1 The Honorable Ric hard M. Berman, of the Unit ed Stat es Dist

rict Court for

the Southern Dist

rict of New York, s itt ing by des ignat

ion. 1 06-2995 Khan v. Gonzal es

UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2006 (Submitt ed: June 29,

2007 Decided: Ju ly 10, 2007) Docket No. 0 6-2995-ag T AHIR A LI K

HAN , Petitioner ,

v. U.S. D EPARTMEN T OF J USTICE , A TTORNEY G ENERAL A LBER TO R. G ONZALES , Respondents. Before: C

ABRANES and R

AGGI , Circuit Judges , and B ERMAN , 1 District Judge

. Petition er seeks r

eview of an or

der of the Board of Immigrat ion Appeals (“BIA”) d enying his motion to reconsider an earlier BIA order that dismissed as untimely an appeal from an Immigration Judge’s in absentia

order of removal. We co nclude that, in this p articular case, the Su

preme Cour

t’s recent decision in Bowles v

. Russell , – U.S. – , 127 S. Ct. 2360 (2007), does not require overruling our Court’s decision in Zhong Guang Sun v. U.S. Department of Justice , 421 F.3d 10 5 (2d Cir. 20 05), which h eld that extr aordinary o r unique cir

cumstances

may excuse th e untimely f iling of an ap peal with th e BIA. We also conclude that remand is warranted in the instant case because there are indica tions that the BIA did no t consider

whether pet

itioner had establis hed such cir cumstances . Petition for review granted.2 Khagendra G

harti Chhet

ry, Chhetr y & Associat

es, P.C., N ew York, NY, for Petitioner. E. Bryan Wils on, Assis tant Unite d States At torney (G regory R. Miller, Un ited States Attorney, on the brief

), United Stat

es Attorney’ s Office f

or the Nor

thern Dis trict of

Florida, Tallahass ee, FL, for Respondents

. J OSÉ A. C ABRANES , Circuit Judge : Petitioner Tahir Ali Khan, a native and citizen of Pakistan, seeks review of an order of the Board of Immigrat ion Appeals (“BIA”) d enying his m otion to r econsider an earlier B IA order t

hat dismissed as untimely an appeal from an in absentia order of removal is sued by Im

migration Judge (“I J”) Michael W. St

raus. In re Khan, No. A 47 270 257 (B.I.A. May 31, 2006). Petitioner argues that the BIA failed to co nsider wh ether he had presente d extraor

dinary or u

nique circu

mstances excusing hi s untimely appeal, pursuant to our Court’s decision in Zhong Guang Sun v. U.S. Department of Justice , 421 F.3d 105 (2 d Cir. 2005) . We ordered supplemen

tal briefi ng on the re

levance vel non

of the Supreme Court’s recent decision in Bowles v . Russell , – U.S. – , 127 S. Ct. 2360 (2007), which held that time limits for filing civil appeals with the United States Courts of Appeals are jurisdictional and do not allow for equitable exc eptions. We conclude th at, on the f acts and pr

ocedural hi story of

the instan

t case, (1) Bowles does not r

equire over

ruling Zhong Guang

Sun , and (2) the BIA did not prop erly consider whether petitioner presented circumstances excusing his untimely filing of an appeal. We therefore grant the petition for review, vacate the BIA’s order denying reconsideration, and remand the case to the BIA for proceedings consistent with this opinion. BACKGROUND Petitione r is a nativ e and cit izen of Pa kistan wh o receiv ed lawfu l permane nt resident status in 1999 thr

ough an appli cation file d by his Uni ted Statescitizen fat

her. Upon petitioner’s return to the United Stat

es from a t

rip to Pak istan in F ebruary 200 4, immigrat ion author

ities dis covered tha

t petitioner had a 1991 conv

iction in t he State of G eorgia for

the poss ession an d sale of ma rijuana.2 A Notice of Appeal to the BIA of an I

J’s decisi on “shal

l be f il ed direct

ly wit h the [ BIA] with in 30 cal endar days aft er the stat

ing of an [IJ ’s] oral

decisi on or t he mailing of an [ IJ’ s] wri tten decisi on.” 8 C.F.R. § 1003. 38(b) . “I f the final date for filing fall s on a Saturd ay, Sund ay, or legal holiday, this appeal time shall be extende d to the next business day.” Id. The dat e t he B IA receives the N otice of A ppe al is the date of filing

. Id. § 1003 .38(c).

