Irigoyen-Briones v. Holder

582 F.3d 1062, 9 Cal. Daily Op. Serv. 12, 2009 U.S. App. LEXIS 21325

Opinions

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge KLEINFELD.

MILAN D. SMITH, JR., Circuit Judge:

Guillermo Irigoyen-Briones (Irigoyen-Briones) petitions for review of the Board of Immigration Appeals’ (BIA) denial of his motion to reconsider its rejection of his appeal of an Immigration Judge’s (IJ) decision as being untimely filed. Irigoyen-Briones sought to excuse the late filing as having been caused by an overnight delivery service’s failure to deliver the notice until the day after the BIA’s thirty-day deadline. He argues that the BIA’s determination that it lacks jurisdiction to extend the appeal filing deadline conflicts with this court’s decision in Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir.2005), which held on similar facts that the deadline is “subject to exceptions in ‘rare circumstances.’ ” In response, the Attorney General asserts that the BIA’s subsequent decision in In re Liadov, 23 I & N Dec. 990 (BIA 2006), which expressly addressed and rejected the holding in Oh, is the governing authority. Because 8 C.F.R. § 1003.38(b) is ambiguous regarding the BIA’s jurisdiction to consider late filings, and because the BIA’s interpretation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, we hold that Supreme Court precedent requires us to give deference to the BIA’s construction of 8 C.F.R. § 1003.38(b), and we affirm the BIA’s denial of Irigoyen-Briones’ motion to reconsider its rejection of his appeal of the IJ’s decision as being untimely filed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Removability Charges and IJ Proceedings

Irigoyen-Briones, a native and citizen of Mexico, entered the United States illegally in 1991. In November 2003, United States Immigration and Customs Enforcement commenced proceedings against him by filing a Notice to Appear (NTA), charging him with removability as an alien present in the United States without being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)®.

At a hearing before an IJ in December 2003, Irigoyen-Briones admitted the allegations in the NTA and conceded removability. In October 2004, he filed an application for cancellation of removal or, in the alternative, for voluntary departure. The IJ denied these requests in December 2006.

B. BIA Proceedings

1. Initial Appeal

On January 18, 2007, Irigoyen-Briones’ counsel filed a Notice of Appeal (NOA) with the BIA. The BIA dismissed the appeal as untimely because, pursuant to 8 C. F.R. § 1003.38(b), the NOA was due one day earlier, on January 17, 2007. The BIA observed that in light of the jurisdictional dismissal, if either party “wish[ed] to file a motion to reconsider challenging the finding that the appeal was untimely, [it had to] file [the] motion with the Board. However, if [either party was] challenging any other finding or seeking] to reopen [the] case, [it had to] filefthe] motion with the Immigration Court.”

2. Motion for Reconsideration

In March 2007, Irigoyen-Briones filed a motion for reconsideration or, in the alternative, for the BIA to certify the appeal to itself. He argued that the BIA had jurisdiction over his untimely appeal in light of the “rare circumstances” exception explained in Oh v. Gonzales, 406 F.3d 611, and Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105 (2d Cir.2005).

In a supporting declaration, Irigoyen-Briones’ counsel stated that after he retained her on January 8, 2007, she made an appointment with the Immigration Court on January 11, 2007, to listen to the tape recordings of the IJ proceedings. “Upon opening the envelope containing the tapes,[she] was surprised to find that there were (at least) five tapes,” which included a “rather long” oral decision by the IJ, and needed to “research a few legal issues before [she] could write the Notice of Appeal with enough specificity so that it would not be summarily dismissed.” She completed this additional research and prepared the NOA by the end of January 13, 2007, and was aware that there would be no mail service on January 14 or 15, 2007, because the 14th was a Sunday and the 15th was Dr. Martin Luther King, Jr. Day.

Counsel’s declaration further states that, on January 16, 2007, she mailed the NOA via the United States Postal Service’s (USPS) Express Mail delivery service, which guaranteed delivery of the NOA to the BIA on the due date of January 17, 2007. She notes that although the cut-off time for a next-day delivery to the BIA was 4:00 p.m., she delivered the NOA to the USPS station at 10:40 a.m. to ensure that there was ample time for the delivery, and that in her over ten years of experience using USPS for overnight deliveries, she had never before had a document delivered late. She also states that “USPS, through its agent with whom[she] spoke by telephone, admits that it failed in delivering the Express Mail package as guaranteed and indicates that they will provide a refund upon request at any post office.”

