FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORLANDO TURCIOS, 

Petitioner, No. 05-72258

Agency No.

v.  A18-473-869

ERIC H. HOLDER, JR., Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 15, 2009—San Francisco, California

Filed September 29, 2009

Before: Eugene E. Siler, Jr.,* Andrew J. Kleinfeld, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Siler;

Dissent by Judge Kleinfeld

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

13999
COUNSEL

Martin Avila Robles, San Francisco, California, for the petitioner.

Allen W. Hausman, U.S. Department of Justice, Washington,

DC, for the respondent.

OPINION

EUGENE E. SILER, JR., Senior Circuit Judge:

Orlando Turcios petitions for review of the Board of Immigration Appeals’s (BIA) denial of his motion to reconsider its

rejection of his appeal of an Immigration Judge’s (IJ) decision

as being untimely filed. Because we lack jurisdiction to

review the petition, it must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Turcios is a citizen of Nicaragua. In October 2003, removal

proceedings were commenced against him. The notice to

appear alleged that Turcios was admitted to the United States

TURCIOS v. HOLDER 14001
as a lawful permanent resident in 1968, sought to reenter the

United States in 2003, was paroled into the United States for

deferred inspection, and had his parole was revoked in October 2003. Turcios was previously convicted of sale of

cocaine, felony spousal abuse, resisting arrest, and eight separate instances of petty theft while in the United States. The

notice to appear indicated that he was removable under 8

U.S.C. §§ 1182(a)(2)(A)(i)(I) and (II) for his convictions for

a crime relating to a controlled substance, and a crime involving moral turpitude. At the hearing before the IJ, Turcios

admitted all of his convictions and conceded removability.

The IJ issued the order of deportation. On the order, the IJ

instructed that any appeal to the BIA was “due by 12/23/04.”

On December 22, 2004, one day before the notice of appeal

was due, Turcios’s counsel delivered the notice to Federal

Express for overnight delivery. The notice of appeal was not

received by the BIA until December 27, 2004. 

The BIA entered an order dismissing the appeal as

untimely. Turcios filed a motion before the BIA to reconsider

its decision and reopen his proceedings. His motion explained

that the notice was delivered late due to severe winter weather

conditions. He attached a letter from Federal Express indicating that the late delivery was due to the winter weather.

In March 2005, the BIA denied the motion to reconsider

because the motion merely offered an explanation for late

delivery and did not expose an error of fact or law in the prior

decision. This petition followed.

STANDARD OF REVIEW

This court has jurisdiction over petitions for review to “determine our jurisdiction.” Fernandez-Ruiz v. Gonzales, 410

F.3d 585, 586-87 (9th Cir. 2005), adopted in part by, 466

F.3d 1121, 1124 (9th Cir. 2006) (en banc) (“We adopt the

portion of the panel’s opinion addressing the government’s

14002 TURCIOS v. HOLDER
claim that, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction . . . .”). We review the jurisdictional limitations of the

Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) de novo. Barron v. Ashcroft, 358 F.3d 674, 677 (9th

Cir. 2004).

DISCUSSION

Generally, the Courts of Appeals have jurisdiction to

review final removal orders of the BIA. 8 U.S.C. § 1252(a).

However, Congress has restricted judicial review where an

alien is removable based on a conviction for certain crimes.

8 U.S.C. § 1252(a)(2)(C). Such crimes include those involving moral turpitude (other than a purely political offense), 8

U.S.C. § 1182(a)(2)(A)(i), and a violation of any state law

relating to a controlled substance other than a single offense

of possession of a small quantity of marijuana, 8 U.S.C.

§ 1182(a)(2)(B)(i).

Turcios’s convictions are covered under 8 U.S.C.

§ 1252(a)(2)(C). He admitted that he was previously convicted of sale of cocaine, felony spousal abuse, resisting

arrest, and eight separate instances of petty theft while in the

United States. Petty theft is a crime involving moral turpitude,

United States v. Esparza-Ponce, 193 F.3d 1133, 1135-37 (9th

Cir. 1999), and spousal abuse is a crime of moral turpitude.

Grageda v. U.S. INS, 12 F.3d 919, 922 (9th Cir. 1993). 

[1] As noted by Turcios, the REAL ID Act of 2005 provides that the restriction on judicial review for criminal aliens

be construed so as to preserve this court’s jurisdiction to

address constitutional claims and issues of law raised in petitions for review. Fernandez-Ruiz, 410 F.3d at 587. Turcios

argues that whether the BIA abused its discretion in denying

the motion to reconsider as untimely is a question of law

which this court has jurisdiction to consider. 

