Some Courts Are Still Afraid of the Internet

 Michael Stephan 

Electronic filing of court documents has become a relatively common practice in this country.  Nearly all jurisdictions allow electronic filing in some manner, and the Federal Rules of Civil Procedure expressly permit electronic filing.  The benefits of filing documents electronically rather than physically are clear: it’s typically cheaper, faster, and easier.

Nevertheless, some courts still require paper-and-ink documents to arrive in their mailboxes.  On Tuesday, the Ninth Circuit questioned this requirement when an immigrant missed a filing deadline by one day due to a Postal Service error.  The decision, Irigoyen-Briones v. Holder, calls on courts to “assume the availability of email and the internet when [assessing] the reasonableness of government action.”

Guillermo Irigoyen-Briones, an illegal immigrant from Mexico, was ordered to be removed from the United States on December 18, 2006.  Irigoyen-Briones  had 30 days to appeal the decision.  Over the next three weeks, he found a lawyer, raised money to retain the lawyer, and had the lawyer research his case.  The lawyer listened to the tapes from his immigration hearing and prepared the notice of appeal.  On January 16—the day before the notice of appeal was due—the lawyer personally drove to a U.S. post office and mailed the notice by express mail with guaranteed next-day delivery.

But the notice arrived a day late.  The United States Postal Service acknowledged that it broke its guarantee of next-day delivery and offered to refund the postage fee.  The refund, however, was of no comfort to Irigoyen-Briones whose appeal was then dismissed by the Board of Immigration Appeals as untimely.

The BIA refused to reconsider its decision or grant Irigoyen-Briones an exception to the filing deadline, claiming that it lacked the jurisdiction to do so.  The Ninth Circuit reversed, which means the BIA may now consider Irigoyen-Briones’s appeal.

After addressing the jurisdiction question, the Ninth Circuit panel assessed the reasonableness of the BIA’s filing deadline.  It noted that the BIA “could easily adopt electronic filing,” which would save attorneys and their clients “from the risk of arbitrary horrendous consequences due to chance post office and delivery delays.”  It also pointed out the “cruel irony” that the BIA distributes its practice manual over the Internet, “yet pretends the internet does not exist when it comes to receiving papers.”

The Ninth Circuit wisely recognized that the Internet is not some strange, newfangled series of tubes that should be treated as a novelty.  Rather, it’s a widely available and vetted tool to communicate information.  Hopefully other courts will follow the Ninth Circuit’s lead on this issue, and litigants will no longer lose their appeals due to things as trivial as inclement weather or postal service error.


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