Tingting Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2022
• Docket: 19-72406
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TINGTING ZHANG, No. 19-72406

Petitioner, Agency No. A206-336-830

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 9, 2022 San Francisco, California

Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,** District Judge. Dissent by Judge VANDYKE.

Tingting Zhang, a citizen of China, seeks review of a decision by the Board

of Immigration Appeals (“BIA”) dismissing her appeal from an order of an

Immigration Judge (“IJ”) denying her applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. removal, and protection under the Convention Against Torture (“CAT”). We grant

the petition for review.

1. We first address our jurisdiction. Because the BIA ordered Zhang

removed on August 20, 2019, a petition for review was required to be filed no later

than September 19, 2019. See 8 U.S.C. § 1252(b)(1). The Clerk stamped Zhang’s

petition as “received” on September 20, also indicating that it was “filed” and

“docketed” on that day. The government therefore contends that the petition was

untimely.1

The timeliness of a filing turns on when the Clerk “receives” the petition. Fed.

R. App. P. 25(a)(2)(A)(i). Ninth Circuit Rule 25-2 requires anyone submitting a

paper document for filing “via the United States Postal Service” to mail the

document to the Court’s San Francisco Post Office box. A paper filing is “received”

on the day it arrives at the Post Office box. See Sheviakov v. INS, 237 F.3d 1144,

1148 (9th Cir. 2001).

The government does not contest that Zhang mailed her petition to this Court’s

Post Office box, but contends that there is no proof that it arrived on or before

September 19, 2019. But the docket provides evidence that, on September 17, 2019,

Zhang mailed a petition for review to the Post Office box by USPS Priority Mail 2-

1 The government’s motion to dismiss for lack of jurisdiction was denied without prejudice to renewal of the argument in the merits briefing, and the government did so.

2 Day. The envelope containing the petition was retained by the Clerk and entered

into the docket; it is addressed to the Post Office box, and the postage sticker on the

envelope shows that it was sent on September 17, 2019, with an “expected delivery

date” of September 19, 2019.2

We addressed a similar scenario in Sheviakov, 237 F.3d at 1144–48. In that

case, we observed that, in the “ordinary course,” filings received in the Court’s Post

Office box typically are not “physically brought into” the Clerk’s office and stamped

as filed until the day after receipt. Id. at 1146. We therefore treated a filing sent to

the Post Office box as timely despite the fact that it was stamped as filed a day later.

Id. at 1148. This approach, we explained, prevents jurisdiction from turning on

“such fortuities as whether the deputy clerk left for dinner a half hour early.” Id.

In Sheviakov, unlike this case, two “notices” in the Post Office box indicated

that the filing had timely arrived. Id. at 1146. But the “ordinary course” of the

Clerk’s office noted in Sheviakov and the mailing envelope in which Zhang’s

petition was received, which noted the expected delivery date, provide evidence that

the petition was timely received.3 See McNutt v. Gen. Motors Acceptance Corp. of

2 When the government’s motion to dismiss was filed, tracking data for the petition was no longer available, as the Postal Service retains such data for only 120 days. United States Postal Service, USPS Tracking—The Basics (Nov. 19, 2021), http://faq.usps.com/s/article/USPS-Tracking-The-Basics. 3 The dissent accurately notes that USPS has ended its use of “notification slips”

3 Ind., 298 U.S. 178, 189 (1936) (noting that the party alleging jurisdiction may

“justify his allegations by a preponderance of the evidence”). Because the

government offers no evidence to the contrary other than the Clerk’s stamp—which

Sheviakov establishes is not itself conclusive, see 237 F.3d at 1146–48—we find the

petition timely and proceed to its merits.4

2. The IJ found Zhang not credible because he found it implausible that

someone who claimed to have been arrested for her religious beliefs and

subsequently denied employment because of that arrest could have exited China

without being stopped at airport exit controls. The BIA upheld that adverse

credibility determination.5 We review “adverse credibility determinations[] for

substantial evidence,” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020),

considering the “totality of the circumstances and all relevant factors,” Alam v.

in favor of online tracking. See Dissent at 6–7 n.3. Online tracking data was not available in this case. See supra note 2. Importantly, however, the dissent does not contend that the Clerk has ended the practice of stamping filings picked up from the Post Office box on the next day, when they are “physically brought into” the Clerk’s office. Sheviakov, 237 F.3d at 1146. 4 We deny Zhang’s motion for judicial notice of material from the Postal Service website purportedly further supporting her argument that the petition arrived on time, Dkt. 22, as moot. 5 The IJ’s second rationale for the adverse credibility determination—resting on his doubts about whether a letter from Zhang’s mother was genuine—was not relied upon by the BIA in dismissing the appeal. Therefore, we do not address it. See Iman, 872 F.3d at 1064.

