Chao Lin, et al v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 17, 2012
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10100
________________________
Agency No. A070-585-405
CHAO LIN, ET AL.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
______________________
On Petition for Review of an Order
of the Board of Immigration Appeals
_________________________
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
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

-- 1 of 8 --

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 their 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
2

-- 2 of 8 --

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 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
3

-- 3 of 8 --

“We review de novo our subject matter jurisdiction.” Sanchez-Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). “[E]very 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 (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,
4

-- 4 of 8 --

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). Although 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
5

-- 5 of 8 --

(7th Cir. 1998), abrogated on other grounds, Hart v. Sheahan, 396 F.3d 887 (7th
Cir. 2005); Tel. & Data Sys. v. Amcell F Atlantic City, Inc., 20 F.3d 501, 501–02
(D.C. Cir. 1994), but whether a clerk’s office may be considered “inaccessible”
when it is open for business is another matter. Two of our sister circuits have
interpreted Federal Rule of Civil Procedure 6(a) to mean that the deadline for
filing is extended on “any day on which the district court is . . . inaccessible as a
practical matter without heroic measures.” Latham, 149 F.3d at 674; see also U.S.
Leather, Inc. v. H & W Partnership, 60 F.3d 222, 226 (5th Cir. 1995). United
States Leather involved an attorney who was unable to file a post-trial motion on
the day it was due because an ice storm had terminated electrical and telephone
service “in the surrounding area of the courthouse.” U.S. Leather, 60 F.3d at 226.
Travel to the courthouse was “dangerous, difficult, or impossible,” and the
attorney was “was physically unable to leave his home during the storm due to
felled trees and power lines.” Id. “Further, due to the loss of power to the area,
the motions were trapped inside [the attorney’s] computer at his office.” Id.
Latham involved a clerk’s office that was closed on the day after Christmas by a
court order. Latham, 149 F.3d at 674. Other federal courts have read a similar
rule, Federal Rule of Bankruptcy Procedure 9006(a), to mean that total closure
may be necessary to extend the time for filing. See In re Hotel Syracuse, Inc. v.
6

-- 6 of 8 --

Syracuse Indus. Dev. Agency, 154 B.R. 13 (Bankr. N.D.N.Y 1993); In re Bicoastal
Corp., 136 B.R. 288 (Bankr. MD. Fla. 1990).
BiCoastal Corp. is instructive. There, the bankruptcy court ruled that a
clerk’s office was accessible when “weather problems, combined with a series of
mechanical problems, caused lengthy delays in the delivery network on the day in
question.” BiCoastal Corp., 136 B.R. at 289. The court determined that the rule
about accessibility was “intended to extend the time period only when weather or a
natural disaster physically prevents access to the clerk’s office, and not when the
selected method of transmission of the filing fails to arrive at the office of the
clerk for whatever reason.” Id. The court rejected the argument that “reliance on
[a] delivery service was proper and reasonable” so as to excuse an untimely filing.
Id. at 290.
The Lins’ argument fails under any recognized standard for inaccessibility.
No extenuating circumstances are present here. The Lins offer no evidence or
assertion that the weather made it impossible for them to access the Clerk’s office,
nor do they contend that they lacked internet access to file their petition
electronically. The Clerk’s office “was not physically inaccessible due to
inclement weather.” Hotel Syracuse, 154 B.R. at 18. “[T]hat office remained
open . . . and was accessible to the general public.” Id. Although the Lins assert
7

-- 7 of 8 --

that they should not suffer for the delay by Federal Express, they fail to explain
how the Clerk’s office was inaccessible.
The Lins cite three decisions outside our circuit to argue that “extraordinary
circumstances justify[] relief from a late filing,” but those decisions are inapposite.
In those appeals, Oh v. Gonzalez, 406 F.3d 611 (9th Cir. 2005),
Anssari-Gharachedaghy v. INS, 246 F.3d 512 (6th Cir. 2000); and Sun v. U.S.
Dep’t of Justice, 421 F.3d 105 (2d Cir. 2005), our sister circuits considered
whether the Board had abused its discretion in denying an untimely appeal from a
decision of an immigration judge. The Lins fail to cite any decision that suggests
that a circuit court has jurisdiction over an untimely petition for review of an order
of the Board. Because the deadline for filing a petition “is not subject to equitable
tolling,” Dakane, 371 F.3d at 773 n.3, we must dismiss the Lins’ petition for lack
of jurisdiction.
IV. CONCLUSION
The Lin’s petition for review is DISMISSED.
8

-- 8 of 8 --