In denying Irigoyen-Briones’ motion for reconsideration, the BIA first observed that rather than establishing an “error of fact or law in the Board’s prior decision,” he instead argued that “the Board should make an exception to the filing deadline, or at the very least, accept the appeal on certification.” Next, the BIA noted counsel’s argument that “unlike the respondent in [In re ] Liadov, 23 I & N Dec. 990 (BIA 2006), she did not wait until the last possible moment to prepare the brief, but worked diligently for several days to prepare [it], even traveling to the Immigration Court in San Francisco to listen to the tape of the Immigration Judge’s decision.” The BIA then concluded:

The Board does not observe the mailbox rule (accepting the mailing date as the filing date). A Notice of Appeal from the decision of an Immigration Judge must be filed at the Board no later than 30 calendar days after the Immigration Judge renders an oral decision or mails a written decision. Receipt by any other entity — be it the U.S. Postal Service, commercial courier, or institution of detention — does not suffice. The regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 C.F.R. § 1003.38(b). Short delays in delivery are to be expected, and they do not warrant consideration of an untimely appeal on certification. See [In re] Liadov.

This petition for review followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s denial of a motion to reconsider for abuse of discretion, “upholding] the Board’s ruling ‘[u]nless [it] acted arbitrarily, irrationally, or contrary to law.’ ” Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004) (quoting Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003)) (alterations in original). “[T]he BIA’s determination of purely legal questions, including the BIA’s interpretation of the Immigration and Nationality Act,” is reviewed de novo. Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999). We review factual findings for substantial evidence. Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997). “Under the substantial evidence standard, ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).

DISCUSSION

Irigoyen-Briones argues that the BIA’s determination that it lacks authority to extend an appeal filing deadline under 8 C.F.R. § 1003.38(b) contravenes this court’s decision in Oh v. Gonzales, 406 F.3d 611, thereby requiring remand to allow the agency to exercise its discretion whether to accept his late-arriving NO A as a “rare circumstance.”¹

A. Oh

In Oh, the petitioner similarly appealed the BIA’s denial of her motion to reconsider its prior decision dismissing her appeal of an IJ’s order as untimely filed, arguing that the BIA should have “excuse[d] the late filing as having been caused by an overnight delivery service’s failure to deliver the notice until well past the BIA’s 30-day filing deadline.” 406 F.3d at 612. The IJ had issued his decision, and thereby triggered the thirty-day deadline, on January 10, 2003, and the petitioner had mailed her NO A by overnight mail on February 4, 2003. Id. The carrier, however, failed to deliver the NOA until February 24, 2003. Id. In denying the petitioner’s motion for reconsideration, the BIA, as in the present case, ruled that it “does not have the authority to extend the time in which to file a Notice of Appeal” under 8 C.F.R. § 1003.38(b). Id. at 613.

The Oh court disagreed with the BIA’s conclusion and remanded. Id. at 613-14. In doing so, the court noted the Attorney General’s argument, also advanced here, that the BIA lacks authority to extend the time in which to file an appeal based on Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993), which held that “[t]he time limit for filing an appeal [to the BIA] is mandatory and jurisdictional.” The Oh court distinguished this precedent, observing that “as the authority Da Cruz cites for this proposition states, ‘[d]espite the note of finality sounded by this principle, it is not inflexible.’ ” Oh, 406 F.3d at 613 (quoting Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980)).² The Oh court also found it significant that “the BIA’s own Practice Manual ... explicitly encourages aliens to use overnight delivery services to ensure prompt delivery. Although warning that ‘delivery delays do not affect existing deadlines, nor does the Board excuse untimeliness due to such delays,’ the Manual itself expressly acknowledges that in ‘rare circumstances’ the BIA may excuse late filings.” Id. (quoting BIA Practice Manual, Ch. 3(b), p. 28 (rev.9/25/02)).

