Philadelphia Immigration Lawyer Blog

On January 31, 2008, the 6th Circuit Court of Appeals granted an asylum applicant’s Petition for Review in an interesting case involving the use of Federal Express to send a Notice of Appeal to the Board of Immigration Appeals. The Notice of Appeal was sent on time but it wasn’t received by the Board of Immigration Appeals on time. The case is Vasquez Salazar v. Mukasey.

An Order of Removal was entered against an asylum applicant by an Immigration Judge on July 18, 2006. The applicant’s attorney sent a Notice of Appeal to the Board of Immigration Appeals on August 15, 2006 by Federal Express for guaranteed next day delivery (the 30 day filing deadline was August 17, 2006). Had the Fed Ex envelope in fact arrived on August 16, 2006, the appeal of course would have been timely filed. The problem was that the Fed Ex envelope inexplicably sat at the Fed Ex facility in Tennessee for 5 days and didn’t arrive at the BIA until August 23, 2006. The BIA then dismissed the appeal as being filed late.

The applicant filed a Motion for Reconsideration and he submitted the Federal Express airbill as evidence of timely mailing. But the BIA denied the Motion saying it didn’t observe the “mailbox rule” and that it had no authority to extend the appeal deadline beyond the 30 days as called for in the rules. The applicant then appealed to Federal Court.

In a common sense and proper decision, the 6th Circuit Court of Appeals ruled that the BIA had abused its discretion in simply denying the applicant’s motion without considering whether the Fed Ex problem may excuse the late filing . The Court sent the case back to the BIA, instructing it to consider whether the applicant’s circumstances were “extraordinary and unique” and would therefore justify extending the deadline.

The Court cited another of its recent decisions, Siby v. Gonzales, in which a Notice of Appeal was sent to the BIA via Federal Express but not actually received until 21 months later. In that case, too much time went by between mailing and delivery and importantly, during that entire 21 month period, neither the applicant nor the applicant’s attorney made any effort to contact either Federal Express or the BIA to find out about the status of his appeal. The Court held in Siby that the delay was not extraordinary or unique and that appeal was denied.

But in this case, the Court said, there was no such lengthy delay—really only a few days. So now the BIA has the case back so that it can consider whether the case presents the “extraordinary and unique” circumstances that justify the late filing.

The case highlights the need to track Federal Express mailings. I make it my practice to track a Fed Ex mailing not only later in the same day of mailing (so that I know that it was picked up) but also on the next day so that I know that it was delivered and signed for. Fed Ex tracking couldn’t be easier—just go to the Federal Express website, type in the number of the receipt and you get an immediate update on where the package is. In the unlikely event there is a problem (and I can only recall one instance in which I have ever had a Fed Ex delivery problem), you’ll know it right away and can take whatever action is necessary with both Fed Ex and with the Court.