[2] In reviewing this question, other courts have determined

that the REAL ID Act does not confer jurisdiction over chalTURCIOS v. HOLDER 14003
lenges to the exercise of routine discretion by the BIA. See De

La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006) (holding that upon review of circuit case law and the legislative

history of Section 106 of the REAL ID Act, nothing in that

section confers jurisdiction over challenges to the exercise of

routine discretion by the BIA); Xiao Ji Chen v. United States,

434 F.3d 144, 151-54 (2d Cir. 2006) (holding that challenges

to the exercise of routine discretion by the Attorney General

(or the IJ as his designee) do not raise “constitutional claims

or questions of law” under Section 106 of the REAL ID Act);

Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005)

(“[Section 106] grants no jurisdiction to review an IJ’s purely

discretionary decision to deny a continuance of a removal

hearing, unless that ruling resulted in such procedural unfairness as to implicate due process.”); Vasile v. Gonzales, 417

F.3d 766, 768 (7th Cir. 2005) (“Notwithstanding § 106(a) of

the [REAL ID] Act, . . . discretionary or factual determinations continue to fall outside the jurisdiction of the court of

appeals entertaining a petition for review.”); Gattem v. Gonzales, 412 F.3d 758, 767 & n.8 (7th Cir. 2005) (holding that,

under Section 106, the Courts of Appeals have jurisdiction to

consider “question[s] of law” raised in petitions for review,

but not discretionary decisions of the Attorney General). 

[3] Turcios challenges only the BIA’s denial of discretionary relief of reconsideration of its prior decision dismissing

the untimely notice of appeal. He does not raise any constitutional challenges, nor does he raise any questions of law as

contemplated by the REAL ID Act. Since the BIA’s denial of

Turcios’s motion to reconsider was an exercise of routine discretion, we dismiss for lack of jurisdiction.

DISMISSED.

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent. I am filing the same dissent in

Irigoyen-Briones v. Holder, No. 07-71806 and Turcios v.

14004 TURCIOS v. HOLDER
Holder, No. 05-72258, because these two cases raise identical

legal issues, in materially similar factual and legal contexts.

The issue in both cases is whether the Board of Immigration

Appeals ought to have considered an appeal that was sent in

time to arrive before the deadline, and was guaranteed by the

shipper to arrive in time, but got stamped in at Board headquarters the day after the due date. The merits are not at issue

before us, just lateness. The issue of lateness affects innumerable cases, and it is a matter of chance whether an alien

attempting to appeal falls into this pit.

In Turcios, the alien’s lawyer attached to his motion for

reconsideration a letter from FedEx Express. FedEx says that

although “the shipment was due for delivery by 10:30 a.m. on

December 23 . . . severe weather conditions caused an extensive and lengthy disruption of our transportation system, and

thus the parcel did not reach its destination on the anticipated

date. Delivery was completed on December 27 at 10:00 a.m.”

In Irigoyen-Briones, the alien’s lawyer personally brought

the notice of appeal to the post office first thing in the morning for guaranteed express mail delivery the next day, which

would have been timely. However, for the first time in over

ten years, Irigoyen-Briones’s attorney was let down by late

Express Mail delivery. A clerk told her that some sort of error

appeared to have been made by the post office at the airport

in Virginia. The post office error caused the notice of appeal

to get to the BIA a day late.1

Although the BIA interprets the statutes and regulations as

requiring that filing deadlines be strictly enforced, the BIA

also acknowledges that it has the authority to relieve litigants

from the consequences of late filing for “exceptional circum1With the drollness characteristic of these sorts of errors, FedEx said

that it regretted “any inconvenience,” and the United States Postal Service

offered to refund the postage counsel had paid for guaranteed next day

delivery. 

TURCIOS v. HOLDER 14005
stances.”2

 The BIA, in both cases, followed its own panel

decision in In re Liadov,

3

 which held that “short delays by

overnight delivery services” are not “extraordinary,” so “appellants must take such possibilities into account and act accordingly.”4

 The only place notices of appeal can be filed is Falls

Church, Virginia,5 so evidently “act accordingly” means fly to

one of the D.C. area airports or send the notice at some

unknown and unpredictable time prior to the deadline so that

the BIA would think the delivery service delay “extraordinary.” The Board holds that even though it lacks authority to

extend the thirty day deadline, it does have authority to “certify a case to itself under 8 C.F.R. 1003.1(c)” ”where a case

presents exceptional circumstances.”