3 Becau se Christma s fell on Sunday that year, the day after C hristmas— Mo nday, D ecem ber 26, 2005

— was a legal holi day. 3 Petitioner subsequently received an April 5, 2004 Notice to Appear in removal proceedings. The Notice to Appear charged that petitioner was subject to removal because (1) he had been conv icted of a controlled substance offense, (2) he had sought to procure a visa, other documentation, admission to the United States, or some other immigration benefit through fraud or the willful misrepresentation of a material f

act, and (3) at the time o f his appl ication for

admissio n, he lacked val

id entry do cuments. On November

25, 2005, aft

er a change of

venue and sev

eral contin

uances, IJ Straus or

dered petit

ioner removed in absentia

and denied pet

itioner’s application s for canc ellation of removal, wai

ver of rem oval, and adju stment of sta tus. The BIA received a Notice of Appeal in petitioner’s case on December 28, 2005. Howeve r, pursuant to 8 C.F.R. § 1 003.38, 2 petitioner ’s Notice o f Appeal was d ue on or bef

ore December

27, 2005. In a February 10, 2006 order, the BIA dismissed the appeal “for lack of jurisdiction” due to untimeliness and instructed petitioner that “a motion to reconsider challenging the finding that the appeal was untimely” must be filed with the BIA rather than the IJ. Petitioner then filed a timely motion for reconsideration with the BIA. In this motion, petitioner’s counsel alleged that a member of his staff dropped off the appeal package at an office of the Federal

Express c ompany (“F edEx”) on Dec ember 23, 20 05. Althoug h petition er’s coun sel believed that

the package wou

ld be deliver

ed on the next busines s day—Decemb er 27, 2005 3 —the package was not

shipped un

til December

27, 2005 and wa s theref

ore not del

ivered unt il December

28, 2005. Thus, according to petitioner’s counsel, the untimely filing was due to a mistake by FedEx and beyond his control.4

In a May 31, 2 006 order , the BIA d enied petit ioner’s m otion to r

econsider . The BIA

first n oted that petitioner’s motion for reconsideration of the dismissal for “lack of jurisdiction” was timely. The BIA then s tated that

petitioner ’s motion

included th e following

explanation

from Fed Ex: “Pkg was r

ec on Dec 23rd

to go out n ext bus day,

next bus d ay was Dec 27th due to long w

eekend due to

holiday.” Based on this explanation, the BIA concluded that “there was no error on the part of FedEx with respect t o mail deliver

y.” In re Khan, No. A 47 270 2 57 (B.I. A. May 31, 200 6). Petition er sought

timely revi ew of the BI

A’s May 31, 2 006 order

in our Cour

t. Petiti oner argues that the B IA failed t

o consider

whether he p resented

“extraord inary or un

ique circum stances s uch that [his] app eal should have been heard , despite t he untimeli

ness of t he filing.” Zhong Guang

Sun , 421 F.3d at 111 (internal quotation marks omitted). After the parties submitted briefing in the instant case, the Supreme Court decided Bowles v . Russell , which held t

hat “the tim ely filing of

a notice of ap peal in a civil case is a j urisdictio nal requi rement” a nd that co urts have n o “authori ty to crea te equita ble exce ptions” to such requirement s. See

127 S. Ct. at 2366. We ordered supplemental briefing on whether Bowles is relevant to the time limits applicable to appeals filed with the BIA. The Government argues that Bowles is on poin t and requi

res us t o overrule Zhong Guang

Sun

. DISCUSSION I. Whether the Supreme Court’s Opinion in Bowles Requires O verrulin

g Zhong Guang

Sun We first consider whether Bowles requires us to re-evaluate our Court’s holding in Zhong Guang Sun , which perm

its the B IA to hear u

ntimely appe als in “extr

aordinary o r unique cir

cumstances .” See Meacham v. K

nolls Ato mic Power Lab. , 461 F.3d 134, 141 (2d Cir. 2006) (“While ‘as a general rule, one panel of th