4 Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc). A finding of implausibility

will not support an adverse credibility determination if supported only by “mere

speculation and conjecture.” Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1039 (9th Cir.

2008).

Here, the IJ assumed that Chinese airport authorities would have uncovered

Zhang’s arrest record and prevented her from departing the country. But, we have

repeatedly instructed that “conjecture about the expected efficiency and competence

of government officials” does not “substitute for substantial evidence.” Ge v.

Ashcroft, 367 F.3d 1121, 1126 (9th Cir. 2014); see also, e.g., Li v. Holder, 559 F.3d

1096, 1103–04 (9th Cir. 2009) (credibility determination was “riddled with

speculation,” including the belief that “the [Chinese] police should have ferreted out

the purposefully secret religious meeting sooner”); Kaur v. Ashcroft, 379 F.3d 876,

887 (9th Cir. 2004) (IJ relied on “personal conjecture about the manner in which

Indian passport officials carry out their duties”); Arulampalam v. Ashcroft, 353 F.3d

679, 687 (9th Cir. 2003) (beliefs about how Sri Lankan soldiers would guard

roadblocks were “pure hypothesis”). We therefore grant the petition for review and

remand for further consideration of Zhang’s application for relief by the agency.

PETITION GRANTED.

5 FILED Tingting Zhang v. Garland, No. 19-72406 APR 26 2022 MOLLY C. DWYER, CLERK VANDYKE, Circuit Judge, dissenting. U.S. COURT OF APPEALS

We do not have the power to extend the jurisdictional deadline to file a petition

for review. Tingting Zhang was required to file her petition by September 19, 2019,

and bears the burden to demonstrate that the Court received her petition by that

deadline. Zhang has produced no evidence making that showing. All she has

evinced is that she mailed her petition so that, if it arrived on time, it would have

been timely. But that is not evidence it actually arrived on time, and our court has

rejected proof-of-mailing a petition as proof of timely receipt. The majority extends

our precedent so that it effectively relieves Zhang of her burden. I would dismiss

the petition for lack of jurisdiction, and therefore respectfully dissent.

As the majority explains, a petition for review of a decision by the Board of

Immigration Appeals is timely filed if the Clerk of the Court “receives” the petition

on or before the date it is due. Fed. R. App. P. 25(a)(2)(A)(i). Our circuit rules and

caselaw clarify that a paper filing is “received” on the day it arrives at one of two

addresses to which it can be mailed, whether that be the Ninth Circuit’s physical

address (the James R. Browning Courthouse in San Francisco) or the Ninth Circuit’s

offsite Post Office Box (also in San Francisco). 9th Cir. R. 25-2; see also Sheviakov

v. I.N.S., 237 F.3d 1144, 1148 (9th Cir. 2001). No evidence shows that the petition

in this case was “received” at either address by the September 19, 2019 deadline.

1 Instead, the petition was file-stamped by the clerk’s office on September 20, 2019,

and Zhang failed to provide any tangible evidence showing the petition arrived

before that date. See Sheviakov, 237 F.3d at 1146–1148 (explaining that a petition

file-stamped after the jurisdictional deadline must be dismissed for lack of

jurisdiction unless petitioner provides tangible evidence that the Clerk of Court

received the petition on time).

According to the majority, Zhang satisfied her burden to show the petition

arrived on time because (1) USPS provided September 19, 2019 as the “expected”

delivery date when Zhang mailed the petition, and (2) it is possible that the petition

arrived at the Ninth Circuit P.O. Box before the date the clerk file-stamped it. But

no tangible evidence shows that actually happened. The majority’s attempt to rely

on what presumably happened conflicts with our caselaw and effectively relieves

Zhang of her burden without admitting so. Sheviakov, 237 F.3d at 1147 (“[A] rule

other than one based on receipt by the clerk ‘would result in confusion and

controversies; and we would have a clash of oral testimonies’ with the evidence in

the hands of the party who claimed to have done something on time. It would be

undesirable to have the date of filing be determined by an evidentiary hearing on

when lawyers and their employees actually deposited papers in the mail.”);

Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (“A mandatory and

2 jurisdictional rule cannot be forfeited or waived and courts lack the authority to

create equitable exceptions to such a rule.” (internal citation omitted)).1

I. Sheviakov Did Not Broadly Extend the Jurisdictional Deadline for All Petitions Mailed to the Court’s Post Office Box and Stamped by the Clerk’s Office as Filed Late.