Based on this reasoning, the Oh court held that “[t]he BIA’s deadline is thus subject to exceptions in ‘rare circumstances,’ even when the notice of appeal does not actually arrive before the deadline.” Id. (citing Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir.2001) (en banc), for the proposition that “[i]f a time limit is jurisdictional, it is not subject to the defenses of waiver, equitable tolling, or equitable estoppel, although there may still be exceptions based on unique circumstances ” (emphasis added) (citation and internal quotation marks omitted)). The court then applied this holding, stating:

On its face, Oh’s use of one of the overnight delivery services the BIA recommends (Airborne Express is identified by name) would appear to qualify her for relief from late filing as a unique or rare circumstance — or at least to be considered for such relief, with some reasoned explanation should the BIA reject her proffered excuse. As the case comes to us, Oh has a colorable claim that she was misled into relying on the recommended overnight delivery service, and on the “rare circumstance” exception to remedy what appears to be an extraordinary lapse on Airborne’s part. The BIA’s refusal to reconsider her claim in these circumstances, based on its erroneous assumption that it lacked authority to do so, was an abuse of discretion.

Id. Accordingly, the court “remand[ed] to allow the BIA to exercise its discretion as to whether to accept Oh’s late-arriving notice of appeal as a ‘rare circumstance.’ ”³

Id. at 614.

B. In re Liadov

A year after the Oh decision, the BIA expressly addressed and disagreed with it in In re Liadov, 23 I & N Dec. 990 (BIA 2006). Specifically, the BIA stated:

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. Gonzales ... that we have the authority to extend the appeal time.

Liadov, 23 I & N Dec. at 993. Importantly, however, the BIA also held that “[w]here a case presents exceptional circumstances, the Board may certify a case to itself under 8 C.F.R. § 1003.1(c)[.]”⁴ Id.

C. The BIA’s Reasonable Interpretation of Its Regulations in Liadov is Entitled to Deference

Although Irigoyen-Briones asserts that the BIA’s reading of 8 C.F.R. § 1003.38(b) in Liadov is foreclosed by this court’s conflicting construction in Oh, Supreme Court precedent requires us to give deference to the BIA’s interpretation in this instance. Under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), an agency’s interpretation of its own regulation may be entitled to substantial deference from a reviewing court. See Gonzales v. Oregon, 546 U.S. 243, 255, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). To determine whether Auer deference applies, we conduct a two-step inquiry. First, “Auer deference is warranted only when the language of the regulation is ambiguous”; otherwise, “[t]o defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Second, if the regulation is ambiguous, then the agency’s “interpretation of it is ... controlling unless plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (citation and internal quotation marks omitted). “Under this standard, we defer to the agency’s interpretation of its regulation unless an” “alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir.2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (emphasis added) (alteration in original)).

Applying these principles here, we hold that the plain language of 8 C.F.R. § 1003.38(b) is ambiguous as to whether the BIA may extend the filing deadline. The provision states, in relevant part:

The Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge ... shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing of an Immigration Judge’s written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day.

8 C.F.R. § 1003.38(b). As the Oh court noted, this language “says nothing about the BIA’s jurisdiction to consider late filings.” 406 F.3d at 613 n. 4. Nor, however, does it say anything about the BIA’s authority to review such filings in “rare circumstances.” Given the regulation’s silence on the issue, neither construction is clearly foreclosed.

For the following reasons, we also hold that the BIA’s interpretation of 8 C.F.R. § 1003.38(b) in Liadov is not “plainly erroneous or inconsistent with the regulation.” See Auer, 519 U.S. at 461, 117 S.Ct. 905 (citation and internal quotation marks omitted). First, the BIA’s interpretation conforms to the wording of the relevant regulations. The word “shall” in 8 C.F.R. § 1003.38(b) indicates a mandatory time frame, and the rest of the provision further indicates only one exception for extensions: “If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day.” Id. At the same time, related provision 8 C.F.R. § 1003.3(c) states that “[t]he date of filing of the Notice of Appeal ... shall be the date the Notice is received by the Board.” (Emphasis added.) Based on the plain language of the regulations, therefore, the BIA in Liadov reasonably concluded that neither a “mailbox” rule — i.e., accepting the mailing date as the filing date — nor a “rare circumstances” exception for late filings, applies.

