The Appeal's in the Mail!

If an appeal of an order of removal arrives at the Board of Immigration Appeals (BIA) a day late due to an error made by the post office, should the alien be deported?  That is the question in Irigoyen-Briones v. Holder, a recent decision from U.S. Court of Appeals for the Ninth Circuit in San Francisco.

On December 18, 2006, Mr. Irigoyen-Briones was ordered deported by an Immigration Judge (IJ).  At the conclusion of the deportation hearing, Mr. Irigoyen-Briones was instructed that if he wished to appeal the IJ’s decision, his notice of appeal must be filed with the Board of Immigration Appeals in Virginia in 30 days.  This means that Mr. Irigoyen-Briones’ paper notice of appeal must physically arrive at the BIA’s office in Falls Church, Virginia by January 17, 2007.  If the notice of appeal does not arrive by the proscribed date, Mr. Irigoyen-Briones’ order of deportation becomes final.

Following this hearing, Mr. Irigoyen-Briones consulted with and retained an attorney.  The attorney went to the Immigration Court to review the record of the deportation case and conducted legal research.  On January 16, 2007, the attorney mailed the notice of appeal to the BIA using the postal service’s express mail overnight delivery service.  The BIA rejected the Irigoyen-Briones’s appeal because the postal service delivered the notice of appeal on January 18, 2007, one day late.  Irigoyen-Briones appealed the BIA’s decision to reject his appeal to the Ninth Circuit Court of Appeal.

BIA appeals arriving one day late due to an error made by an overnight delivery service has been the subject of a fair amount of litigation.  In 2005, the Ninth Circuit and the Second Circuit Courts of Appeal reversed the BIA’s decision to reject these appeals, ruling that the principles of equity or fundamental fairness apply to appeals that arrive at the BIA one day late due to an error outside the control of the alien.  Click here and here to read those decisions.  In 2006, the BIA held that it does not have the jurisdiction or the authority to accept a late filed appeal.  The BIA held that the statute governing the time and process for filing an appeal does not permit the BIA to accept a late appeal no matter whose fault it is that the appeal arrived late.  Click here to read that decision in a pdf format.

The BIA advanced this argument in Irigoyen-Briones, and the court was unimpressed.  The court held that the statute governing BIA appeals is not jurisdictional because Congress did not limit the authority of the BIA to accept appeals, and the BIA’s regulation does not state that it considers the regulation jurisdictional.  The court observed that the statute governing the manner of appeals simply states that the BIA may set regulations governing the acceptance of appeals. 

The BIA also argued that it has an interest in the fair administration of justice by strictly enforcing its 30 day deadline.  The court dismissed this argument too, holding that solo practitioners and not large law firms typically litigate immigration appeals.  Thirty days is not a long time to prepare an appeal, and that the alien should not bear so high a price (deportation) for an error outside their control.  The court also observes that the BIA controls the manner the acceptance of appeals, and that the BIA is free to adopt filing methods that do not rely on papersuch as electronic filing.   The alien should be assured that when he or she exercises reasonable diligence by depositing a notice of appeal with an overnight delivery service on day 29, that the BIA will accept the appeal even if it arrives on day 31.

Finally, the BIA argued that it does not have a “mailbox rule” or postmarked deadline.  A mailbox rule allows an individual to comply with a deadline by ensuring that the post office postmarks their application by the proscribed date.  The court dismisses this argument saying that Irigoyen-Briones does not argue that the BIA has a mailbox rule.  Irigoyen-Briones argues that it is fundamentally unfair to be punished with deportation for an error outside of his control.

The court reversed its decision to reject the Irigoyen-Briones appeal and remanded it to the BIA to either accept the appeal or find another reason to reject it. The lesson to be learned from this case is that the immigration agencies do not think that the principles of equity apply to them.  They do not consider what is fair and what is right in its decision-making process.  They are happy to strictly adhere to their self authored rules, and are willing to transfer the risk of late delivery on the back of the applicant.

Copyright 2011 Richard M. Green, All Rights Reserved