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Liadov v. Mukasey: IMMIGRATION - Board of Immigration Appeals time bar ruling reviewable; courier service failures not rare or extraordinary1Attorney General Mukasey is substituted as respondent pursuant to Rule
43(c)(2) of the Federal Rules of Appellate Procedure.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Vladimir Liadov, et al., *
Michael B. Mukasey, Attorney * Petition for Review of an Order
General of the United States,1 * of the Board of Immigration Appeals.
American Immigration Law *
Foundation, et al., *
Amici on Behalf of Petitioners. *
Submitted: June 14, 2007
Filed: March 14, 2008
Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
LOKEN, Chief Judge.
Vladimir Liadov, his wife Laima, and their children, Agnija and Andrey,
conceded removability and petitioned for asylum, withholding of removal, and relief
2A petition for review must be filed within 30 days of the final order of
removal. 8 U.S.C. § 1252(b)(1). The Liadovs’ timely motion to reconsider did not
toll the time limit in § 1252. Stone v. INS, 514 U.S. 386, 405-06 (1995). Therefore,
we have jurisdiction to review the BIA’s denial of reconsideration but not the initial
order of removal. Boudaguian v. Ashcroft, 376 F.3d 825, 827-28 (8th Cir. 2004).
under the Convention Against Torture (“CAT”). An immigration judge denied relief,
ordered the Liadovs removed to Lithuania, and granted them voluntary departure. The
Board of Immigration Appeals (“BIA”) dismissed their administrative appeal as
untimely by one day. The Liadovs filed a timely motion urging the BIA to reconsider
the dismissal, explaining that their attorney deposited the notice of appeal with an
overnight delivery service two days before the filing deadline and contracted for nextday
delivery. The BIA denied the motion on the ground that “the Board does not
have the authority to extend the time in which to file a Notice of Appeal.”
The Liadovs petitioned for review of the BIA order denying reconsideration.
We granted the parties’ motion to remand to the BIA for further consideration in light
of two intervening circuit court decisions, Sun v. U.S. Dep’t of Justice, 421 F.3d 105
(2d Cir. 2005), and Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005). On remand, the
BIA issued a precedent decision, see 8 C.F.R. § 1003.1(g), again asserting that it
lacked jurisdiction to consider the Liadovs’ untimely appeal, and declining to exercise
its discretionary authority to certify the Liadovs’ case to itself under 8 C.F.R.
§ 1003.1(c). In re Liadov, 23 I & N Dec. 990 (BIA 2006). The Liadovs petition for
judicial review of that order.2 We deny the petition for review.
I. Of Untimely Appeals, Jurisdiction, and Judicial Review
A. The Liadovs seek judicial review of an order of the BIA. The immigration
laws grant the courts of appeals exclusive jurisdiction to review a “final order of
3Prior to the Immigration and Nationality Act of 1952, there was no judicial
review of deportation orders, other than by habeas corpus. See Shaughnessy v.
Pedreiro, 349 U.S. 48, 50 (1955). In 1961, Congress made review in the courts of
appeals the exclusive procedure “to abbreviate the process of judicial review” and
thereby “frustrate . . . dilatory tactics.” Foti v. INS, 375 U.S. 217, 225 (1963).
removal.” 8 U.S.C. § 1252(a)(1), (5).3 A BIA order denying reconsideration is
reviewable as a final order of removal. See Esenwah v. Ashcroft, 378 F.3d 763, 765
(8th Cir. 2004), cert. denied, 544 U.S. 962 (2005). But we may review a final order
of removal only if the alien “has exhausted all administrative remedies available . . . as
of right.” 8 U.S.C. § 1252(d)(1). “[E]xhaustion of administrative remedies is required
where Congress imposes an exhaustion requirement by statute.” Coit Independence
Joint Venture v. FSLIC, 489 U.S. 561, 579 (1989).