Second, as explained in Liadov, the BIA’s interpretation conforms to the wording of the BIA’s own Practice Manual:

The Board of Immigration Appeals Practice Manual (“Practice Manual”) ..., 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 [Practice Manual] § 3.1(a)(1), at 31 (July 30, 2004)....

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.” [Practice Manual] § 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.

Liadov, 23 I & N Dec. at 991-92. It is true, as the Oh court noted, that the Practice Manual “acknowledges that in ‘rare circumstances’ the BIA may excuse late filings.” 406 F.3d at 613. However, given that this acknowledgment is consistent with the BIA’s conclusion in Liadov that it may still take untimely cases in “rare” or “extraordinary” circumstances pursuant to its discretionary certification authority under 8 C.F.R. § 1003.1(c), 23 I & N Dec. at 991, it does not compel an alternative reading of 8 C.F.R. § 1003.38(b) or indicate that the BIA’s interpretation is plainly erroneous.

Third, the BIA’s construction sensibly conforms to the purpose of the regulations. As noted in Liadov, “[m]eaningful 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.” 23 I & N Dec. at 992. Indeed, in 1996, recognizing the importance of both enforcing such deadlines and simultaneously allowing the parties sufficient time in which to file appeals, the Board by- regulation lengthened the period for filing administrative appeals from ten days to thirty days. Id. (citing Executive Office for Immigration Review: Motions and Appeals in Immigration Proceedings, 61 Fed.Reg. 18,900, 18,908 (Apr. 29, 1996) (codified at 8 C.F.R. § 3.38(b) and subsequently recodified at 8 C.F.R. § 1003.38(b))). The BIA in Liadov reasonably found that “this is a fair and generous filing period and one that the parties must take seriously,” observing that “[t]he filing time was not extended to simply ‘push the window1 of last-minute filings 20 days forward.” Id.

Fourth, the BIA’s interpretation comports with the Supreme Court’s approval of the adoption of strict filing deadlines in other contexts. In United States v. Locke, for example, the Court stated:

The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. “Any less rigid standard would risk encouraging a lax attitude toward filing dates[J” A filing deadline cannot be complied with, substantially or otherwise, by filing late — even by one day.

471 U.S. 84, 101, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (quoting United States v. Boyle, 469 U.S. 241, 249, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985)). In addition, the Court recently clarified that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement,” and that “[bjecause th[e] Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Finally, as the Eighth Circuit noted in similarly deferring to the BIA’s interpretation in Liadov as a “permissible interpretation” of 8 C.F.R. § 1003.38(b), “[t]he BIA has declared for more than fifty years that thé regulation prescribing the time within which an administrative appeal must be filed ... is mandatory and may not be extended by the BIA.” Liadov v. Mukasey, 518 F.3d 1003, 1009 (8th Cir.2008); see, e.g., In re Dirphys, 3 I & N Dec. 223, 224 (BIA 1948) (“There is no provision in the pertinent regulation ... which gives ... this Board ... power to extend time within which an appeal must be filed.”); In re G—Z—, 5 I & N Dec. 295, 295 (BIA 1953) (“We rule that under the applicable regulations, ... there is no authority to extend the time for filing an appeal.”); In re Escobar, 18 I & N Dec. 412, 413 (BIA 1983) (acknowledging that “failure to [timely file an appeal] results in the decision becoming administratively final” such that the BIA “lacks jurisdiction to hear the appeal”). Indeed, “Confirming this longstanding agency rule, the Attorney General ruled in 2002 that ‘[t]his deadline is mandatory and jurisdictional.’ ” Liadov v. Mukasey, 518 F.3d at 1007 (quoting In re Jean, 23 I & N Dec. 373, 378 (BIA 2002) (alterations in original)).

