I’m really glad to be joining my colleagues here at Madisonian.net, and appreciate the invitation. I hope I can contribute something to the conversation.
As a start, I thought I would make note of Judge Bybee’s Kleinfield’s dissent in two cases decided this week by the Ninth Circuit Court of Appeals (he filed the same dissent in both appeals, though the cases were issued as separate majority opinions, the reasoning was pretty much identical in each): Irigoyen-Briones v. Holder [pdf] and Turcios v. Holder [pdf] (both on appeal from the Board of Immigration Appeal). The majority opinions hold (in brief) that where an agency’s rules require delivery of notices of appeal by a certain date, parties or their lawyers cannot expect to be excused for late delivery, even if it is not their fault (in the two cases, each lawyer had mailed the papers timely by overnight mail, one with the U.S. Postal Service the other with FedEx, but in each case delivery was late due to no fault of the lawyer involved).
Judge Kleinfield disagrees with the majority’s analysis, but what is particularly interesting here is that he is apparently miffed with the Board of Immigration Appeal for not making electronic filing available:
Oddly, the BIA does not provide for any means of filing notices of appeal other than showing up in Falls Church, Virginiaâ€”not a trip most aliens could afford to pay their lawyers to make from outside the Beltwayâ€”or sending the papers by post office or private delivery service. Federal courts, no seekers of novelty themselves, generally provide for electronic case filing. The Federal Rules of Civil Procedure expressly address electronic filing. DoubtlessÂ electronic 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 Turciosâ€™s FedEx package, but the consequence of that late delivery was easily avoidable by people at the agency. Just as weÂ have for many decades assumed the availability of telephones, automobiles, and airplanes, we ought to be able toÂ assume the availability of email over the internet.
After discussing the due process requirement that parties be given a reasonable opportunity to be heard, he concludes his dissent(s):
[T]he governmentâ€™s important interest in proceeding expeditiously with these cases and requiring compliance with reasonable time limits 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.
While not saying it explicitly, I wonder if Judge Kleinfield thinks that electronic filing is, or may soon become, or should become, a due process requirement. There are certain things, as he notes, in favor of such an approach. Certainty that the papers are where they are supposed to be when they are supposed to be there; electronic confirmation is available, for example, as with tax filings and court filings. And while technological methods can also fail, it is readily apparent to everyone that they have done so (and a reasonable rule can be put in place in those circumstances). I find the idea that due process may require government agencies to accept electronic papers intuitively appealing. Whether a Constitutional case can actually be made for it is something that we should think further about, especially because the entire situation could have been avoided if the Board of Immigration Appeal had simply adopted the mailbox rule for filings (or had been willing to use its discretion to excuse the late filings in these two cases).
Edited to fix the Judge’s name (thanks Klerk! Bybee wrote a dissent in Aguilar-Turcios v. Holder [pdf], an unrelated immigration case that I obviously confused with Turcios v. Holder when I wrote it up!).