It is well-settled in the circuits, with strong recent support from the Supreme
Court, that an alien whose appeal to the BIA was dismissed as untimely is precluded
from judicial review of the merits of the removal order because he failed to properly
exhaust an available administrative remedy. See Sswajje v. Ashcroft, 350 F.3d 528,
532 (6th Cir. 2003), and cases cited; cf. Woodford v. Ngo, 126 S. Ct. 2378, 2385-86
(2006). In the terminology of our habeas corpus jurisprudence, the alien’s procedural
default before the BIA created a procedural bar to judicial review. The reasons for
this rule are apparent. The exhaustion requirement recognizes the BIA’s primary
responsibility to exercise the discretionary powers Congress has delegated, and it
provides the agency “an opportunity to correct its own mistakes with respect to the
programs it administers . . . .” McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
These purposes would be frustrated if an alien could avoid the exhaustion requirement
by filing an untimely administrative appeal and then seeking direct judicial review of
the order of removal. See Woodford, 126 S. Ct. at 2384-87.
The Attorney General’s regulations grant aliens the right to appeal an order of
removal to the BIA. See 8 C.F.R. § 1003.1(b)(2). The notice of appeal to the BIA
“shall be filed . . . within 30 calendar days” of the immigration judge’s oral or written
decision. 8 C.F.R. § 1003.38(b). In this case, the Liadovs’ notice of appeal was filed
one day late. The BIA dismissed their appeal, ruling that “[n]either the statute nor the
regulations grant us the authority to extend the time for filing appeals.” Liadov, 23
I & N Dec. at 993. That ruling was consistent with BIA decisions dating back at least
to 1948. See, e.g., In re Dirphys, 3 I & N 223 (BIA 1948); In re G.Z., 5 I & N Dec.
295 (BIA 1953); In re Escobar, 18 I & N Dec. 412 (BIA 1983). Confirming this longstanding
agency rule, the Attorney General ruled in 2002 that “[t]his deadline is
mandatory and jurisdictional.” In re Jean, 23 I & N Dec. 373, 378 (BIA 2002), citing
Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir. 1993).
The BIA’s ruling that it lacks “jurisdiction” to consider an untimely appeal from
a final order of removal has the effect of depriving the alien of judicial review that is
otherwise mandated by statute for failure to exhaust this available administrative
remedy. In these circumstances, a reviewing court necessarily has jurisdiction to
review the agency’s jurisdictional ruling. See generally “[BIA]: Procedural Reforms
to Improve Case Management,” 67 Fed. Reg. 54878, 54882-85 (Aug. 26, 2002). The
Liadovs and supporting amici argue that the BIA’s ruling is inconsistent with agency
practice and is contrary to decisions in four circuits, including our own decision in
Atiqullah v. INS, 39 F.3d 896, 898 (8th Cir. 1994), which, they contend, should be
B. Federal courts have often said that statutes and court rules establishing time
limits are “mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220,
228-29 (1960). In recent cases, the Supreme Court has distinguished between time
constraints that limit a court’s subject matter jurisdiction, and “claim-processing rules”
that may be mandatory but do not limit the tribunal’s jurisdiction and therefore may
be waived or forfeited. See Eberhart v. United States, 546 U.S. 12, 13-19 (2005).
However, in Bowles v. Russell, 127 S. Ct. 2360, 2365-66 (2007), decided after oral
argument in this case, the Court adhered to prior cases declaring that statutes
prescribing the time in which parties may file cases in the lower federal courts are
truly jurisdictional, that is, they are congressional limits on our subject matter
jurisdiction. In so holding, the Court overruled two prior cases that had created
equitable, “unique circumstances” exceptions to the statute prescribing the time in
which a notice of appeal to a court of appeals must be filed, Harris Truck Lines, Inc.
v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962), and Thompson v. INS, 375 U.S.
In Atiqullah, citing Ninth Circuit authorities, we held that the time limit for
filing a notice of appeal to the BIA is “mandatory and jurisdictional” except in
“unique circumstances,” such as when the alien has been misled by the agency into
an untimely filing. 39 F.3d at 898. The Ninth Circuit first adopted this “unique
circumstances” exception in Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.
