Irigoyen-Briones, et al v. Holder

Filing

FILED OPINION (EUGENE E. SILER, ANDREW J. KLEINFELD and MILAN D. SMITH, JR.) GRANTED; VACATED; REMANDED. Judge: AJK Authoring, Judge. FILED AND ENTERED JUDGMENT. [7768048]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO IRIGOYEN-BRIONES, aka
Jose Vega-Ramirez,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.




No. 07-71806
Agency No.
A096-384-113
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 15, 2009—San Francisco, California
Filed May 31, 2011
Before: Eugene E. Siler,* Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Kleinfeld

*The Honorable Eugene E. Siler, Senior Circuit Judge for the Sixth Circuit, sitting by designation.

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COUNSEL
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.
OPINION
KLEINFELD, Circuit Judge:
We address1 whether the thirty-day deadline for filing a
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 peti-

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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. IrigoyenBriones 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
tion for rehearing en banc, and a call for rehearing en banc and exchange
of memoranda within the court, led us to reconsider our views. Our September 29, 2009, opinion in this case and its companion case, Turcios v.
Holder, 582 F.3d 1075 (9th Cir. 2009), were vacated. See IrigoyenBriones v. Holder, 608 F.3d 491 (9th Cir. 2010); Turcios v. Holder, 608
F.3d 491 (9th Cir. 2010). We now issue this opinion in its stead.
2
The proceedings were pursuant to Immigration and Nationality Act
(INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
3
8 U.S.C. § 1231(b)(3); 8 U.S.C. § 1229c.

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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.
4

The Notice of Appeal was due at the BIA thirty days after the IJ’s decision, in this case by January 17, 2007. See 8 C.F.R. § 1003.38(b) (“The
Notice of Appeal to the Board of Immigration Appeals of Decision of
Immigration Judge (Form EOIR-26) shall be filed directly with the Board
of Immigration Appeals within 30 calendar days after the stating of an
Immigration Judge’s oral decision or the mailing of an Immigration
Judge’s written decision. If the final date for filing falls on a Saturday,
Sunday, or legal holiday, this appeal time shall be extended to the next
business day. A Notice of Appeal (Form EOIR-26) may not be filed by
any party who has waived appeal.”)

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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
5

In re Liadov, 23 I. & N. Dec. 990 (BIA 2006).
Immigration Act of 1990, Pub. L. 101-649, § 545(d)(2), 104 Stat. 4978,
5066 (1990).
7
8 C.F.R. § 1003.38(b).
6

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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
8

See Executive Office of Immigration Review, U.S. Dep’t of Justice,
Form EOIR-26, *1 (2008), http://www.usdoj.gov/eoir/eoirforms/
eoir26.pdf.
9
Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005).
10
Zhong Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105, 109-11 (2d
Cir. 2005).

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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 ClaimProcessing 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
11

The BIA’s own Practice Manual says that “[b]ecause filings are datestamped upon arrival at the Board, the Board strongly recommends that
parties file as far in advance of the deadline as possible, and, whenever
possible, use overnight delivery couriers (such as Federal Express, United
Parcel Service, Airborne Express, DHL) to ensure timely receipt.” Board
of Immigration Appeals Practice Manual § 3.1(b), available at
http://www.justice.gov/eoir/vll/qapracmanual/pracmanual/chap3.pdf.
12
In re Liadov, 23 I. & N. Dec. 990 (BIA 2006).
13
Id. at 991.
14
Id. at 992.
15
Id. at 993.
16
Id. See 8 C.F.R. § 1003.1(c).

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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.
[1] 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
17

In numerous unpublished decisions, the Board has said that it lacks
jurisdiction to hear a case when the notice of appeal is untimely. See, e.g.,
In re Oliver Sherman Muli Wood, 2009 WL 3335990 (BIA Oct. 8, 2009)
(“Accordingly, we find that the appeal is untimely, and that we lack jurisdiction.”); In re Fernando Torrez Aguayo, 2007 WL 927152 (BIA Feb.
28, 2007) (“Since the appeal is untimely, we lack jurisdiction.”).
18
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967 (2005).
19
See Bowles v. Russell, 551 U.S. 205, 213-14 (2007) (overruling Harris
Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962), and
Thompson v. INS, 375 U.S. 384 (1964)).
20
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).