is Court c annot over

rule a prio r decision

of another

panel[,] an ex ception to

this gener

al rule arises where there has been an intervening Supreme Court decision that casts doubt on our controlling precedent. ’” (alterat

ion in orig

inal) (quo ting Union of Needletrades, Indus. & Textile Employees v. INS , 336 F.3d 200, 210 (2d Cir. 2003))). In Bowles , the Supreme Court repeatedly emp hasized the statutory origin5

of the tim e limits f

or appealing

a distric t court’s

judgment in

a civil case. See, e.g. , 127 S. Ct. at 2362 (“In this case, a District Court purported to extend a party’s time for filing an appeal beyond the period allowed by st

atute.”); id. at 2364 (“Although several of our recent decisions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules, none of them calls into question our longs tanding tr

eatment of

statuto ry time lim

its for taking an appe al as juris dictional.” ); id. at 2365(“Jurisdictional treatment of statutory time limits makes good sense.”). The Court distinguished “courtpromulga ted rules” from “limit s enacted by Congre ss,” and it e xplaine d that “[b] ecause C ongress decides whet

her feder al courts can hear cases

at all, it can al so determ

ine when, and u

nder what condition s, federal

courts can

hear them.” Id. at 2365. Thus, “when Congress forbids federal courts from adjudicating an o therwise legitimate ‘c lass of cas es’ after

a certain per

iod has elap sed from

final judgment ,” the effe cts are the same as wh en a fede ral court l acks subje ct matter j urisdictio n over a c lass of cases. Id. at 2366. Because Bowles

was concern ed exclusiv

ely with congr

essional l imitation s on judicial authorit y,

we must con sider what

, if any, st atutes im pose the t ime limitsat issue i

n the inst ant case. Asan initial matter, we note that the time limits here are for administrative appeals (not judicial appeals as in Bowles ) and that administrative agencies have broad discretion to interpret the statutes they are charged with implementi

ng. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 , 842-44 (1 984). Yet even if the jurisdictional principles articulated in Bowles apply to statutory time limits placed on administ rative appeal s—a quest

ion on which

we intimate n o view—we fin d no such r elevant st atutes in petitioner ’s case. Neither the BIA’s May 31, 2006 order denying petitioner’s motion for reconsideration at issue here, nor the BIA’s earlier order dismissing petitioner’s appeal, relied on any statutory provisions governing time limits for appeals to the BIA. Rather, when discussing the relevant time limits, the BIA cited only t

he regulati ons at 8 C.F .R. § 1003.38. See note 2 ante

(quoting r

elevant por

tions of 8 C.F.R. §4 Since this is not a case in which a petitioner pursu es a claim of asylum , we need not addre ss whether Bowles

would indeed p rohibit equitable exceptions to the time ly appeal of dec isions made o n asylum applications. 6 1003.38). Moreover, our Court in Zhong Guang Sun made no me ntion of an y statutes u ndergirdi ng those regulation s. See Zhong

Guang Sun , 421 F.3d at 107-08 & n.4. The Government’s principal brief to our Court likew

ise did not

indicate th at there exi sts a st atutory ba sis for

the BIA’s dismiss al of petit

ioner’s appeal. Surprisingly, in its supplemental brief to our Court, the Government argues that the time limits for appeals

to the BI A are statu

tory. As support for this proposition, the Government draws to our attention the statutory scheme governing asylum applications, which instructs the Attorney General “to establish a procedure for the consideration of asylum applications,” 8 U.S.C. § 1158(d)(1), and mandates this procedure to provide that “any administrative appeal shall be filed within 30 days of a decision gr

anting or d enying asylu

m, or with

in 30 days of

the complet

ion of rem oval proceed

ings before an im

migration judge . . . , wh

ichever is later,” id. § 1158(d)( 5)(a)(iv) . Yet the ins tant case do es not involve an asylum application; and although the petitioner in Zhong Guang Sun did appeal to the BIA from a deni al of his a pplicat ion for asyl um under 8 U .S.C. § 1158, the petitione r in that ca se also appealed from denials of his application fo r withhold ing of rem oval under 8U.S.C. § 1231(b)(3)—which does not specify a time limit for filing an appeal—and for relief under the Convention

