Please, no one take this as an excuse to blow off the Board of Immigration Appeals deadlines, but the 9th Circuit recently restated its holding that the BIA’s appeals deadline is not jurisdictional, overturning (in that circuit) the BIA’s attempted overruling of circuit precedent. In a decision found here, the 9th Circuit called the 30-day deadline a “claim-processing rule” rather than a limit on jurisdiction.
The court noted that in its previous case, Oh v. Gonzales, it had held that the BIA’s position that it had no authority to accept a late filing was incorrect as a matter of law “because the BIA, despite its ‘jurisdictional’ argument, claimed authority to excuse late filings in ‘rare circumstances.’ The Second Circuit had made a similar holding in Zhong Guang Sun v. U.S. Department of Justice.
After reviewing a number of Supreme Court decisions where court filing deadlines were treated as non-jurisdictional, the 9th Circuit noted that the BIA itself treated its appeals deadline as non-jurisdictional when it suited:
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,” something it could not do if the time limit was jurisdictional. By reviewing cases where the lateness is extraordinary, the agency interprets its own regulation as a non-jurisdictional claim-processing rule.
The court went further and suggested that the Board should adopt e-filing, implying that by not adopting e-filing, the Board may be acting arbitrarily in applying its deadline, stating:
The BIA argues that the alien should “file as far in advanceof the deadline as possible.” 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.
. . .
Just as we have for many decades assumed the availability of telephones, automobiles, and airplanes, we ought now toassume the availability of email and the internet when we assess the reasonableness of government action.
This is an important decision – it will be interesting to see whether other circuits follow suit and how the BIA reacts.