6

Oddly, the BIA does not provide for any means of filing

notices of appeal other than showing up in Falls Church,

Virginia—not a trip most aliens could afford to pay their lawyers to make from outside the Beltway—or sending the

papers by post office or private delivery service. Federal

courts, no seekers of novelty themselves, generally provide

for electronic case filing.7 The Federal Rules of Civil Procedure expressly address electronic filing.8

 Doubtless electronic

2

See 8 C.F.R. § 1003.1(c); In re Liadov, 23 I&N Dec. 990 (BIA 2006).

3

23 I&N Dec. 990 (BIA 2006). 

4

23 I&N Dec. at 993. 

5

See Executive Office of Immigration Review, U.S. Dep’t of Justice,

Form EOIR-26, *1 (2008), http://www.usdoj.gov/eoir/eoirforms/

eoir26.pdf. 

6

In re Liadov, 23 I&N Dec. 990, 993 (BIA 2006). 

7

See, e.g., 9th Cir. Admin. Order Re Electronic Filing (Nov.10, 2008);

3d Cir. R. 25.1; 4th Cir. Admin. Order 08-01 (Apr. 1, 2008); 6th Cir.

Admin. Order 08-01 (May 7, 2008); 8th Cir. R. 25A; 10th Cir. Gen. Order

95-01 (Mar. 18, 2009); D.C. Cir. Admin. Order (May 15, 2009); D. Alaska

R. 5.3; C.D. Cal. Gen. Order 08-02 (Feb. 7, 2008); E.D. Cal. R. 5-133;

N.D. Cal. Gen. Order 45 (Nov. 18, 2004); S.D. Cal. R. 5.4; D. Haw. Gen.

Order (May 1, 2006); D. Idaho R. 5.1; D. Mont. R. 5.1; D. Or. R. 100.3;

E.D. Wash. R. 5.1; W.D. Wash. R. 5. 

8Fed. R. Civ. P. 5(d)(3). 

14006 TURCIOS v. HOLDER
filing saves attorneys in places like Alaska, or for that matter

most of the rest of the country, a great deal of money on ulcer

medicine, and more important, saves their clients from the

risk of arbitrary horrendous consequences due to chance post

office and delivery delays. It was an Act of God that weather

prevented timely delivery of Turcios’s FedEx package, but

the consequence of that late delivery was easily avoidable by

people at the agency. Just as we have for many decades

assumed the availability of telephones, automobiles, and airplanes, we ought to be able to assume the availability of email

over the internet.

The Board has tossed a couple of red herrings across the

path to justice. First, it says that the thirty day deadline is

jurisdictional and it lacks authority to extend it. But as the

Board says in Liadov, it nevertheless retains authority to grant

relief from late filing in “exceptional” or “extraordinary” circumstances. Second, the Board says it does not have a “mailbox rule.” This argument is irrelevant, because no one argues

that it does. A “mailbox rule” means that an act is deemed

accomplished when the required submission is mailed as

opposed to when it is received or filed. For example, a “mailbox rule” lets us comply with the April 15 due date for tax

returns by mailing them that day,9 and lets attorneys comply

with motion and opposition deadlines by service, that is, mailing, rather than receipt or filing.10 The lawyers for Turcios and

Iriguyen-Briones contend, not that the notices of appeal

should be deemed filed when they sent them, but rather that

they ought to be relieved from lateness because they sent

them such that ordinarily they would have been received

timely.

Liadov, on which the Board relies in both these cases, itself

relies heavily on the Board’s own Practice Manual, for which

9

26 U.S.C.A. § 7502(a). 

10Fed. R. Civ. P. 5(b)(C). 

TURCIOS v. HOLDER 14007
it gives an internet citation.11 The disclaimer at section 1.1(c)

of the manual says it does not carry the force of law or regulation and should not be relied on, so Auer and Chevron deference to it would be inappropriate. The Manual says that

“[b]ecause filings are date-stamped upon arrival at the Board,

the Board strongly recommends that parties file as far in

advance of the deadline as possible, and, whenever possible,

use overnight delivery couriers, (such as United Parcel Service, Federal Express, Airborne Express, DHL) to assure

timely receipt.”

