Lin v. U.S. Attorney General

677 F.3d 1043, 82 Fed. R. Serv. 3d 404, 2012 WL 1288811, 2012 U.S. App. LEXIS 7649
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 17, 2012
Docket11-10100
StatusPublished
Cited by49 cases

This text of 677 F.3d 1043 (Lin v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lin v. U.S. Attorney General, 677 F.3d 1043, 82 Fed. R. Serv. 3d 404, 2012 WL 1288811, 2012 U.S. App. LEXIS 7649 (11th Cir. 2012).

Opinion

PRYOR, Circuit Judge:

This appeal presents a jurisdictional issue of first impression: when is our Court “inaccessible” within the meaning of Federal Rule of Appellate Procedure 26(a)(1) so as to extend the time for filing a petition for review of a decision of the Board of Immigration Appeals. Chao Lin and his wife, Xue Yun Lin, natives and citizens of China, petition for review of the denial of their third motion to reopen removal proceedings. After the Board denied their motion, the Lins had 30 days to file their petition for review in this Court, but the Lins filed their petition one day late. The Lins urge us to rule that their petition is timely because they paid a commercial parcel service to provide overnight delivery 29 days after the Board issued its decision and, but for a delay caused by inclement weather, the petition would have reached our Court on the day it was due. Although the government acknowledges that the Lins’ petition is untimely, the government does not ask that we dismiss them petition. The government instead argues that the Board did not abuse its discretion by denying the Lins’ third motion to reopen. Because we lack jurisdiction to consider an untimely petition for review and our Court was accessible on the day the Lins’ petition was due, we dismiss the Lins’ petition for lack of jurisdiction.

I. BACKGROUND

To avoid deportation, Xue Yun Lin filed an application for asylum, withholding of removal, and protection under the Convention Against Torture on behalf of herself and her husband. Xue Yun asserted that she feared that she and Chao would be persecuted if they returned to China because she had given birth to two children in violation of Chinese policy and she was pregnant with a third child. Xue Yun alleged that she would be forced by China to have an abortion and China would forcibly sterilize her. An immigration judge denied the Lins’ application, and the Board of Immigration Appeals affirmed and ordered the Lins removed on September 18, 2006.

The Lins filed three unsuccessful consecutive motions to reopen their removal proceedings. On December 14, 2010, the Board affirmed the immigration judge’s denial of the last of the Lins’ motions to reopen on the ground that the motion was both untimely, 8 U.S.C. § 1229a(c)(7)(C)(i), and number-barred, id. § 1229a(c)(7)(A), and the Lins had failed to establish that they qualified for an exception based on changed country conditions, id. § 1229a(c)(7)(C)(ii).

The Lins petitioned our Court for review of the decision of the Board to deny their motion to reopen. On January 12, 2011, the Lins paid a commercial parcel service, Federal Express, to deliver their petition to this Court on January 13. On *1045 January 13, the Clerk’s office delayed opening until 10:30 a.m., due to inclement weather, but the Clerk’s office remained open until its standard closing time of 5 p.m. Federal Express delivered the Lins’ petition on January 14.

II. STANDARD OF REVIEW

“We review de novo our subject matter jurisdiction.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir.2007). “[EJvery federal appellate court has a special obligation to satisfy itself ... of its own jurisdiction ... even though the parties are prepared to concede it.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (internal citation and quotation marks removed).

III. DISCUSSION

We must determine whether the Lins’ petition was timely because “the statutory limit for filing a petition for review in an immigration proceeding is mandatory and jurisdictional” and “not subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 371 F.3d 771, 773 n. 3 (11th Cir.2004) (internal citation and quotation marks removed). The Immigration and Nationality Act provides jurisdiction for our Court to review an order denying a motion to reopen, Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1261 (11th Cir.2003), so long as the movant files a petition for review within 30 days of the decision of the Board, 8 U.S.C. § 1252(b)(1). A petition for review is filed when it is received by the Clerk of the Court. Fed. R.App. P. 25(a)(2)(A).

If the Clerk’s office is “inaccessible ... on the last day for filing ... then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.” Fed. R.App. P. 26(a)(3)(A). The Clerk did not receive the Lins’ petition until 31 days after the Board issued its order, so we lack jurisdiction to consider that petition unless the Clerk’s office was “inaccessible” on the day the Lins’ petition was due.

Inclement weather may make a court “inaccessible” within the meaning of Federal Rule of Appellate Procedure 26(a). The old version of the rule stated that, “in computing time, ... the last day of the period is included ‘unless it is a Saturday, Sunday, or legal holiday, or ... a day on which the weather or other conditions make the clerk’s office inaccessible.’ ” Yepremyan v. Holder, 614 F.3d 1042, 1043 (9th Cir.2010). Athough the new version of the rule omits the reference to “weather or other conditions” that may make the Clerk’s office inaccessible, the Advisory Committee Notes explain that the “reference to ‘weather’ was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerk’s office.” Fed. R.App. P. 26 Advisory Committee’s Note (2011).

Official closure of the Clerk’s office for any reason makes that office “inaccessible,” see, e.g., Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 747 (9th Cir.2001); Latham v. Dominick’s Finer Foods, 149 F.3d 673, 674 (7th Cir.1998), abrogated on other grounds, Hart v. Sheahan,

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677 F.3d 1043, 82 Fed. R. Serv. 3d 404, 2012 WL 1288811, 2012 U.S. App. LEXIS 7649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lin-v-us-attorney-general-ca11-2012.