1980), relying entirely on Harris and Thompson, the cases explicitly overruled in
Bowles. Likewise, the Ninth Circuit in Oh, 406 F.3d at 613, and the Second Circuit
in Sun, 421 F.3d at 109, the decisions that prompted the initial remand in this case,
relied on Hernandez-Rivera in superimposing a judicial exception on the BIA’s
determination of its own jurisdiction. We conclude that, after Bowles, Atiqullah is no
longer no longer controlling precedent. Therefore, we must reexamine whether a
timely appeal to the BIA is mandatory or jurisdictional, in which case judicial review
is procedurally barred by the Liadovs’ failure to exhaust with a timely appeal. We did
not reach this question in denying the petition for review in Holder v. Gonzales, 499
F.3d 825, 829 n.1 (8th Cir. 2007).
In Bowles, the Supreme Court explained that whether a statutory time limit is
jurisdictional is a question of legislative intent because Congress decides when, and
under what conditions, federal courts can hear cases. “Because this Court has no
authority to create equitable exceptions to jurisdictional requirements, use of the
‘unique circumstances’ doctrine is illegitimate.” 127 S. Ct. at 2365-66. When dealing
with a time limit established by administrative agency regulation, the inquiry is more
4Applying the distinction fashioned in Eberhart, the Tenth Circuit held in
Huerta v. Gonzales, 443 F.3d 753, 755-56 (2006), that the time limit in 8 C.F.R.
§ 1003.38(b) is mandatory but not jurisdictional. We agree.
5See H.R. Rep. No. 1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1687-
88: “[The Committee believes] that the Board [of Immigration Appeals] has well
served its purpose and has greatly contributed to a fair and equitable administration
of justice in immigration, nationality, and naturalization cases. [We refrain] at this
time from proposing to change the status of the Board into a statutory body.”
layered, but the first question is whether Congress mandated the time limit as a limit
on the agency’s jurisdiction. If so, then we must enforce the time limit without
exception under Bowles. If not, then we must review the agency’s declaration that the
time limit is “jurisdictional” (or mandatory)4 under our customary deferential
standards for reviewing administrative actions.
1. The BIA is not a creature of statute. See INS v. Doherty, 502 U.S. 314, 327
(1992). Its predecessor was established by the Attorney General in 1940, shortly after
Congress transferred immigration functions from the Department of Labor to the
Department of Justice. See 5 Fed. Reg. 2454 (July 3, 1940). Thus, the BIA’s
“jurisdiction” is defined by the powers delegated to it by the Attorney General, who
has broad power to establish regulations governing immigration proceedings. See 8
U.S.C. § 1103(g)(2); 8 C.F.R. § 1003.1(a)(1). The delegation must of course be
consistent with the statutes defining the Attorney General’s authority. “Although it
is true that ‘agencies should be free to fashion their own rules of procedure,’ Vermont
Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S.
519, 543 (1978), those regulations must be ‘reasonably related to the purposes of the
enabling legislation.’ Mourning v. Family Publications Service, Inc., 411 U.S. 356,
369 (1973).” Oberstar v. FDIC, 987 F.2d 494, 504 (8th Cir. 1993).
Although never explicitly authorized by statute, the BIA’s long-standing review
of deportation (now removal) orders has not gone unnoticed by Congress.5 To curb
6See Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, § 604(d)(5)(A)(iv), 110 Stat. 3009-546, 3009-694 (1996).
perceived abuses, § 545(d) of the Immigration Act of 1990 directed the Attorney
General to “issue regulations with respect to . . . (2) the time period for the filing of
administrative appeals in deportation proceedings . . . .” Pub. L. 101-649, § 545(d),
104 Stat. 4978, 5066 (1990). The House Conference Report suggests that a
mandatory time limit was not intended:
Unless the Attorney General finds reasonable evidence to the contrary,
the regulations must state that administrative appeals be made within 30
days, except that the appellate body may, upon motion, extend such
period up to 90 days, if good cause is shown by the movant.