The majority relies on Sheviakov as supporting its conclusion that a petition

file-stamped on September 20, 2019, was actually received on September 19, 2019,

despite Zhang providing no evidence of the latter. But nothing in Sheviakov allows

us to declare timely all filings sent to the Ninth Circuit P.O. Box that are stamped as

one day late. The majority confuses the legal question analyzed in Sheviakov (Is a

petition “received” under Fed. R. App. P. 25 when there is evidence that it arrived

at the P.O. Box on time?) with the factual deficiency at issue in this case (Does any

evidence show Zhang’s petition actually arrived at the P.O. Box on time?).

In Sheviakov, the court considered whether a petition that arrived in the Ninth

Circuit P.O. Box the day it was due, but was not picked up by the clerk’s office until

the following day, was “received” on the day it arrived in the P.O. Box. Sheviakov,

237 F.3d at 1146–48. To answer that question, the court focused on two notification

1 We have strictly construed the jurisdictional timely filing requirement in many published and unpublished decisions. Singh v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012); Torres v. Barr, 828 Fed. Appx. 436, 437 (9th Cir. 2020); Gutierrez-Moreno v. Sessions, 684 Fed. Appx. 651, 653 (9th Cir. 2017); Hernandez-Buruca v. Holder, 538 Fed. Appx. 761 (9th Cir. 2013); Singh v. Holder, 529 Fed. Appx. 845, 846 (9th Cir. 2013); Becerra- Serrano v. Holder, 360 Fed. Appx. 960, 961 (9th Cir. 2010). 3 slips placed in the P.O. Box. Id. at 1148. Those slips, placed in the box at two

different times before the deadline, were “tangible evidence” establishing the date

the petition arrived. Id. The court reasoned that because tangible evidence showed

the petition arrived at the post office box the day it was due, the petition was

“received on that day for the purposes of Federal Rule of Appellate Procedure

25(a)(2).” Id.

Here, there are no notification slips or other tangible evidence showing that

Zhang’s petition arrived at the P.O. Box or courthouse before September 20, 2019,

when the clerk file-stamped it. Cf. Sheviakov, 237 F.3d at 1147 (explaining that “a

file stamp later than the due date might not destroy jurisdiction where the petitioner

could show that the clerk received the papers on time” (emphasis added)). And

because petitioner failed to provide any such tangible evidence, we cannot analyze

whether that evidence shows the petition was “received” before the deadline like in

Sheviakov.2 See Haroutunian v. I.N.S., 87 F.3d 374, 375–76 (9th Cir. 1996) (“It’s

possible … the petition was received by the clerk before the filing deadline but was

not filed until afterwards, in which case it would be timely. [Petitioner], however,

2 The majority assumes that the petition arrived at the P.O. Box on September 19, 2019, and was delivered to the courthouse the following day, resulting in an inadvertent file-stamp after the due date. But it is also possible that the petition arrived on September 20, 2019, and was delivered to the courthouse the same day, resulting in an accurate file-stamp after the due date. The majority relieves Zhang of her burden to show that it was the former, not the latter. 4 failed to present any evidence that the petition was received before July 20. Because

the party invoking jurisdiction has the burden of proof we must proceed on the

assumption that the petition was received on July 20.” (internal quotations and

citations omitted)). Accordingly, the majority errs by analogizing this case, which

turns on a factual deficiency, to Sheviakov, which addressed a legal question with no

factual deficiency.

