Wednesday, September 13, 2006

BIA must consider giving a break when Airborne Express makes a mistake

The Board of Immigration Appeals (the BIA) has a strict rule that it must receive a Notice of Appeal within 30 days of the immigration judge's decision if the immigrant wants to appeal. What happens, though, if on the 29th day, the immigrant ships the Notice of Appeal, but due to one of those rare errors by Airborne Express, it does not get there until after the 30th day?

Updated answer: looks like you are in bad shape. In Matter of Lladov, 23 I&N Dec. 990 (BIA 2006), the BIA ruled in September 2006 that late delivery by a guaranteed overnight service is no excuse for a late filing. You can ask the BIA to certify the case to itself, but the BIA will often not do so if your only excuse is that the overnight delivery service took longer than guaranteed.

In an earlier case, Zhong Guang Sun v. Department of Justice (2d Cir. Aug. 25, 2005), the BIA had said that there were no exceptions to the 30-day deadline and even if it was Airborne Express's fault, there was nothing the BIA could do. The Second Circuit disagreed, saying that the BIA must adopt a rule that certain exceptional circumstances can allow an appeal to continue even though the BIA did not receive the appeal until after the 30th day. The Second Circuit sent the case back to the BIA for it to ponder and decide whether it would allow the appeal to continue. But the BIA was not allowed to say that no exceptions exist and refuse to consider whether to grant the requested exception in this case. At the time, we thought it might be good to appeal the issue to the circuit court immediately, rather than hope a motion to reopen to the BIA is granted. Certainly, you need to raise to the circuit court the issue that the brief should be deemed as timely filed. It seems that nobody raised that argument to the First Circuit in Liberal de Araujo v. Gonzales, No. 05-1886 (1st Cir. Aug. 11, 2006), because the First Circuit simply said the immigrant's lawyers never addressed the fact that the BIA did not get the brief in time. There, the lawyer sent his brief by Federal Express but instead of taking one day to arrive, it took four days to arrive and the BIA rejected it as not being timely filed.