Deportation Deadline, Gimme A Break

9th Circuit Court of Appeals

Sometimes you can fight the big bureaucracy and win, or so the 9th U.S. Circuit Court of Appeals showed today.  Guillermo Irgoyen-Briones appeared before an immigration judge just before Christmas 2006 and admitted he had been in the U.S. since 1991 illegally and could be removed.  But he asked to be allowed to leave voluntarily rather than be deported.  The judge refused and Irgoyen-Briones had 30 days to appeal. 

He got the first appointment he could with a lawyer after New Year’s but the lawyer couldn’t do anything without listening to the tape of his court hearing.  Immigration is notoriously slow in transcribing tapes so no transcript was available.  Irgoyen-Briones took a couple days to raise money to pay the lawyer and as soon as she got paid the lawyer drove 45 miles to listen to the tape.  

She took 48 hours to do legal research and prepared a notice of appeal.  But now it was Jan. 16, 2007, the Martin Luther King holiday.  So on Jan. 17, 2007, with one day to spare on the 30-day deadline, she sent the appeal notice by express mail for guaranteed next day delivery to Falls Church, Virginia, the only place aliens may file appeals. 

As you may have guessed, the post office did not get it there by the Jan. 18 deadline, but delivered it one day late, Jan. 19.  They offered the lawyer a refund for the delay but that was little comfort for Irgoyen-Briones who stood to be deported without an appeal.

The Board of Immigration Appeals dismissed his appeal as late… one day late.  And it said there was nothing it could do.  The 9th U.S. Circuit Court of Appeals stepped in Tuesday with an opinion to settle whether the BIA was legally bound by the 30-days no matter what, or whether it had leeway.  The court held that Congress didn’t legally mandate the 30-days, it was a BIA regulation.  The BIA indeed allowed some discretion to overlook missed deadlines in extraordinary circumstances. 

So it could allow Irgoyen-Briones to appeal given that he did everything on time and it was the post office that ate his paperwork.

This is not the first time the BIA has had this sort of problem.  Back in 2005, similar next-day delivery slip-ups at Falls Church, Virginia prompted the appeals courts in California and New York to order the BIA to lighten up.  In fact, the 9th Circuit decided this case in 2009 in a memorandum that set no precedent, but decided to reconsider and issued today’s opinion.

Judge Andrew Kleinfeld said the BIA tossed an additional “red herring across the path to justice.” The BIA says it has no ‘mailbox rule’ meaning it does not consider appeals to be timely filed when they are mailed, rather than when they are received.  But Irigoyen-Briones never argued for a mailbox rule.  He only wanted them to consider it wasn’t his fault the notice didn’t arrive as the post office promised.

Kleinfeld pointed out that the court told the BIA 15 years ago it could easily solve this problem by allowing aliens to file papers within a reasonable distance of their residence, rather than mandating the papers be physically filed in Falls Church.  “Filing in Falls Church has become technologically obsolete,” he wrote.

 An electronic filing option would save lawyers in distant places “like Alaska,” (Kleinfeld is from Alaska) the risk of horrendous results from mail delays.

 The appeals court sent the case back to the BIA and told it to reconsider.

 Case: Irgoyen-Briones v. Holder, No. 07-71806  (9th Circuit)

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