On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096-384-113.
The opinion of the court was delivered by: Milan D. Smith, Jr., Circuit Judge
Argued and Submitted April 15, 2009 -- San Francisco, California
Before: Eugene E. Siler, Jr.,*fn1 Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Kleinfeld
Guillermo Irigoyen-Briones (Irigoyen-Briones) petitions for review of the Board of Immigration Appeals' (BIA) denial of his motion to reconsider its rejection of his appeal of an Immigration Judge's (IJ) decision as being untimely filed. Irigoyen-Briones sought to excuse the late filing as having been caused by an overnight delivery service's failure to deliver the notice until the day after the BIA's thirty-day deadline. He argues that the BIA's determination that it lacks jurisdiction to extend the appeal filing deadline conflicts with this court's decision in Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir. 2005), which held on similar facts that the deadline is "subject to exceptions in 'rare circumstances.' " In response, the Attorney General asserts that the BIA's subsequent decision in In re Liadov, 23 I&N Dec. 990 (BIA 2006), which expressly addressed and rejected the holding in Oh, is the governing authority. Because 8 C.F.R. § 1003.38(b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and because the BIA's interpretation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, we hold that Supreme Court precedent requires us to give deference to the BIA's construction of 8 C.F.R. § 1003.38(b), and we affirm the BIA's denial of IrigoyenBriones' motion to reconsider its rejection of his appeal of the IJ's decision as being untimely filed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Removability Charges and IJ Proceedings
Irigoyen-Briones, a native and citizen of Mexico, entered the United States illegally in 1991. In November 2003, United States Immigration and Customs Enforcement commenced proceedings against him by filing a Notice to Appear (NTA), charging him with removability as an alien present in the United States without being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
At a hearing before an IJ in December 2003, IrigoyenBriones admitted the allegations in the NTA and conceded removability. In October 2004, he filed an application for can cellation of removal or, in the alternative, for voluntary departure. The IJ denied these requests in December 2006.
On January 18, 2007, Irigoyen-Briones' counsel filed a Notice of Appeal (NOA) with the BIA. The BIA dismissed the appeal as untimely because, pursuant to 8 C.F.R. § 1003.38(b), the NOA was due one day earlier, on January 17, 2007. The BIA observed that in light of the jurisdictional dismissal, if either party "wish[ed] to file a motion to reconsider challenging the finding that the appeal was untimely, [it had to] file [the] motion with the Board. However, if [either party was] challenging any other finding or seek[ing] to reopen [the] case, [it had to] file [the] motion with the Immigration Court."
2. Motion for Reconsideration
In March 2007, Irigoyen-Briones filed a motion for reconsideration or, in the alternative, for the BIA to certify the appeal to itself. He 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, and Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105 (2d Cir. 2005).
In a supporting declaration, Irigoyen-Briones' counsel stated that after he retained her on January 8, 2007, she made an appointment with the Immigration Court on January 11, 2007, to listen to the tape recordings of the IJ proceedings. "Upon opening the envelope containing the tapes, [she] was surprised to find that there were (at least) five tapes," which included a "rather long" oral decision by the IJ, and needed to "research a few legal issues before [she] could write the Notice of Appeal with enough specificity so that it would not be summarily dismissed." She completed this additional research and prepared the NOA by the end of January 13, 2007, and was aware that there would be no mail service on January 14 or 15, 2007, because the 14th was a Sunday and the 15th was Dr. Martin Luther King, Jr. Day.
Counsel's declaration further states that, on January 16, 2007, she mailed the NOA via the United States Postal Service's (USPS) Express Mail delivery service, which guaranteed delivery of the NOA to the BIA on the due date of January 17, 2007. She notes that although the cut-off time for a next-day delivery to the BIA was 4:00 p.m., she delivered the NOA to the USPS station at 10:40 a.m. to ensure that there was ample time for the delivery, and that in her over ten years of experience using USPS for overnight deliveries, she had never before had a document delivered late. She also states that "USPS, through its agent with whom [she] spoke by telephone, admits that it failed in delivering the Express Mail package as guaranteed and indicates that they will provide a refund upon request at any post office."
In denying Irigoyen-Briones' motion for reconsideration, the BIA first observed that rather than establishing an "error of fact or law in the Board's prior decision," he instead argued that "the Board should make an exception to the filing deadline, or at the very least, accept the appeal on certification." Next, the BIA noted counsel's argument that "unlike the respondent in [In re] Liadov, 23 I&N Dec. 990 (BIA 2006), she did not wait until the last possible moment to prepare the brief, but worked diligently for several days to prepare [it], even traveling to the Immigration Court in San Francisco to listen to the tape of the Immigration Judge's decision." The BIA then concluded:
The Board does not observe the mailbox rule (accepting the mailing date as the filing date). A Notice of Appeal from the decision of an Immigration Judge must be filed at the Board no later than 30 calendar days after the Immigration Judge renders an oral decision or mails a written decision. Receipt by any other entity-be it the U.S. Postal Service, commercial courier, or institution of detention-does not suffice. The regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 C.F.R. § ...