It's not that Judge Milan Smith didn't write a totally respectable majority opinion. He did. One that garners the support of Judge Siler, sitting by designation from the Sixth Circuit, and hence is the law of the Ninth Circuit. The BIA hasn't adopted the mailbox rule and hence requires the Notice of Appeal to be received on time; otherwise, the appeal is dismissed. That's its rule.
Sure, the petitioner here presents undisputed evidence that she sent the Notice of Appeal via USPS overnight mail well in time to be received by the deadline, and the USPS admits that it messed up and didn't deliver the filing on time. Too bad for you. Appeal dismissed. Sure, the BIA says that it can (and can) depart from that harsh rule on its own initiative if it wants to. But it doesn't feel like it here. So there's nothing you can do. You lose.
That's an internally consistent decision. It makes doctrinal sense. A rule's a rule. The fact that you get thrown out of the United States forever because the USPS messed up is, well, tough.
But Judge Kleinfeld's dissent is a perfect example of a different type of reasoning; in a way, a different type of judging. Yes, Judge Kleinfeld follows doctrine, and principles, and the law. But he does so, in my view, with a keen understanding of the way things work, as well as the practical consequences and underpinnings of the rules at issue. (In another context, you might even say that Judge Kleinfeld has "empathy" -- though Andy and his chambers might cringe at using that particular word.)
I'll let Judge Kleinfeld speak for himself, as I strongly doubt that my words could do any better than his. Here's part of what he says, and which I found incredibly persuasive:
"The BIA . . . held that 'short delays by overnight delivery services' are not 'extraordinary,' so 'appellants must take such possibilities into account and act accordingly.' The only places notices [of appeal in BIA cases] can be filed is Falls Church, Virginia, so evidently 'act accordingly' means fly to one of the D.C. area airports or sent the notice at some unknown and unpredictable time prior to the deadline so that the BIA would think the delivery service delay 'extraordinary.' . . .
All of the thirty days [in which to file the Notice of Appeal] are likely to be essential. Aliens’ appeals are not, by and large, handled by giant spare-no-expense law firms, in which a partner can command a senior associate who can command a junior associate to have something on his desk by 9:00 A.M. Monday without fail, and whatever expenses are necessary to accomplish that will be borne. The record in Iriguyen-Briones describes the details of a typical case, and there is no reason to doubt that they are typical. The alien had lost his case before the IJ pro se, just before Christmas on December 18, and came to a lawyer’s office right after New Year’s, January 4. The lawyer could not do anything without listening to the Immigration Court’s tapes (not yet transcribed, of course), and needed a retainer before investing the time to do so. The alien needed a few days to raise some money, came in with enough the following Monday, counsel got an appointment with the Immigration Court to listen to the tapes Thursday, and drove the 45 miles to the court. Counsel then researched the applicable law necessary to formulate the notice of appeal on that day and the next (Friday) and prepared the notice. Monday was Martin Luther King day, so counsel drove to the post office herself first thing in the morning Tuesday, and sent the papers express mail for guaranteed delivery Wednesday, which is when they were due. She did not drop the ball, the post office did, and as is common, all thirty days were reasonably necessary for the task (too short, actually—the tapes ran longer than the time the Immigration Court had for counsel to listen to them on Thursday before the next lawyer’s appointment).
The fundamental requiste of due process of law is the opportunity to be heard. The interest at stake in immigration cases, as in many others, is very important. Though some are frivolous, some are an alien's only chance to avoid unjustified destruction of his family or even torture and death in some benighted country. Due process of law requires that the government refrain from destroying life, liberty or property with fundamentally unfair procedure. It does so if it denies a person an opportunity within his control to be heard. In these two cases, that is what it did. What is worse, What is worse, the government’s important interest in proceeding expeditiously with these cases and requiring compliance with reasonable time limits can easily be protected, without subjecting aliens to the risk of losing their appeals to bad weather or post office error. All
it need do is what courts and private companies routinely do: allow people to email their notices of appeal. It is a cruel irony that the Board publishes the manual that lawyers are supposed to use as guidance on the internet, yet pretends the internet does not exist when it comes to receiving papers as opposed to distributing them."
When I was clerking on the Ninth Circuit, just after graduating law school, I used to cringe when my judge would edit my drafts -- which were heavy on caselaw and doctrinal argument -- with a page or two of pure prose, without any citations whatsoever. I've grown up since then. I realize now that this is often what being a judge is about. It's not all sterile recitation of precedent. It's about people. About institutions. About what's right. Or at least that's part of it, and a part that can't -- or at least shouldn't -- be overlooked.
So I like that. Particularly since that's something I've come to understand -- at least more fully -- only as I've (hopefully) grown.
So when Judge Kleinfeld says: "Hey, BIA, we expressly told you over fifteen years ago that you should let people file notices of appeal somewhere other than in Falls Church, Virginia, and there are plenty of places nowadays that use electronic filing and this fancy thing called the internet," those facts may perhaps be doctrinally irrelevant, but they still matter.
Yes, the BIA could constitutionally create a rule that says: "You must mail your Notice of Appeal within 15 days, and with no exception make sure it gets here within 30 days." And, as a practical matter, that may be what the current rule ("It's gotta get here within 30 days") actually means.
But I think that when a party does something -- as here -- that's totally reasonable, that we see every day, and that we might ourselves do, and someone gets deprived of a truly fundamental liberty as a result, there's another legitimate path. The one that Judge Kleinfeld took. And the one that seems right to me.
So I'm with you, Andy. One vote among the billions that admittedly don't count. But I'm still with you. Your sage wisdom in this one seems exactly right to me.