Against T orture u

nder 8 C.F.R. §§ 1208.16(c) and 1208.17( a). Thus , Zhong Guang

Sun ’s interpretation of the regulations governing general administrative appeals to the BIA (such as appeals of decisionson applicati ons for withholdin

g of remov

al and CAT rel

ief) would survive, even if 8 U.S. C. § 1158(d)(5)(a)(iv) could be read to place a jurisdictional bar on untimely appeals to the BIA from decision s made on a sylum app licatio ns. 4 Accordingly

, we do not s ee how Bowles could “cast [ ] doubt o n our cont rolling pr ecedent” in this peti tioner’scase. Meacham

, 461 F.3d at

141. Zhong Guang

Sun remains good law (at least with7

respect t o non-asyl um claims) , and upon t

imely filin g of his mo tion for

reconsid eration, p etitioner was not jurisdi ctional ly barred from establ ishing ex traordina ry or unique circumsta nces that w ould exc use his untim ely appeal. II. Whether the BIA Considered the Standard for Exceptions to Timeliness Under Zhong Guang Sun Having determined that Bowles does not upset our Court’s precedent in the instant case, we now turn to whether the BIA erred (or “abused its discretion”) in denying petitioner’s motion for reconsid eration. See Jin Ming Liu v. Gonzales , 439 F.3d 109, 111 (2d Cir. 2006) (“The BIA’s denial of a motion to reconsid er is revi ewed for abu se of dis cretion.”) . The BIA “abuses it s discre tion” in dismiss ing an appeal asuntimely wh en it does n ot consid er whether the reason s given for

an untimely appeal const

itute extr aordinary o r unique cir

cumstances . See Zhong

Guang Sun , 421 F.3d at 111. We do not lightl y infer such omiss ions on th e part of ad ministr ative adjudi cators or, for that matter, di strict

courts. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 31 5, 336 n.17 ( 2d Cir. 2006

) (noting that an IJ is presumed to have considered all of the evidence before him unless the record compels otherwise); United States v. Fernandez

, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the

statuto ry factor s [under

18 U.S.C. § 355 3(a)].”). We think, how ever, that r

emand is war

ranted in t his particular case, given sufficient indicia that the BIA did not consider the limited equitable exceptions to the timely filing of appeals discussed in Zhong Guang Sun

. In its May 31, 2006 order, the BIA neither mentioned the standard for equitable exceptions articulated in Zhong Guang

Sun , nor cited any case law applying that standard. Additionally , the BIA referred to its February 10,

2006 order

as “dismi ssing [p etitioner ’s] appeal f or lack of j urisdict

ion as it was untimely filed.” Such jurisdictional language suggests that the BIA assumed there were no equitable exceptions to the time limits for appeals provided by regulation. Finally, although the BIA concluded t

hat FedEx had

not erred with resp ect to deliv

ery of peti tioner’sappeal package, Zhong5 We take no vie w of how the BIA s hould ult imatel y resol ve thi s quest

ion. 8 Guang Sun does not state that extraordinary or unique circumstances exist only when overnight carriers commit errors. If the BIA concludes that petitioner’s justification for untimely filing does not present extraord inary or un

ique circum stances, i

t must pr ovide a “reas oned explanat ion” for wh

y this is so. See Zhong Guang

Sun , 421 F.3d at

111. Thisexplanation

need not be el

aborate or extensive,

but it sh ould at least acknow

ledge the avail

ability of r elief in appr

opriate cir cumstances . The combi

nation of t

he above factors convinces us that we should permit the BIA to consider whether petitioner’s motion for reconsid eration—wh

ich descri bes petit ioner’s co unsel as d

ropping of

f petitio ner’s appe al package at FedEx with the understanding that it would be delivered on time—establishes extraordinary or unique circumstances allowing the appeal to be heard under Zhong Guang Sun

. 5 For the rea sons stated a bove, the petition f or review is GRANTED , the BIA’ s May 31, 20 06 order is VACATED , and the c ase is REMANDED to the BI A for pro ceedings con sistent with this opinion. In view of o ur dispositi on, petiti oner’s moti on for a stay of deporta tion is DENIED as moot.