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IMMIGRATION: petition for review; no due process violation requiring appeals be filed in Virginia

United States Court of Appeals
No. 06-3307
Thomas Holder,
Alberto Gonzales, Attorney General
of the United States of America,
Petition for Review of an Order of
the Board of Immigration Appeals.
Submitted: May 17, 2007
Filed: August 24, 2007
Before MURPHY, HANSEN, and COLLOTON Circuit Judges.
HANSEN, Circuit Judge.
Thomas Holder petitions for review of the final order of removal issued by the
Board of Immigration Appeals (the Board). After careful review, we deny the
Thomas Holder is a Liberian citizen whom the Government charged in 2000 as
being removable. On June 13, 2003, an Immigration Judge issued a written order
denying Holder's request for voluntary departure and ordering him removed from the
United States. Pursuant to the regulations of the Board of Immigration Appeals,
Holder had 30 days from this order in which to file a notice of appeal at the Board's
offices in Falls Church, Virginia. See 8 C.F.R. 1003.38(b). Because the 30-day
period was set to expire on Sunday, July 13, 2003, Holder had until Monday, July 14,
to file his appeal. Id. On Friday, July 11, 2003, Holder sent his notice of appeal via
Federal Express overnight delivery. The package was scheduled to be delivered on
Monday, July 14, as the Board's offices are closed on weekends.
However, when Holder addressed the package containing the appeal notice, he
transposed two numbers in the zip code on the package address label. He used the
correct street address, city, and state for the Board's offices in Falls Church, but the
zip code was for a different city, Fredericksburg, Virginia. Because of this error,
delivery of the package was delayed and Holder's appeal was not delivered to the
Board until Tuesday, July 15, 2003, one day past the appeal deadline.
As a result of the untimely filing, the Board determined that it lacked
jurisdiction over Holder's appeal and dismissed it. Holder filed a motion for
reconsideration with the Board, which was denied, and then filed a petition for review
in this court. We remanded the case with instructions to consider whether Holder's
appeal was timely based on evidence that he had sent the package via overnight
carrier. The Board vacated its prior orders, determined after reviewing the record that
the appeal was untimely filed and that Holder had not demonstrated "unique
circumstances" justifying acceptance of his untimely appeal, and issued a final order
of removal. Holder then filed this petition, contending that the Board erred in finding
that his untimely appeal did not demonstrate the type of circumstances that justified
use of the Board's procedures certifying jurisdiction to itself. See 8 C.F.R. 1003.1(b).
Holder also argues that the Board violated his Due Process rights by its refusal to
modify its appeals process to allow for either a mailbox rule for filing or allowing
appeals to be filed in locations other than the Virginia office. After careful review,
we deny Holder's petition.
A. Jurisdiction
Holder first argues that the Board's determination that the appeal was untimely
was erroneous because there was evidence that the initial attempt to deliver the
package may have been timely. We review the Board's decision "using the substantial
evidence standard and will reverse only if 'it would not be possible for any reasonable
fact-finder to come to the conclusion'" in question. Shahinaj v. Gonzales, 481 F.3d
1027, 1028 (8th Cir. 2007) (quoting Menendez-Donis v. Ashcroft, 360 F.3d 915, 918
(8th Cir. 2004)). We find that the Board's determination that the notice of appeal was
filed on July 15, a day late, is supported by the record. The appeal was delivered on
that day by the overnight carrier, and there is no indication that delivery was attempted
at the Board's offices on Monday but rejected. The appeal was date-stamped by the
Board Tuesday, July 15, making it untimely. The record supports the Board's finding
that the notice was untimely filed and that, as a result, the Board lacks jurisdiction
over the appeal unless an exception to the regulation can be shown. See Oh v.
Gonzales, 406 F.3d 611, 613 (9th Cir. 2005) (holding that the BIA's appeal deadlines
are "subject to exceptions in 'rare circumstances' even when the notice of appeal does
not actually arrive before the deadline"); BIA Practice Manual, Ch. 3.1(b)(iv), p. 34
(rev. July 30, 2004) (noting that delays in delivery do not affect filing deadlines
"except in rare circumstances").
Holder also contends that the Board abused its discretion by determining that
there were no "unique circumstances" that justified an exception to the Board's filing
regulations and accepting the appeal using the Board's procedures for certifying an
appeal despite it being untimely. Oh, 406 F.3d at 613. "'An abuse of discretion occurs
if a decision is without rational explanation, departs from established policies,
invidiously discriminates against a particular race or group, or . . . fails to consider all
factors presented by the alien or distorts important aspects of the claim.'" Ivanov v.