12 We said in Oh v. Gonzales13 that “use of one

of the overnight delivery services the BIA expressly recommends . . . would appear to qualify [petitioners] 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 [petitioners] proffered excuse.” Here,

the BIA simply brushed aside Turcios’s and IrigoyenBriones’s explanations for the lateness of their notices of

appeal and deemed them untimely filed, even though both

provided persuasive evidence that they had acted reasonably

to cause timely filing.

Once we get past the red herrings, the remaining question

is whether the Board may, in interpreting the statute under

which it operates and the Constitution, refuse to hear appeals

where the aliens have done what is reasonably necessary,

using the carriers the Board recommends, to assure that their

appeals have been filed on time, and through no fault of their

own, the papers are stamped in late. In my view, the principle

of constitutional avoidance14 requires that the statute and regu11Board of Immigration Appeals Practice Manual, http://

www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm 

12BIA Prac. Man. § 3.1(b). 

13406 F.3d 611, 613 (9th Cir. 2005). 

14See Public Citizen v. United States Department of Justice, 491 U.S.

440, 466 (1989) (“It has long been an axiom of statutory interpretation that

where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid

such problems unless such construction is plainly contrary to the intent of

Congress.”) (quotation omitted). 

14008 TURCIOS v. HOLDER
lation be construed if possible to require that such notices of

appeal be deemed timely. In the absence of such a construction, the Board’s rigid position denies aliens due process of

law. 

As the majority concedes, we held in Oh v. Gonzales15 that

the time limit for appeal to the BIA was subject to discretionary relief. We further held that its construction of its filing

deadline—limiting relief to sua sponte reconsideration in

exceptional circumstances—was an error of law. To my mind,

it stretches deference to administrative agencies too far to

hold, as the majority does, that by insisting on its error,

Liadov makes the error good law. We defer only to reasonable

constructions. Liadov is not a reasonable construction by the

BIA of its regulations, because this construction deprives

aliens who attempt to appeal of due process of law.

The Second Circuit in Zhong Guang Sun v. U.S. Dep’t of

Justice joins our view in Oh and cites language consistent

with our view from the Sixth, Seventh, and Eighth Circuits.16

Where the petition came in several days late because of an

Airborne Express error, the Second Circuit holds that the BIA

did not lack jurisdiction, and remands because failure of

timely delivery by a courier service designated in the BIA’s

practice manual “may well, indeed, fall within the realm of

the ‘extraordinary’ if not the ‘unique.’ ”

17

15406 F.3d 611 (9th Cir. 2005). 

16421 F.3d 105, 111 (2d Cir. 2005). The Eighth Circuit has now upheld

the Board’s construction against a due process challenge. Liadov v.

Mukasey, 518 F.3d 1003, 1012 (8th Cir. 2008). Other circuits have as well,

but in decisions predating the Supreme Court’s clarification that nonstatutory time limits are not jurisdictional. Bowles v. Russell, 551 U.S. 205

(2007); see Liadov, 518 F.3d at 1008-09 & n.4; Khan v. U.S. DOJ, 494

F.3d 255, 258-59 & n.4 (2d Cir. 2007) (concluding in light of Bowles that

the regulatory time limit was not jurisdictional). 

17Zhong Guang Sun, 421 F.3d at 111. 

TURCIOS v. HOLDER 14009
The agency’s interpretation conflicts with the Supreme

Court’s interpretation in Houston v. Lack.

18 Even though federal courts of appeal deadlines for filing notices of appeal are

jurisdictional, Houston holds that pro se prisoners are deemed

to have filed timely when they have not actually filed, but

have timely tendered their papers to prison officials. And, the

last day is fine—they need not have given their papers to

prison officials a few days before the filing deadline. The reason is that they “ha[ve] done all that could reasonably be

expected” to file on time.19 Substituting “aliens” for “prisoners” in Houston’s ratio decidendi suggests that Houston ought

to be extended to aliens.

Such [aliens] cannot take the steps other litigants can

take to monitor the processing of their notices of

appeal and to ensure that the [clerk] receives and

stamps their notices of appeal before the 30-day

deadline. Unlike other litigants, [aliens] cannot personally travel to [Falls Church, VA] to see that the

notice is stamped “filed” or to establish the date on

which the [board] received the notice. . . . No matter

how far in advance the [aliens] delivers his notice to

[the mailing service], he can never be sure that it

will ultimately get stamped “filed” on time.20

We extended Houston to aliens’ appeals to the BIA in

Gonzalez-Julio v. INS.

