court necessarily has jurisdiction to review the agency's jurisdictional ruling. See generally "[BIA]: Procedural Reforms to Improve Case Management," 67 Fed. Reg. 54878, 54882-85 (Aug. 26, 2002). The Liadovs and supporting amici argue that the BIA's ruling is inconsistent with agency practice and is contrary to decisions in four circuits, including our own decision in Atiqullah v. INS, 39 F.3d 896, 898 (8th Cir.1994), which, they contend, should be controlling.

B. Federal courts have often said that statutes and court rules establishing time limits are "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). In recent cases, the Supreme Court has distinguished between time constraints that limit a court's subject matter jurisdiction, and "claim-processing rules" that may be mandatory but do not limit the tribunal's jurisdiction and therefore may be waived or forfeited. See Eberhart v. United States, 546 U.S. 12, 13-19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). However, in Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 2365-66, 168 L.Ed.2d 96 (2007), decided after oral argument in this case, the Court adhered to prior cases declaring that statutes prescribing the time in which parties may file cases in the lower federal courts are truly jurisdictional, that is, they are congressional limits on our subject matter jurisdiction. In so holding, the Court overruled two prior cases that had created equitable, "unique circumstances" exceptions to the statute prescribing the time in which a notice of appeal to a court of appeals must be filed, Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964).

In Atiqullah, citing Ninth Circuit authorities, we held that the time limit for filing a notice of appeal to the BIA is "mandatory and jurisdictional" except in "unique circumstances," such as when the alien has been misled by the agency into an untimely filing. 39 F.3d at 898. The Ninth Circuit first adopted this "unique circumstances" exception in Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980), relying entirely on Harris and Thompson, the cases explicitly overruled in Bowles. Likewise, the Ninth Circuit in Oh, 406 F.3d at 613, and the Second Circuit in Sun, 421 F.3d at 109, the decisions that prompted the initial remand in this case, relied on Hernandez-Rivera in superimposing a judicial exception on the BIA's determination of its own jurisdiction. We conclude that, after Bowles, Atiqullah is no longer a controlling precedent. Therefore, we must reexamine whether a timely appeal to the BIA is mandatory or jurisdictional, in which case judicial review is procedurally barred by the Liadovs' failure to exhaust with a timely appeal. We did not reach this question in denying the petition for review in Holder v. Gonzales, 499 F.3d 825, 829 n. 1 (8th Cir.2007).

In Bowles, the Supreme Court explained that whether a statutory time limit is jurisdictional is a question of legislative intent because Congress decides when, and under what conditions, federal courts can hear cases. "Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the `unique circumstances' doctrine is illegitimate." 127 S.Ct. at 2365-66. When dealing with a time limit established by administrative agency regulation, the inquiry is more layered, but the first question is whether Congress mandated the time limit as a limit on the agency's jurisdiction. If so, then we must enforce the time limit without exception under Bowles. If not, then we must review the agency's declaration that the time limit is "jurisdictional" (or mandatory)⁴ under our customary deferential standards for reviewing administrative actions.

1. The BIA is not a creature of statute. See INS v. Doherty, 502 U.S. 314, 327, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Its predecessor was established by the Attorney General in 1940, shortly after Congress transferred immigration functions from the Department of Labor to the Department of Justice. See 5 Fed.Reg. 2454 (July 3, 1940). Thus, the BIA's "jurisdiction" is defined by the powers delegated to it by the Attorney General, who has broad power to establish regulations governing immigration proceedings. See 8 U.S.C. § 1103(g)(2); 8 C.F.R. § 1003.1(a)(1). The delegation must of course be consistent with the statutes defining the Attorney General's authority. "Although it is true...