H.R. Rep. No. 101-955 at 133 (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6798
(1990). In regulations promulgated in 1992 to implement the 1990 Act, the Attorney
General instead maintained the ten day appeal period previously in place. See 57 Fed.
Reg. 11568, 11568-70 (Apr. 6, 1992). Given this legislative and administrative
history, we do not construe the directive in the 1990 Act as requiring the Attorney
General to promulgate a mandatory time limit. Cf. Socop-Gonzalez v. INS, 272 F.3d
1176, 1190 (9th Cir. 2001) (en banc).
In the extensive 1996 amendments to the statutes governing asylum, Congress
enacted a specific time limit for appeals to the BIA: “any administrative appeal shall
be filed within 30 days of a decision granting or denying asylum, or within 30 days
of the completion of removal proceedings . . . whichever is later.” 8 U.S.C.
§ 1158(d)(5)(A)(iv).6 Without question, the statute trumped the ten-day appeal period
previously adopted in the regulations. But applying the analysis mandated by Bowles,
did Congress also intend that this statutory time limit be mandatory, in other words,
not subject to exceptions? In 8 U.S.C. § 1158(a)(2)(D), enacted at the same time,
Congress provided that an application for asylum must be filed within one year of
arrival absent “extraordinary circumstances relating to the delay.” There is no such
statutory exception in § 1158(d)(5)(A)(iv). On the other hand, this time limit for
asylum appeals does not apply to administrative appeals from the denial of
withholding of removal or relief under the CAT. See Khan v. U.S. Dep’t of Justice,
494 F.3d 255, 258-59 (2d Cir. 2007). As all asylum applications are deemed by the
agency to include a request for withholding of removal, 8 C.F.R. § 1208.3(b), it makes
little sense to construe § 1158(d)(5)(A)(iv) as a mandatory directive after concluding
that Congress in 1990 did not intend to otherwise constrain the Attorney General’s
procedural discretion in this fashion. Though the question is not free from doubt, we
conclude that Congress did not intend a mandatory directive; therefore, we must
examine the BIA’s jurisdictional ruling from the familiar perspective of whether it
was an abuse of the agency’s discretion to resolve procedural issues “not governed by
specific statutory commands.” INS v. Abudu, 485 U.S. 94, 110 (1988).
2. An agency’s interpretation of its procedural regulations is entitled to
substantial deference so long as it reflects a “permissible interpretation” of the
governing statute. Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 866 (8th Cir. 2002).
The BIA has declared for more than fifty years that the regulation prescribing the time
within which an administrative appeal must be filed, now found at 8 C.F.R.
§ 1003.38(b), is mandatory and may not be extended by the BIA. See Dirphys, 3 I &
N Dec. at 224. The Supreme Court has approved the adoption of strict filing deadlines
in other contexts:
Filing deadlines, like statutes of limitations, necessarily operate harshly
and arbitrarily with respect to individuals who fall just on the other side
of them, but if the concept of a filing deadline is to have any content, the
deadline must be enforced.
United States v. Locke, 471 U.S. 84, 101 (1985). Moreover, Congress in recent years
has taken repeated action to expedite removal proceedings and curb perceived abuses,
reinforcing the presumption that the Attorney General is acting in accordance with his
legislative mandate when he imposes time limits for exhaustion that serve the
agency’s interests in effective and efficient administration. Cf. Weinberger v. Salfi,
422 U.S. 749, 766 (1975). Accordingly, if the BIA on behalf of the Attorney General
construes this regulation as a truly mandatory time limit (regardless of whether it is
also “jurisdictional”), this is not an abuse of the agency’s substantial procedural
discretion, absent a due process violation in a particular case. Thus, the relevant
question is whether the BIA construes this regulatory time limit as truly mandatory.
3. Beginning with regulations promulgated under the Immigration and
Nationality Act of 1952, the agency has reserved the powers (I) to certify deportation
and removal cases to itself, and (ii) to “reopen or reconsider on its own motion any
case in which it has rendered a decision.” 8 C.F.R. §§ 1003.1(c), 1003.2(a), published
as 8 C.F.R. §§ 3.1(c) and 3.2 in 23 Fed. Reg. No. 231, at 9117-18 (Nov. 26, 1958).