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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.
[2] But under subsequent Supreme Court authority, we are
bound to conclude that the statute is not ambiguous and is not
jurisdictional. The statute says that “the Attorney General
shall issue regulations with respect to . . . the time period for
the filing of administrative appeals in deportation proceedings
. . . .”22 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.”23 Neither says
anything about jurisdiction or authority. We avoid what might
be a serious question24 of whether an agency’s exercise of its
regulatory authority includes the authority to limit jurisdiction
conferred by statute, by assuming without deciding that the
thirty-day time limit may be treated as though it were statutory. The question then becomes whether the thirty-day time
limit is jurisdictional.
[3] A recent line of Supreme Court decisions compels the
conclusion that the thirty-day time limit is a claim-processing
rule and not jurisdictional. Kontrick v. Ryan25 held that a time
limit was a “claim-processing rule,” as distinct from a juris21

Brand X, 545 U.S. at 982-83.
Immigration Act of 1990, Pub. L. 101-649, § 545(d)(2), 104 Stat.
4978, 5066 (1990).
23
8 C.F.R. § 1003.38(b).
24
Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may
determine a lower federal court’s subject-matter jurisdiction.”).
25
Id. at 454.
22

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dictional limitation, noting that courts “have been less than
meticulous . . . [in using] the term ‘jurisdictional’ to describe
emphatic time prescriptions in rules of court.”26 Though there
are exceptions, as for appeals to the circuit courts where the
Supreme Court has long held that the time limit is jurisdictional,27 the general rule is that “the label ‘jurisdictional’[is] not
for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the
persons (personal jurisdiction) falling within a court’s adjudicatory authority.”28
[4] The Court extended Kontrick in Scarborough v. Principi,29 which involved a late application for EAJA fees to the
United States Court of Appeals for Veterans Claims. The
Court held that because “the current dispute . . . presents a
question of time,” and time prescriptions should generally be
classified as claim-processing rules rather than jurisdictional
rules, the thirty day deadline was not jurisdictional. Had there
been any room for doubt after Scarborough, the recent unanimous decision in Henderson v. Shinseki30 would eliminate it.
That was another late filed veteran’s claim. The Court held
that “a rule should not be referred to as jurisdictional unless
it governs a court’s adjudicatory capacity,” and “filing deadlines . . . are quintessential claim-processing rules” that
“should not be described as jurisdictional.”31 Even though the
time limits for filing appeals in Article III courts have been
deemed jurisdictional,32 the statutory language for appeals to
26

Id.
See Bowles v. Russell, 551 U.S. 205, 214 (2007).
28
Kontrick, 540 U.S. at 455.
29
Scarborough v. Principi, 541 U.S. 401, 414 (2004).
30
Henderson v. Shinseki, 131 S. Ct. 1197 (2011).
31
Id. at 1202-03.
32
Bowles v. Russell, 551 U.S. 205, 214 (2007). Bowles holds that the
Court lacks authority to allow the use of a “unique circumstances” exception to the time limit for appeals to the Circuit courts, that time limit being
genuinely jurisdictional. Henderson establishes that this interpretation
does not apply to non-jurisdictional time limits in Article I courts, so Oh
is not overruled by Bowles.
27

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the Article I court at issue, “shall file . . . within 120 days,”
was not jurisdictional.
[5] Arguably, Scarborough and Henderson might have
been limited because veterans’ claims are traditionally treated
liberally, but that argument cannot be made in light of the
unanimous decision in Arbaugh v. Y & H Corp.33 Arbaugh did
not involve a class of litigants receiving special solicitude or
even a time deadline. The arguably jurisdictional requirement
in that case was the fifteen-employee threshold for Title VII
claims. The unsuccessful employer tried to raise this after a
jury verdict for the plaintiff, since jurisdictional requirements
can never be waived. Emphatically narrowing past purportedly “jurisdictional” rulings, Arbaugh says that the Court
itself had been “less than meticulous” in making “ ‘drive-by
jurisdictional rulings’ that should be accorded no precedential
effect.”34 The Court characterized its recent decisions as holding that “time prescriptions, however emphatic, are not properly typed jurisdictional.”35 And that was so even where the
Court itself had described them as “mandatory and jurisdictional,” because the Court itself had been “profligate in its use
of the term.”36
[6] Congress did not set the thirty-day time limit before us.
It delegated to the agency the power to issue regulations with
respect to the time period for filing. And the regulation does
not say that it is jurisdictional. Nor does the agency itself treat
the time limit as jurisdictional. Instead, the agency sua sponte
decides to exercise its authority where the reasons for lateness
are “extraordinary,”37 something it could not do if the time
limit was jurisdictional. By reviewing cases where the late33

