LIADOV

Cite as 

 (BIA 2006)                                Interim Decision #3540




               In re Vladimir LIADOV et al., Respondents
                         File A79 562 410 - Bloomington
                                File A72 414 726
                                File A72 414 727
                                File A72 414 728
                            Decided September 12, 2006
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Neither the Immigration and Nationality Act nor the regulations grant the Board of
  Immigration Appeals authority to extend the 30-day time limit for filing an appeal to the
  Board.

(2) Although the Board may certify a case to itself under 

(c) (2006) where
  exceptional circumstances are present, a short delay by an overnight delivery service is
  not a rare or extraordinary event that would warrant consideration of an untimely appeal
  on certification.
FOR RESPONDENTS: Jerzy Guzior, Esquire, Minneapolis, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kevin Lashus, Assistant
District Counsel

BEFORE: Board Panel: OSUNA, Acting Vice Chairman; HOLMES and HURWITZ,
Board Members.

HURWITZ, Board Member:

  This case was previously before us on February 18, 2005, when we
dismissed as untimely the respondents’ appeal from the Immigration Judge’s
January 13, 2004, decision. On May 10, 2005, we denied the respondents’
motion to reconsider, finding that the late filing of their appeal was not
excused by the fact that the overnight delivery service they used did not timely
deliver their appeal, as guaranteed.
  The matter is now before us pursuant to the September 28, 2005, order of
the United States Court of Appeals for the Eighth Circuit. The parties in court
agreed to remand the case to us for further consideration in light of the
decisions in Oh v. Gonzales, 

 (9th Cir. 2005), and Zhong Guang
Sun v. U.S. Dep’t of Justice, 

 (2d Cir. 2005). In Oh v. 

 the Ninth Circuit held that we abused our discretion in finding that we
did not have authority to extend the time in which an alien must file his Notice

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of Appeal from a Decision of an Immigration Judge (Form EOIR-26) (“Notice
of Appeal”). In that case, the Immigration Judge issued his decision on
January 10, 2003, triggering the 30-day deadline, and the alien mailed her
Notice of Appeal by overnight mail on February 4, 2003.
  In Sun v. U.S. Dep’t of 

 the Second Circuit agreed with the
Ninth Circuit that an overnight delivery service’s failure to timely deliver a
Notice of Appeal can constitute an extraordinary circumstance excusing an
alien’s failure to comply with the 30-day time limit for filing an appeal. The
alien in that case placed his Notice of Appeal with an overnight delivery
service 1 day before the deadline for filing the appeal. The court stated that
an alien’s use of an overnight delivery service is recognized as a way of
insuring timely delivery and “strongly suggests to us that the failure of such
an effort to achieve timely filing may well, indeed, fall within the realm of the
‘extraordinary.’” 

. The court did not find that such an extraordinary
circumstance existed in that case, but rather remanded the record for us to
reconsider the issue.
  In the case now before us, the respondents had until February 12, 2004, to
file their Notice of Appeal, and it was not placed in overnight mail until
February 10, 2004, at the earliest. The Federal Express tracking slip indicates
that it was sent for “Priority Overnight” delivery on February 11, 2004,
guaranteed for delivery on February 12, the filing deadline. It was not
delivered until February 13, 2004.
  The regulations provide that a Notice of Appeal “shall be filed directly with
the Board of Immigration Appeals within 30 calendar days” after an
Immigration Judge renders a decision. 

(b) (2006).
Furthermore, in cases involving applications for asylum, the time for filing
administrative appeals is also set by statute. Section 208(d)(5)(A)(iv) of the
Immigration and Nationality Act, 

(d)(5)(A)(iv) (2000),
provides that “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 before an immigration judge under section 240,
whichever is later.”
  The Board of Immigration Appeals Practice Manual (“Practice Manual”),
http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm, which also
addresses the issue of filing appeals, emphasizes the importance of timely
filings. It clearly states that an appeal or motion is not deemed filed until it is
received by the Board and that the Board does not observe the “mailbox” rule.
See 

 § 3.1(a)(i), at 31 (July 30, 2004). As noted by the Ninth Circuit in Oh
v. 