These regulations -- § 1003.1(c) and § 1003.2(a) -- apply to a broad universe of cases
subject to the BIA’s jurisdiction, and the agency has invoked them, though
infrequently, in disparate situations. For example, in In re Slade, 10 I & N Dec. 128
(BIA 1962), the BIA took jurisdiction of an untimely appeal by certification “in view
of the importance of the issue” involving a new section of the INA. In In re Chavarri-
Alva, 14 I & N Dec. 298 (BIA 1973), the BIA refused to self-certify so as to restore
an expired voluntary departure privilege because its review of the record demonstrated
that the untimely appeal had “no merit.” On the other hand, in In re Iberia Airlines
Flight No. 1B 951, 19 I & N Dec. 768 (BIA 1988), the BIA granted certification and
sustained the untimely appeal of a foreign air carrier from an order imposing
In In re J-J, 21 I & N Dec. 976, 984 (BIA 1997), the BIA stated that it has
“limited” discretionary power to reopen or reconsider cases on its own motion under
§ 1003.2(a), but cautioned that this power “is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations.” In this case, the BIA
relied on J-J in stating that it may certify a case to itself under § 1003.1(c) in
“exceptional circumstances,” thus confirming that the two regulations serve
complementary purposes. Liadov, 23 I & N Dec. at 993. In addition to relying on the
judicial “unique circumstances” doctrine of Atiqullah, the Liadovs argue that the BIA
abused its discretion in refusing to apply its own “exceptional circumstances”
exception to excuse their untimely filing. The government responds that we “lack
jurisdiction to review” the BIA’s refusal to certify this case to itself under § 1003.1(c)
because that decision is “committed to agency discretion” and the regulation “provides
no meaningful standard” for measuring the agency’s exercise of discretion. See
generally 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830 (1985).
The en banc court recently reviewed a BIA order refusing to exercise its
discretion under 8 C.F.R. § 1003.2(a) to reopen a proceeding sua sponte in response
to an alien’s untimely motion to reopen. Based upon (1) the total absence of statutory
standards, (2) the absence of meaningful guidance for applying the “exceptional
circumstances” standard in the regulation to the variety of circumstances in which the
BIA may invoke or may be asked to invoke this discretionary power, and (3) the
absence of a “settled course of adjudication” that could establish a meaningful
standard, we joined ten other circuits in holding that the order was an unreviewable
action committed to agency discretion by law. Tamenut v. Mukasey, ___ F.3d ___,
No. 05-4418, Slip op. at 6-8 (8th Cir. Mar. 11, 2008).
In this case, we consider the BIA’s refusal to invoke 8 C.F.R. § 1003.1(c), the
complementary self-certification regulation, in response to the Liadovs’ timely motion
to reopen. The effect of this ruling is to bar judicial review of the removal order
because of the Liadovs’ failure to exhaust this administrative remedy. Thus, the
situation is different than in Tamenut, where the alien’s right to judicial review of the
final order of removal had expired. Had the BIA declared that the time limit in
§ 1003.38(b) is non-mandatory and subject to an exception for “extraordinary
circumstances,” we would review whether its decision not to invoke the exception in
a particular case was arbitrary and capricious. See Lara v. Trominski, 216 F.3d 487,
497-98 (5th Cir. 2000); Oberstar, 987 F.2d at 504; Union Flights, Inc. v.
Administrator, FAA, 957 F.2d 685, 687-88 (9th Cir. 1992). The review would be
conducted, not under the judicially-created “unique circumstances” doctrine, but for
abuse of the agency’s discretion in applying its own exception to a non-mandatory
time limit. However, both the BIA and the Attorney General have steadfastly
maintained that the time limit is mandatory, and the BIA’s reference to its selfcertification
authority in this case was a reaction to the unwarranted judicial demand
for an exception imposed by Oh and Sun rather than a change of agency position.