II. Mere Conjecture Cannot Satisfy Zhang’s Jurisdictional Burden.

Recognizing that Zhang failed to provide any tangible evidence that the

petition arrived on time, the majority focuses on (1) an expected delivery date

provided to Zhang by USPS and (2) Sheviakov’s factual background section

outlining Ninth Circuit mail intake procedures. The majority reasons that combining

the expected delivery date with Sheviakov’s facts supports the conclusion that Zhang

has proven that her petition arrived on time. But that can’t be true, because if it was,

any petition mailed to the Ninth Circuit P.O. Box after Sheviakov with a timely

“expected” delivery date would be considered timely, regardless whether it actually

arrived days, weeks, or months after the expected date. Cf. Haroutunian, 87 F.3d at

376 n.4 (“To avoid uncertainty, parties can obtain proof of the actual delivery date

by requesting a return receipt from the Postal Service. Alternatively, they can use a

private shipper, such as Federal Express or United Parcel Service, which records the

date on which items are delivered. Haroutunian has presented no such evidence.”).

5 And, notably, the Circuit Advisory Committee Note to the amended Rule 25-2

specifically anticipates the majority’s expected delivery date rationale and rejects it,

stating that “[l]itigants are reminded that a commercial carrier’s failure to deliver a

document within the anticipated interval does not excuse the failure to meet a

mandatory and jurisdictional deadline.” See Circuit Advisory Committee Note to

9th Cir. R. 25-2.

Nor can the majority rely solely on Sheviakov’s facts to determine that

Zhang’s petition was received on time. Sheviakov does not establish that it is the

“ordinary course” for any petitioner who ships their petition to the Ninth Circuit P.O.

Box to receive an extra day to file it. To the contrary, it merely uses the phrase

“ordinary course” to explain that when Sheviakov’s facts occurred, mail was

routinely delivered to the clerk’s office the day after it arrived. See Sheviakov, 237

F.3d at 1146 (“The petition was available for pickup the day it was due, June 23, but,

as was the ordinary course, was not physically brought into the clerk’s office until

the routine delivery the next morning.”). It should go without saying, but we should

not treat twenty-year-old, out-of-date mail intake procedures as controlling the facts

in this case and mandating a factual conclusion that, unlike Sheviakov, simply is not

demonstrated on this record.3

3 While I do not think it is appropriate (or necessary) to decide this case based on non-record information, I did ask the clerk’s office if our court’s mail intake practices have changed since Sheviakov. Unsurprisingly, those practices have 6 The majority’s final attempt to save jurisdiction is to conclude that the

“government offers no evidence” disproving jurisdiction “other than the Clerk’s

stamp.” But that rationale inappropriately assumes jurisdiction already exists and

shifts the evidentiary burden to the government. Cf. Magtanong, 494 F.3d at 1191

(dismissing for lack of jurisdiction because “Magtanong has not shown that he filed

his petition for review within the statutory 30–day filing period and he has failed to

present tangible evidence that the petition arrived before or on the thirtieth day”

(internal citation omitted)); see also Haroutunian, 87 F.3d at 375–76. Sheviakov

does not say that the government is required to disprove jurisdiction when a petition

is stamped as received after the jurisdictional deadline. Sheviakov, 237 F.3d at 1146

(“This deadline for filing is jurisdictional, and so there is nothing we can do about it

if the filing came one day late.”). Instead, Sheviakov says that we lack jurisdiction

to review a late petition—even if received only one day late—unless tangible

evidence shows it actually arrived on time. Id. at 1148 (“Accordingly, we hold that

under the current Ninth Circuit Rule 25–2, when the petition is mailed to our post

office box, and tangible evidence (such as a notification slip) exists to prove that the

package arrived at that address on a certain day, then the clerk shall treat the

petition as received on that day for the purposes of Federal Rule of Appellate

changed as a result of technology changes. The clerk’s office no longer relies on notification slips for USPS mail. USPS’s online tracking system has replaced such slips. And Zhang provided no such tracking information. 7 Procedure 25(a)(2).” (emphasis added)). And in this case, where the petition was

file-stamped after the jurisdictional deadline and no tangible evidence has been

provided showing that it arrived on time, there is no requirement that the government

offer evidence to prove it was late.

* * *

The majority errs by analyzing this case as if Zhang provided evidence

showing that the petition arrived earlier than the date the clerk’s office states it was

received. She didn’t. Likewise, it errs by asserting that the government is required

to present evidence to disprove jurisdiction when jurisdiction wasn’t established in

the first place. It doesn’t. Because the clerk’s office received Zhang’s petition after

the jurisdictional deadline and—unlike in Sheviakov—no tangible evidence shows

the petition arrived before that date, we lack jurisdiction.