21 There we went so far as to hold that

the then-ten day limit for filing notices of appeal denied due

process of law. The reason was that there were “two risks of

delay which were not in the aliens control: delay in mail

delivery and delay in filing after receipt by the Office.”

22

18487 U.S. 266 (1988). 

19Id. at 270. 

20487 U.S. at 270-71 (emphasis in original). 

2134 F.3d 820 (9th Cir. 1994). 

2234 F.3d at 823. 

14010 TURCIOS v. HOLDER
Applying the principle enunciated by the Supreme Court in

Logan v. Zimmerman Brush Co.23 we held that the alien was

entitled by the Due Process Clause to an opportunity to be

heard on his appeal “at a meaningful time and in a meaningful

manner.”

24 In Gonzales-Julio, fifteen years ago, we noted that

the BIA could obviate much of the problems reasonable

accommodation could cause by allowing filing within a reasonable distance of the alien’s residence instead of limiting it

to Falls Church, Virginia. Now, fifteen years later, the government’s justification for requiring physical filing in Falls

Church has become technologically obsolete, and the practicality of enforcing a rigid filing date without arbitrariness

much greater, because the Board could easily adopt electronic

filing. There would be nothing wrong with a rigid filing deadline if it could be complied with from anywhere in this huge

country by email. A rigid deadline is fundamentally unfair if

people cannot assure their own compliance. 

The BIA’s answer to the application of the Houston “not

within his control” justification for requiring acceptance of

late filing is that the alien should “file as far in advance of the

deadline as possible.”

25 That answer is constitutionally unsatisfactory because a person with fundamental interests at stake

is entitled to certainty about when he must ask to be heard in

order to get a hearing. Nor is thirty days so long a time that

a few days here or there should not matter to the alien. The

alien owns the thirty days. He needs to know, for purposes of

filing on time, exactly when they end. 

All of the thirty days are likely to be essential. Aliens’

appeals are not, by and large, handled by giant spare-noexpense law firms, in which a partner can command a senior

associate who can command a junior associate to have something on his desk by 9:00 A.M. Monday without fail, and

23455 U.S. 422 (1982). 

24Gonzalez-Julio, 34 F.3d at 823 (quoting Logan, 455 U.S. at 437). 

25Liadov, 23 I. & N. Dec. at 992. 

TURCIOS v. HOLDER 14011
whatever expenses are necessary to accomplish that will be

borne. The record in Iriguyen-Briones describes the details of

a typical case, and there is no reason to doubt that they are

typical. The alien had lost his case before the IJ pro se, just

before Christmas on December 18, and came to a lawyer’s

office right after New Year’s, January 4. The lawyer could not

do anything without listening to the Immigration Court’s

tapes (not yet transcribed, of course), and needed a retainer

before investing the time to do so. The alien needed a few

days to raise some money, came in with enough the following

Monday, counsel got an appointment with the Immigration

Court to listen to the tapes Thursday, and drove the 45 miles

to the court. Counsel then researched the applicable law necessary to formulate the notice of appeal on that day and the

next (Friday) and prepared the notice. Monday was Martin

Luther King day, so counsel drove to the post office herself

first thing in the morning Tuesday, and sent the papers

express mail for guaranteed delivery Wednesday, which is

when they were due. She did not drop the ball, the post office

did, and as is common, all thirty days were reasonably necessary for the task (too short, actually—the tapes ran longer

than the time the Immigration Court had for counsel to listen

to them on Thursday before the next lawyer’s appointment).

“The fundamental requisite of due process of law is the

opportunity to be heard.”

26 The interest at stake in immigration cases, as in many others, is very important. Though some

are frivolous, some are an alien’s only chance to avoid unjustified destruction of his family or even torture and death in

some benighted country. Due process of law requires that the

government refrain from destroying life, liberty, or property

with fundamentally unfair procedure. It does so if it denies a

person an opportunity within his control to be heard. In these

two cases, that is what it did. What is worse, the government’s

important interest in proceeding expeditiously with these

cases and requiring compliance with reasonable time limits

26Grannis v. Ordean, 234 U.S. 385, 395 (1914) 

14012 TURCIOS v. HOLDER
can easily be protected, without subjecting aliens to the risk

of losing their appeals to bad weather or post office error. All

it need do is what courts and private companies routinely do:

allow people to email their notices of appeal. It is a cruel

irony that the Board publishes the manual that lawyers are

supposed to use as guidance on the internet, yet pretends the

internet does not exist when it comes to receiving papers as

opposed to distributing them. 

TURCIOS v. HOLDER 14013