Therefore, the refusal to self-certify may not be reviewed on the ground that the
agency itself treats the appeal time limit as non-mandatory.
If the BIA continues to maintain that its appeal time limit is mandatory but
routinely considers whether to use its self-certification authority to revive an untimely
appeal because of “extraordinary circumstances,” there might well develop a “settled
course of adjudication” that would provide a meaningful standard and thereby make
the agency’s refusal to self-certify in this context judicially reviewable under the
Heckler v. Chaney line of cases. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d
Cir. 2003); see also INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996). But there is no
such settled course at this time. Thus, under Tamenut, the BIA’s refusal to self-certify
was an unreviewable action committed to the agency’s discretion.
C. Alternatively, if the BIA’s order refusing to self-certify is subject to judicial
review, we conclude there was no abuse of discretion. The Liadovs contend that the
BIA abused its discretion by failing to certify the case to itself because the failure of
a courier to meet its contractual commitment of next-day delivery was an “exceptional
circumstance” warranting relief under 8 C.F.R. § 1003.1(c). Noting the Supreme
Court upheld strict enforcement of filing deadlines in Locke, the BIA rejected this
[A]lthough a delivery delay might excuse untimeliness in a rare
case, such as where the delivery was very late or caused by ‘rare’
circumstances, the [BIA] Practice Manual makes clear that, in general,
such delays do not affect deadlines. The parties cannot point to such
delays to excuse untimely filings, but should instead anticipate the
possibility that the guaranteed delivery might fail. In a case such as the
one before us, where the appeal was placed with an overnight courier
service, at most, 48 hours before the filing deadline, we do not find the
fact that delivery was a day or 2 past the ‘guaranteed’ date to be a ‘rare’
circumstance that would excuse the late filing. Such delays are not
Meaningful filing deadlines are as critical to the smooth and fair
administration of the Board as they are to the courts, particularly given
the extraordinary volume of appeals, motions, and other filings that must
be efficiently processed, tracked, and adjudicated. In 1996, recognizing
the importance of both enforcing such deadlines and simultaneously
allowing the parties sufficient time to file appeals, we extended the
deadline for filing appeals from 10 days to 30 days. . . . This is a fair and
generous filing period and one that the parties must take seriously. The
filing time was not extended to simply ‘push the window’ of last-minute
filings 20 days forward.
Liadov, 23 I & N Dec. at 992. This is a reasonable application of a filing deadline that
Congress in 1990 directed the agency to adopt to curb abusive delays in removal
proceedings. We have invoked the judicially-created “unique circumstances” doctrine
to justify a late-filed appeal when the alien was “misled by the words or conduct of
the court.” Atiqullah, 39 F.3d at 898; see Omao v. Gonzales, 185 Fed. App’x 562,
562-63 (8th Cir. 2006) (unpublished). Seeking to come within the purview of those
cases, the Liadovs argue they were misled by the BIA Practice Manual’s
recommendation that appellants use overnight delivery services to ensure timely
filings. But even if Atiqullah remained good law, the shoe will not fit. The Practice
Manual unambiguously states that “the failure of a courier or overnight delivery
service does not excuse parties from meeting filing deadlines,” § 3.1(a)(iv), and that
“[p]ostal or delivery delays do not affect existing deadlines, nor does the Board excuse
untimeliness due to such delays, except in rare circumstances,” § 3.1(b)(iv). Thus, the
failure of a courier to make timely delivery is not “an extraordinary circumstance that
would justify intervention by this court into the Board’s exercise of discretion.”
Anssari-Gharachedaghy v. INS, 246 F.3d 512, 515 (6th Cir. 2000).