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
Id. at 511.
35
Id. at 510 (citation and internal quotation marks omitted).
36
Id.
37
See, e.g., In re Slade, 10 I & N Dec. 128, 128 (BIA 1962) (certifying
untimely appeal in light of important issue of statutory construction).
34

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ness is extraordinary, the agency interprets its own regulation
as a non-jurisdictional claim-processing rule. Thus, in light of
Kontrick, Scarborough, Arbaugh, and Henderson, the regulation has to be read as a claim-processing rule that is not jurisdictional. The BIA’s rejection of our decision in Oh, and its
jurisdictional interpretation of its regulation in this case, are
mistaken as a matter of law. There is no ambiguous statute
that would entitle the agency to deference under Brand X and
Chevron, just an administrative claim-processing rule that
must be treated as non-jurisdictional.38
C.

Electronic Filing

In Gonzalez-Julio v. INS,39 we went so far as to hold that
the then-ten-day limit for filing notices of appeal denied due
process of law. The reason was that there were “two risks of
delay which [were] not in the [alien’s] control: delay in mail
delivery and delay in filing after receipt by the Office.”40
Applying the principle enunciated by the Supreme Court in
Logan v. Zimmerman Brush Company41 we held that the alien
was entitled by the Due Process Clause to an opportunity to
be heard on his appeal “at a meaningful time and in a meaningful manner.”42 Because the BIA erred as a matter of law,
we need not decide whether arbitrary application of the time
limit denied Irigoyen-Briones due process of law. The issue
lurks though if the time limit is applied arbitrarily.
38

This position, though on different grounds, finds support in both the
Eighth and Tenth Circuits as well. Each has interpreted the BIA’s filing
deadline to be mandatory but not jurisdictional. See Liadov v. Mukasey,
518 F.3d 1003, 1008 n.4 (8th Cir. 2008) (agreeing with the Tenth Circuit
that “the time limit in 8 C.F.R. § 1003.38(b) is mandatory but not jurisdictional”); Huerta v. Gonzales, 443 F.3d 753, 756 (10th Cir. 2006) (holding
that the filing deadline is a “claim-processing rule,” and is thus mandatory
but not jurisdictional).
39
Gonzalez-Julio v. INS, 34 F.3d 820 (9th Cir. 1994).
40
Id. at 823.
41
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).
42
Gonzalez-Julio, 34 F.3d at 823 (quoting Logan, 455 U.S. at 437).

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The BIA argues that the alien should “file as far in advance
of the deadline as possible.”43 That answer is unsatisfactory
because a person with fundamental interests at stake is entitled to certainty about when he must ask to be heard in order
to get a hearing.
Nor is thirty days so long a time that a few days here or
there should not matter to the alien. The alien owns the thirty
days, and all of them are likely to be essential. Aliens’ appeals
are not, by and large, handled by giant spare-no-expense law
firms, in which a partner can command a senior associate who
can command a junior associate to have something on his
desk by 9:00 A.M. Monday without fail, and then fly a courier
to Washington D.C. to assure timely filing in Falls Church.44
The record here describes the details of a typical case. The pro
se alien had lost his case before the IJ just before Christmas
and came to a lawyer’s office during her first appointment slot
right after New Year’s. The lawyer could not do anything
without listening to the Immigration Court’s tapes, and the
alien needed a few days to raise the money for her retainer.
By the following Monday, the money had been obtained and
by Thursday, counsel drove the 45 miles to the court to listen
to the tapes. Over the next 48 hours, counsel researched the
applicable law necessary to formulate the notice of appeal and
prepared the notice. Monday was a holiday, so counsel drove
to the post office herself first thing in the morning Tuesday,
and sent the papers express mail for guaranteed delivery
Wednesday, when they were due. Both client and lawyer
acted with reasonable diligence to comply with the filing
deadline. As is common, all thirty days were reasonably necessary for the task (too short, actually—the tapes ran longer
than the time the Immigration Court had for counsel to listen
43

Liadov, 23 I. & N. Dec. at 992.
But see Maples v. Allen, 586 F.3d 879, 884, 886-90 (11th Cir. 2009)
(denying relief to prisoner in part because his lawyers, from the large New
York firm Sullivan & Cromwell, caused his notice of appeal to be filed
late).
44