Accordingly, because 8 C.F.R. § 1003.38(b) is ambiguous regarding the BIA’s jurisdiction to consider late filings, and because the BIA’s interpretation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, we must give Auer deference to the BIA’s construction that the agency lacks “authority to extend the appeal time” under 8 C.F.R. § 1003.38(b), but may “certify a case to itself’ where it presents “rare” and “exceptional” circumstances under 8 C.F.R. § 1003.1(c).⁵ See Liadov, 23 I & N Dec. at 993. We also hold that, under Auer and its progeny, to the extent Oh was grounded in the ambiguous language of 8 C.F.R. § 1003.38(b), the BIA’s reasonable discretionary interpretation of 8 C.F.R. § 1003.38(b) in Liadov has “effectively overruled” the prior, contrary holding in Oh. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc) (stating that although a three-judge panel is usually bound by the opinion of a prior three-judge panel, this court has recognized an exception where “the reasoning or theory of[this court’s] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,” such that the prior three-judge panel’s decision has been “effectively overruled”); cf. Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1236 n. 7 (9th Cir.2007) (citing Miller, 335 F.3d at 893, for the proposition that “[t]he Supreme Court’s opinions in Chevron [U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),] and [Nat’l Cable & Telecomm. Ass’n v.] Brand X [Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005),] together hold that to the extent that [Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004) ] was grounded in the ambiguous language of [a provision of the Immigration and Nationality Act], the BIA’s reasonable discretionary construction of the statute in [In re Torres-Garcia, 23 I & N Dec. 866 (BIA 2006)] has ‘effectively overruled’ contrary holdings in [Perez-Gonzalez ]”).

CONCLUSION

We conclude that, based on Supreme Court precedent, we must defer to the BIA’s reasonable interpretation in Liadov that the agency lacks authority to extend the thirty-day deadline for filing an appeal. As a result, the BIA did not abuse its discretion in denying Irigoyen-Briones’ motion to reconsider its rejection of his appeal of the IJ’s decision as being untimely filed.

AFFIRMED.

1 . In the "Introduction” to his brief, Irigoyen-Briones states: "As with the petitioner in Oh v. Gonzales, petitioner in the present [case] argues that 'the BIA's [error] in denying h[is] motion to reconsider raises both abuse of discretion and due process arguments.’ ” (Emphasis added.) Nowhere else in the brief, however, does Irigoyen-Briones mention a due process claim or offer any authority or arguments in support of such a claim. As a result, he has waived the issue. Cf. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.2007) (" '[A]n issue referred to in the appellant's statement of the case but not discussed in the body of the opening brief is deemed waived.' ” (quoting Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996))). Moreover, Oh "d[id] not reach [the petitioner]^ due process arguments,” 406 F.3d at 612 n. 1, and therefore does not support a due process argument in any event.

2 . Hernandez-Rivera relied entirely on Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), both of which the Supreme Court recently overruled in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007).

3 . In Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105, 109-11 (2d Cir.2005), the Second Circuit agreed with the Oh court that an overnight delivery service's failure to timely deliver a NOA can constitute an extraordinary circumstance excusing a petitioner's failure to comply with the thirty-day limit for filing an appeal. The petitioner in Zhong Guang Sun placed his NOA with an overnight delivery service one day before the deadline for filing an appeal. Id. at 106. The Second Circuit stated that a petitioner’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.' " Id. at 111. As a result, the Second Circuit, like the Oh court, remanded the case for the BIA to reconsider the issue. Id.

4 . 8 C.F.R. § 1003.1(c) states:

Jurisdiction by certification. The Commissioner, or any duly authorized officer of the Service, an Immigration Judge, or the Board may in any case arising under paragraph (b) of this section certify such case to the Board. The Board in its discretion may review any such case by certification without regard to the provisions of [8 C.F.R.] § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the Board regarding the case, including the opportunity request oral argument and to submit a brief.

5 . Irigoyen-Briones challenges only the BIA's holding that it lacks jurisdiction to extend an appeal filing deadline under 8 C.F.R. § 1003.38(b); he does not challenge the BIA's discretionary decision that "[s]hort delays in delivery are to be expected, and they do not warrant consideration of an untimely appeal on certification” under 8 C.F.R. § 1003.1(c). As a result, he has waived that issue on appeal. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988) (noting that "[i]t is well established in this Circuit that claims which are not addressed in the appellant’s brief are deemed abandoned”). Moreover, even if Irigoyen-Briones had not waived the certification issue, we lack jurisdiction to consider it under 8 U.S.C. § 1252(a)(2)(D).