II. Due Process
Finally, the Liadovs argue that the BIA’s filing deadline and self-certification
procedure violated their rights to due process because a procedure that does not
forgive excusable overnight delivery delays denies alien appellants a meaningful
opportunity to be heard. We disagree. In Talamantes-Penalver v. INS, 51 F.3d 133
(8th Cir. 1995), we rejected a claim that the prior ten-day time limit for filing appeals
to the BIA violated due process. As the BIA noted, by increasing the time limit to
thirty days, the agency acted to ensure that aliens have sufficient time to appeal. In
Holder, 499 F.3d at 829-30, we rejected a due process attack on the current procedure
by an alien whose notice of appeal to the BIA was filed one day late because he
transposed two zip code numbers on the mailing label of his last-minute filing. Here,
the last-minute filing was delayed by a courier hired by the petitioners. The difference
has no due process significance. Holder is controlling. The Liadovs’ reliance on
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), is misplaced. That
case involved a failure by the BIA to exercise its discretion, not “the manner in which
discretion was exercised.” 347 U.S. at 268.
The petition for review is denied.
COLLOTON, Circuit Judge, concurring in part.
I conclude that the BIA’s decision whether to assert jurisdiction by certification
pursuant to 8 C.F.R. § 1003.1(c) is committed to agency discretion by law, because
there is “no law to apply.” See Heckler v. Chaney, 470 U.S. 821, 830 (1985);
Tamenut v. Mukasey, No. 05-4418, slip op. at 8 (8th Cir. Mar. __, 2008) (en banc) (per
curiam); see also Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005);
Saldana-German v. Ashcroft, 116 F. App’x 927 (9th Cir. 2004). I therefore agree with
the ultimate conclusion reached in Parts I.B.2 and 3 of the opinion of the court.
Insofar as Liadov seeks judicial review of the BIA’s refusal to certify his case, I would
dismiss the petition for lack of jurisdiction. See ICC v. Brotherhood of Locomotive
Eng’rs, 482 U.S. 270, 282 (1987) (describing 5 U.S.C. § 701(a)(2) as a “limitation to
the general grant of jurisdiction contained in 28 U.S.C. § 1331”). I agree with Part II
of the opinion, concluding that Liadov’s due process claim is without merit, and I
concur in the denial of the petition for review on that point.
I decline to join Part I.B.1 of the opinion, which states that the 30-day statutory
time limit for filing an administrative appeal in an asylum case is not “jurisdictional”
within the meaning of Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007). As in Holder
v. Gonzales, 499 F.3d 825, 829 n.1 (8th Cir. 2007), it is unnecessary to decide that
question, because the BIA has maintained steadfastly that the time limit is mandatory,
and dismissed Liadov’s administrative appeal on that basis. The court’s analysis also
strikes me as unconvincing. Congress in 1996 directed that the Attorney General
establish a time limit for asylum appeals, with no mention of exceptions: “[A]ny
administrative appeal shall be filed within 30 days of a decision granting or denying
asylum.” 8 U.S.C. § 1158(d)(5)(A)(iv). Cf. Bowles, 127 S. Ct. at 2366 (“[W]hen an
appeal has not been prosecuted in the manner directed, within the time limited by the
acts of Congress, it must be dismissed for want of jurisdiction.”) (internal quotation
omitted). That a congressional committee report, pertaining to legislation enacted by
a different Congress six years earlier, expressed desire that the Attorney General
establish a non-mandatory time limit gives little reason to doubt the mandatory
language of the text of the 1996 statute. See Waterkeeper Alliance, Inc. v. EPA, 399
F.3d 486, 508 (2d Cir. 2005) (“[P]rior legislative history is a hazardous basis for
inferring the intent of a subsequent Congress.”). Nor does the fact that the Justice
Department deems asylum applications also to be requests for withholding of removal,
see 8 C.F.R. § 1208.3(b), principally to avoid duplication of effort, see Filing of
Asylum Requests After Commencement or Completion of Deportation Proceedings,
43 Fed. Reg. 40879 (proposed Sept. 13, 1978), make it illogical for Congress in 1996
to have enacted a limitation on the agency’s jurisdiction with respect only to the
timing of asylum appeals. Congress need not address all problems at once. And it is
not implausible that Congress may have wanted the Attorney General to retain greater
flexibility in fashioning regulatory time limits applicable to aliens who purport to meet
the higher standard for withholding of removal. I would therefore leave this question
for a case in which it is necessary to the decision.
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