This decision should hardly be surprising. Though I was admittedly pretty surprised at the need for the appeal in the first place.
The INS concludes that Oh is a removable alien on January 10, 2003, so she's got 30 days to appeal to the BIA. Counsel for Oh completes the paperwork and mails it via overnight mail (on Airborne Express) on February 5, 2003, which is both more than enough time to ensure timely delivery and is precisely how the BIA suggests that the documents be mailed. But even though the papers are sent via overnight mail, Airborne Express (now swallowed up by DHL) didn't deliver the documents until February 24, 2003, well beyond the 30-day deadline for Oh's appeal.
All of these facts are totally undisputed. Everyone concedes that the documents were indeed sent via next-day mail on February 5. But the BIA still says "tough luck," and dismisses Oh's appeal as untimely. The BIA's unpublished opinion holds that it has no discretion to extend the deadline. Notwithstanding the fact that the BIA's own Practice Manual says that the BIA can indeed excuse late filings "in rare circumstances," and even though the Ninth Circuit had previously stated (in Hernandez-Rivera) that "despite the note of finality sounded by [the deadline], it is not inflexible." Too bad, says the BIA. Appeal dismissed.
To which Judge Fisher rightly responds: "Too bad, BIA. Reversed." Which is precisely the kind of reasonable response you'd expect from this panel, which also included Judges Willie Fletcher and Dorothy Nelson. This is not England in the sixteenth century. This is America. We do not deprive people of their vital liberties -- or at least we shouldn't -- based upon hypertechnical defects that are not their fault. When people act reasonably, as Oh and her counsel did here, we do not say "Well, tough for you. We're deporting you anyway." Any more than we would (or should) deport people if they're walking to the courthouse to file their brief and are hit by a bus or swallowed up by an earthquake. Sure, they could have ridden in a tank or sent multiple copies through multiple independent means in order to ensure that they would meet the deadline notwithstanding various potential pitfalls. But we don't require this. It isn't your fault. We're not going to kick you out of the country when you missed a deadline entirely through the fault of someone else upon whom you reasonably relied. We just don't do that.
Of course, we would have done precisely that to Oh here, since -- after all -- that's what the BIA ordered. But that's the value of review by an independent judiciary. Remember that the next time someone slams courts, the Ninth Circuit, or "activist" judges like Dorothy, Ray and Willie. Sometimes you need the judiciary to get involved and to do what's right. Like here.
