U.S. Court of Appeals for the Ninth Circuit, 2004

Ramirez-Ramirez v. Ashcroft

U.S. Court of Appeals for the Ninth Circuit · Decided April 20, 2004 · Pregerson

95 F. App'x 257

Opinion of the Court

ORDER *

Ramirez-Ramirez’s petition for review was filed 31 days after the date of the Board of Immigration Appeal’s decision. We dismiss the petition for lack of jurisdiction. See 8 U.S.C. § 1252(b)(1) (“[t]he petition for review must be filed not later than 30 days after the date of the final order of removal”).

PETITION FOR REVIEW DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Dissenting Opinion

PREGERSON, Circuit Judge,

Dissenting.

We have recognized that “where there has been official misleading as to the time within which to file a notice of appeal, the late notice may be deemed to have been constructively filed within the jurisdictional time limits.” Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980) (collecting cases).

The BIA’s Order of Removal is date-stamped September 16, 2002, ostensibly making the Petition for Review due on October 16, 2002 — “30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). But the transmittal notice/cover letter from BIA Clerk’s office, on which Petitioner’s counsel relied to determine the date the Petition was due, states that the “D ate of this notice” is September 17, 2002.1 Similarly, the Exec*258utive Office of Immigration Review’s automated phone tree system (1-800-898-7180), which Petitioner’s counsel used to verify the status of Petitioner’s case, told counsel that the BIA’s Order was dated September 17, 2002.2

The majority ignores Hemandez-Rivera and faults Petitioner for filing his Petition for Review one day late. I dissent because Petitioner was “officially] misle[d]” by the Attorney General as to the date of the BIA’s Order of Removal and the deadline for filing the Petition for Review.

. During the calendar week in which this matter was heard, we considered appeals in 22 additional immigration matters. In every one, the dates of the BIA’s order and the transmittal notice/cover letter are the same.

The date on the BIA’s orders is stamped with a rubber stamp that uses dials to change the month, day, and year. The date on the transmittal notice/cover letter is generated by computer. The only logical explanation for the differing dates in this case appears to be that whoever stamped the BIA’s order forgot to turn the day dial from "16” to "17.” Were *258it provable that this actually happened, the effective date of the BIA’s Order of Removal would be September 17, 2002, and the Petition for Review would have been timely filed.

. The "Index” to the Certified Administrative Record, prepared by the Department of Justice’s Office of Immigration Litigation, states that the "Decision of the Board of Immigration Appeals” was September 17, 2002 — not September 16, 2002. Petitioner did not detrimentally rely on the Index’ representation that the BIA’s Order was dated September 17, 2002 because the Certified Administrative Record was prepared on March 20, 2003 — • over five months after Petitioner filed his Petition for Review. Nevertheless, the Index is strong evidence that the differing dates on the BIA’s Order and transmittal notice/cover letter are misleading. Even the Department of Justice's Office of Immigration Litigation, which is in a much better position than Petitioner to properly interpret BIA documents, was misled.

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