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to them on Thursday). An appellant who has deposited his
notice of appeal to the BIA with the U.S. Postal Service or an
approved carrier the day before it is due, for guaranteed nextday delivery, has done all that reasonable diligence requires.
Requiring some uncertain earlier date would deprive him both
of notice of the due date and of time often necessary to perform the necessary work.
The Board tosses an additional red herring across the path
to justice by arguing it does not have a “mailbox rule.” This
argument is irrelevant, because petitioner has never argued
that it does. A “mailbox rule” means that an act is deemed
accomplished when the required submission is mailed as
opposed to when it is received or filed. For example, a “mailbox rule” lets us comply with the April 15 due date for tax
returns by mailing them that day,45 and lets attorneys comply
with motion and opposition deadlines by service, that is, mailing, rather than receipt or filing.46 In this case, IrigoyenBriones’s lawyer does not contend that the notice of appeal
should be deemed filed when she sent it, but rather that her
client ought to be relieved from lateness because his attorney
sent it such that in the absence of an extraordinary delay by
the carrier, it would have been received on time.
[7] In Gonzales-Julio, more than fifteen years ago, we
noted that the BIA could obviate much of the problem by
allowing filing within a reasonable distance of the alien’s residence instead of limiting it to Falls Church, Virginia. Now,
fifteen years later, the government’s justification for requiring
physical filing in Falls Church has become technologically
obsolete. The Board could easily adopt electronic filing.47
45

26 U.S.C.A. § 7502(a).
Fed. R. Civ. P. 5(b)(2)(C).
47
Federal courts, no seekers of novelty themselves, generally provide
for electronic case filing. See, e.g., 9th Cir. Admin. Order Re Electronic
Filing (Nov.10, 2008); 3d Cir. R. 25.1; 4th Cir. Admin. Order 08-01 (Apr.
1, 2008); 6th Cir. Admin. Order 08-01 (May 7, 2008); 8th Cir. R. 25A;
10th Cir. Gen. Order 95-01 (Mar. 18, 2009); D.C. Cir. Admin. Order (May
15, 2009). The Federal Rules of Civil Procedure expressly address electronic filing. Fed. R. Civ. P. 5(d)(3).
46

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Were it to do so, the occasions for exercising discretion
regarding late filing would become far rarer.
Doubtless electronic filing saves attorneys in places like
Alaska, or for that matter most of the rest of the country, and
their clients from the risk of arbitrary horrendous consequences due to chance post office and delivery delays. It was
not Irigoyen-Briones’s error that made the Postal Service
delay delivery of his package, but the consequence of that late
delivery fell on him, not the post office, and the catastrophic
consequence was easily avoidable by people at the agency.
Just as we have for many decades assumed the availability of
telephones, automobiles, and airplanes, we ought now to
assume the availability of email and the internet when we
assess the reasonableness of government action.
III.

Conclusion

With respect to this petition, our power is limited to correcting the BIA’s “misconstruction of the jurisdictional nature
of its own filing deadline.”48 Since the agency erred as a matter of law in concluding that it lacked jurisdiction, we must
under Ventura49 remand to the agency to permit it fully to
reconsider whether, under the circumstances presented, it will
hear the appeal from the IJ’s decision in this case.
We are sympathetic to the agency’s need to assure timely
filing by litigants by strict enforcement of deadlines. Nevertheless, “strict” does not include “unreasonable.” Any overloaded adjudicative entity may be tempted to avoid exercising
judgment, seeking refuge from its caseload by arbitrarily
enforcing claim-processing rules. There would be nothing
wrong with a rigid filing deadline if it could be complied with
from anywhere in this huge country with certainty, but rigid48

Oh, 406 F.3d at 613.
INS v. Ventura, 537 U.S. 12, 14 (2002).

49

Case: 07-71806 05/31/2011 Page: 16 of 16

7114

ID: 7768048 DktEntry: 34-1

IRIGOYEN-BRIONES v. HOLDER

ity is fundamentally unfair if people cannot assure their own
compliance.50
To protect its important interest in proceeding expeditiously with these cases, yet avoid subjecting aliens to the risk
of losing their appeals due to bad weather or delivery service
error, all the Board need do is what courts and private companies routinely do: allow people to send their notices of appeal
over the internet. It is a cruel irony that the Board distributes
the manual that lawyers are supposed to use as guidance on
the internet,51 yet pretends the internet does not exist when it
comes to receiving papers. The Board’s claim that it lacked
jurisdiction to consider Irigoyen-Briones’s appeal is an
invalid excuse.
The PETITION IS GRANTED, the Board’s decision
VACATED, and the case REMANDED.

50

Cf. Houston v. Lack, 487 U.S. 266, 270-71 (1988).
See Board of Immigration Appeals Practice Manual, available at
http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm.
51