, the Practice Manual encourages parties to use
courier and overnight delivery services to ensure timely filing, but it leaves
open the possibility that delivery delays could, in “rare circumstances,” excuse
untimely filings. Practice Manual, supra, § 3.1(b)(iv), at 34; see also Zhong

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Guang Sun v. U.S. Dep’t of 

. However, the Practice
Manual also states that “the Board strongly recommends that parties file as far
in advance of the deadline as possible.” Practice Manual, supra, § 3.1(b), at
33.
  Moreover, in two places the Practice Manual specifically cautions that use
of an overnight delivery service does not mean that failing to meet filing
deadlines will be excused. According to § 3.1(a)(iv), “the failure of a courier
or overnight delivery service does not excuse parties from meeting filing
deadlines.” Id. § 3.1(a)(iv), at 32. In addition, § 3.1(b)(iv) provides, in
pertinent part, as follows:

     Delays in delivery.—Postal or delivery delays do not affect existing deadlines, nor
     does the Board excuse untimeliness due to such delays, except in rare circumstances.
     Parties should anticipate all Post Office and courier delays, whether the filing is made
     through first class mail, priority mail, or any overnight or other guaranteed delivery
     service.

Id. § 3.1(b)(iv), at 34.
  Thus, although a delivery delay might excuse untimeliness in a rare case,
such as where the delivery was very late or caused by “rare” circumstances,
the 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
“extraordinary” events.
  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. See Executive Office for Immigration
Review; Motions and Appeals in Immigration Proceedings; 

, 18,908 (Apr. 29, 1996) (codified at 

(b) and
subsequently recodified at 

(b)). 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.
  The Supreme Court has clearly held that filing deadlines must be strictly
applied. United States v. Locke, 

 (1985). While recognizing that

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such deadlines “necessarily operate harshly and arbitrarily with respect to
individuals who fall just on the other side of them,” the Court has emphasized
that if the deadlines are to have any meaning, they must be enforced. Id.
at 101. According to the Court, “A filing deadline cannot be complied with,
substantially or otherwise, by filing late–even by one day.” Id.
  The regulations governing appeals to the Board, the statute governing
administrative appeals in asylum cases, and the authority of the Supreme
Court all require that filing deadlines be strictly enforced and thus that appeals
be timely filed. Neither the statute nor the regulations grant us the authority
to extend the time for filing appeals. We therefore do not agree with the
court’s suggestion in Oh v. 

 that we have the authority to
extend the appeal time. See Matter of Ponce de Leon, 

(BIA 1996; A.G., BIA 1997) (stating that we only have such authority as is
provided by statute or delegated to us by the Attorney General in the
regulations).
  Where a case presents exceptional circumstances, the Board may certify a
case to itself under 

(c) (2006). See generally Matter of J-J-,

 (BIA 1997). However, short delays by overnight delivery
services, while certainly not the norm, are not in and of themselves “rare” or
“extraordinary” events, and appellants must take such possibilities into
account and act accordingly.
  In Oh v. Gonzales, the untimeliness of the alien’s appeal could have been
deemed to have resulted from “rare circumstances,” which might warrant our
taking the case on certification, particularly as that case did not involve an
attempted “last-minute” filing. By contrast, the respondents in this case
waited until the near “eleventh hour” to place their appeal in the hands of an
overnight delivery service. The delivery service missed its guaranteed
delivery date by, at most, 2 days, although it appears more likely that it was
late by 1 day. Although the respondents missed their appeal deadline by only
1 day, they have not established any “rare” or “extraordinary” events that
required waiting until the last day or 2 of the mandated filing period and
relying so completely on the delivery company’s overnight guarantee.
  The respondents’ appeal was not timely filed. The circumstances presented
are not such that we would consider this case on certification under the
provisions of 

(c). Accordingly, we will again dismiss the
appeal as untimely.
  ORDER: The respondents’ appeal is dismissed.




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