Oh v. Gonzales, 03-73131.

• Decision Date: 02 May 2005
• Docket Number: No. 03-73131.,03-73131.
• Parties: Kyu O. OH, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

406 F.3d 611

Kyu O. OH, Petitioner, v. Alberto GONZALES,^* Attorney General, Respondent.

No. 03-73131.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2005.

Filed May 2, 2005.

Alex C. Park, Santa Clara, CA, for the petitioner.

Mary Jane Candaux, Anthony W. Norwood, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: D.W. NELSON, W. FLETCHER and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Petitioner Kyu Oh ("Oh") appeals the Board of Immigration Appeals' ("BIA") denial of her motion to reconsider its rejection of her notice of appeal of an Immigration Judge's ("IJ") decision as being untimely filed. Oh sought to excuse 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 deadline. Noting that in using an overnight delivery service she was following the very procedure the BIA's own Practice Manual recommended, Oh contends that the BIA abused its discretion and denied her due process in refusing to consider her reasonable excuse.¹ Because the BIA denied Oh's motion to reconsider on the erroneous assumption that it had no authority to extend the time for appeal, we grant Oh's petition and remand to the BIA to determine whether her circumstances justify excusing her late filing.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA's denial of a motion to reconsider for abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). "`An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.'" Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (quoting Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995)).

Oh, a native and citizen of South Korea, became a lawful permanent resident of the United States when she married a U.S. citizen in 1985; she was divorced in 1989. In 2001, after a six-week stay in Korea, Oh tried to re-enter the United States. She was detained by immigration officials, and admitted she had misdemeanor convictions for prostitution and possession of a controlled substance; she was also arrested on an outstanding warrant for prostitution.²

The former Immigration and Naturalization Service charged her with being removable; an IJ found her removable on January 10, 2003. That decision triggered a 30-day deadline for Oh to file a notice of appeal with the BIA. See 8 C.F.R. §§ 1003.38(b), (c). On January 24, Oh and her counsel completed the necessary paperwork, and on February 4 her counsel mailed the notice of appeal along with all paperwork and fees by overnight mail to the BIA for delivery by noon, February 5. The carrier, Airborne Express, failed to deliver the package on time; the BIA did not receive it until February 24, 2003.³

On May 30, 2003, the BIA issued a per curiam decision rejecting Oh's appeal as untimely. On June 25, Oh filed a motion asking the BIA to reconsider, and furnished proof that she had completed and mailed her notice of appeal well before the deadline. Accepting Oh's evidence that she had in fact deposited her properly addressed Airborne Express envelope into Airborne Express' pick-up box on February 4 for next day delivery to the BIA, the BIA nonetheless denied Oh's motion to reconsider. The BIA ruled that the "date stamp" placed on all filings when they are received by the BIA "is controlling in the computation of timely filing," and that "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)."⁴ The BIA also stated without elaboration that Oh's "case [was not] appropriate for exercise of the Board's power in exceptional circumstances sua sponte to reconsider a decision."

In support of the BIA's assertion that it lacked authority to accept Oh's late-filed appeal, the government relies on Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993), which states that "[t]he time limit for filing an appeal [to the BIA] is mandatory and jurisdictional." However, as the authority Da Cruz cites for this proposition states, "[d]espite the note of finality sounded by this principle, it is not inflexible." Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980). Significantly, the BIA's own Practice Manual recognizes as much. The Practice Manual, the BIA's official guidance on filing procedures and requirements, 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. See BIA Practice Manual, Ch. 3(b), p. 28 (rev.9/25/02).

The BIA's deadline is thus subject to exceptions in "rare circumstances," even when the notice of appeal does not actually arrive before the deadline. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir.2001) (en banc) ("If a time limit is jurisdictional, it is not subject to the defenses of waiver, equitable tolling, or equitable estoppel, although there may still be exceptions based on unique circumstances.") (emphasis added) (internal citation and quotation omitted); Shamsi v. INS, 998 F.2d 761, 763 (9th Cir.1993) (holding that an exception to jurisdictional bar existed when petitioner was confused by ambiguous regulations).

On its face,...