Gonzales, 487 F.3d 635, 638 (8th Cir. 2007) (quoting Feleke v. INS, 118 F.3d 594,
598 (8th Cir. 1997)) (alterations in original). After reviewing the record, we find no
abuse of discretion. Holder relies heavily on Oh to argue that his case satisfies the
unique circumstances exception to the jurisdictional regulations. The Oh case
involved an apparent error on the part of the overnight courier, as Oh mailed the
notice of appeal via overnight carrier on February 4 with delivery scheduled for
February 5, four days prior to the expiration of the appeal period. Oh, 406 F.3d at 612.
The package was sent several days in advance of the deadline, yet the overnight
courier did not deliver the appeal for approximately three weeks, until February 24.
Id. The court in Oh did not itself hold that these facts constituted unique
circumstances, however, but remanded the case to the Board to make that
determination, because the Board had initially held that it had no ability to take
jurisdiction over an untimely appeal. Id. at 613-14.
In addition, while Holder makes much of the fact that he sent the package three
days in advance of the due date, he actually sent the package the last business day
before it was due, similar to a situation where a package is mailed on a Thursday for
overnight delivery to meet a Friday deadline. Holder allowed little to no time for
delay within the delivery system he chose. See In re Liadov et al., 23 I&N Dec. 990,
992 (BIA 2006) (holding that slight delays by an overnight couriers are not "rare"
circumstances or "extraordinary" events that justify the Board certifying a case to
itself when the appeal was untimely, despite the fact it was mailed 48 hours in advance
1We need not decide whether the Supreme Court's recent decision in Bowles
v. Russell, 127 S. Ct. 2360, 2366 (2007) (holding that because the authority for
extending the notice-of-appeal period was statutory under 28 U.S.C. 2107(c), the
time limit was jurisdictional, and the court of appeals therefore lacked jurisdiction
to consider whether "unique circumstances" warranted a waiver of the filing
period), applies to this case. See Khan v. U.S. Dep't of Justice, No. 06-2995, 2007
WL 1976151 (2d Cir. July 10, 2007) (discussing Bowles in the context of an
immigration appeal). A conclusion that the regulatory filing requirement is
jurisdictional pursuant to Bowles would have resulted in a dismissal of the
administrative appeal at the BIA level, which is the outcome reached below, and
concerning which we have denied review.
of the filing deadline via overnight courier and not delivered until the day after the
There is also no dispute that Holder erred in addressing the package when he
transposed two numbers in the zip code, resulting in the package zip code indicating
a different city in Virginia than where the Board's offices were located. Any error
attributable to the error in the zip code is attributable to Holder, not the mail courier.
See BIA Practice Manual, Ch. 3.1(b)(iv), p. 34 (rev. July 30, 2004) (noting in the most
recent edition that "[d]elays caused by incorrect postage or mailing error by the
sending party do not affect existing deadlines"). The Board's decisionthat Holder's
appeal, filed on the last business day before it was due and containing an incorrect zip
code in the address, did not involve unique circumstances justifying the Board
certifying jurisdiction to itselfis not erroneous. See generally, Malak v. Gonzales,
419 F.3d 533, 535 (6th Cir. 2005) (noting that the Board's Practice Manual
"emphasizes that postal or delivery delays do not affect existing deadlines, and parties
should anticipate any delay," even if the filing is made through an overnight or
guaranteed delivery service) (internal marks omitted), cert. denied, 126 S. Ct. 2360
B. Due Process
Holder asserts that the Board's regulations regarding timing and delivery of
appeals violated his due process rights. He contends that the Board should amend its
regulations to allow for notices of appeal to be delivered to and accepted at designated
locations across the country, not solely at the Board's offices in Virginia, or that a
mailbox rule should apply such that notices of appeal should be deemed filed upon
"[T]he procedures employed on appeal must provide appellants with due
process of law." Talamantes-Penalver v. I.N.S., 51 F.3d 133, 135 (8th Cir. 1995). In
Talamantes-Penalver, we reviewed a similar claim, that the ten-day filing period for
a notice of appeal, in effect at that time, was a due process violation for those too
"remote" from the filing location. Id. At the time of that appeal, the Board's
regulations required that a notice of appeal be filed within ten days of the Immigration
Judge's order at one of several various designated locations. Id. at 134-35 n.1.
Talamantes-Penalver had ten days to get the notice of appeal and the receipt of
payment of the filing fee from St. Paul, Minnesota, to Chicago, Illinois. Id. at 134.
We held that there was no due process violation by the Board's requirement that
appeals reach the filing office within ten days. Id. at 135. We analyzed that case
using the factors set forth in Mathews v. Eldrige, 424 U.S. 319 (1976), and we do so
again in this case. In doing so, we look at the claimed "individual interest at stake; the
risk of erroneous deprivation of the interest through the use of the procedure in
question, the value of different or supplemental procedural safeguards; and the interest
of the government in using the current procedures, considering the burdens and costs
of implementing a different procedure." Talamantes-Penalver, 51 F.3d at 135.
While the Board's appeal regulations have changed since Talamantes-Penalver,
the basic analysis remains sound. No due process violation occurs by requiring a
notice of appeal to be filed within thirty days at the Board's office in Virginia. The
2We note that the highest court in this country, the United States Supreme
Court, has one central location where petitions for certiorari must be filed, no matter
from what state or territory the petition originates. While the Supreme Court has a 90-
day filing period, the substantive requirements for filing a petition for certiorari are
much more involved than those for filing a simple, uncomplicated notice of appeal
with the Board.
availability of overnight couriers and priority mail makes delivery methods available
nationwide, and the Board's procedures for accepting even untimely notices of appeal
based on individual unique circumstances bring this regulation within constitutional
requirements. While we noted that a ten-day filing period might be unconstitutional
in certain circumstances, allowing 30 days for a notice of appeal to be delivered from
anywhere in the nation to one central location is not a due process deprivation,
considering the breadth of mailing options available, the relatively low risk of
erroneous deprivation, and the burdens of implementing other procedures. Id. at 136.2
We also see no constitutional need to require that local filing be an option for
filing a notice of appeal. The 30 days allowed by the regulations allow sufficient time
to fill out the brief form required by the Board, send it, and have it arrive in the
Board's office by the required date. In different circumstances, such as if the time to
file an appeal was much shorter, local filing might be a required option to avoid
infringing on an alien's due process rights. See id., at 136 & n.3. However, local
filing would place a much larger burden on the Board if it is attempting to process in
its offices in Virginia the notices of appeal filed in multiple locations across the
country. The filing deadlines and regulations set forth by the Board implementing its
appeal procedures are rationally related to a legitimate governmental interest. The fact
that other alternatives to the filing regulations may be available does not mean that
those in place violate Holder's due process rights. See Gunderson v. Hvass, 339 F.3d
639, 644 (8th Cir. 2003) (noting that the government restriction in question need not
be the least restrictive alternative providing that it was rationally related to a legitimate
governmental interest), cert. denied, 540 U.S. 1124 (2004).
In Talamantes-Penalver, we rejected the contention that a mailbox rule should
be placed into effect by the Board in order to address an alleged due process violation.
51 F.3d at 137. We stated that this postmark or mailbox rule "would not give
sufficient notice to the IJ or the INS that a deportation order is being appealed, as a
notice properly postmarked (and thus deemed filed) might never reach its destination."
Id. at 136. In addition, we noted that "it is not the province of the judiciary to dictate
to an administrative agency the nuts and bolts of what constitutes a 'filing'." Id. at
137. That statement holds true today. The Board's regulations have deemed a filing
to be complete when it is received at the Board's offices, a regulation that we hold
does not violate Holder's due process rights.
C. Equal Protection
Holder further alleges a violation of his constitutional equal protection rights,
claiming that the requirement that notices of appeal be filed only in Virginia
improperly favors filers who reside in that area over others throughout the country.
Even if we assume that the regulation creates such a classification, there is no
violation of Holder's equal protection rights. Non-Virginians are not a suspect class,
and the regulation is subject to rational review, meaning that the regulation is
constitutional so long as it is reasonably related to a legitimate government interest.
See Geach v. Chertoff, 444 F.3d 940, 946 (8th Cir. 2006) (analyzing equal protection
claim affecting aliens using rational basis test); Costner v. United States, 720 F.2d
539, 541 (8th Cir. 1983) (explaining rational basis test). The regulation in question
is reasonably related to the Board's interest in efficiently regulating the nationwide
appeal process. See Henne v. Wright, 904 F.2d 1208, 1215 (8th Cir. 1990) (stating
that one of the legitimate state interests the law in question rationally furthered was
the "state's interest in inexpensive and efficient record keeping"), cert. denied, 498
U.S. 1032 (1991); Costner, 720 F.2d at 542 (noting that when the test is rationality,
the Equal Protection Clause is not violated "merely because the classifications made
by [the state's] laws are imperfect") (internal marks omitted). There was no violation
of Holder's equal protection rights.
Accordingly, we deny the petition for review.


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