Saturday, November 21, 2009

Rodrigues (not precedential): BIA Erred In Ruling Notice Of Appeal Was Untimely

Rodrigues v. Holder
No. 09-4077
November 13, 2009
Not Precedential

Judges Sloviter, Fuentes, and Nygaard. Per Curiam. Overturning the BIA in a case originally heard by IJ Walter Durling.

The BIA erred by ruling that a notice of appeal to the BIA was untimely filed. The BIA ignored how the date stamp on the notice of appeal indicates that ICE counsel received it two days before the deadline. The decision does not explain much more of what happened, but the Third Circuit concluded that the notice of appeal should be treated as timely filed.

The Third Circuit made clear that it has jurisdiction to rule on whether a notice of appeal was timely filed, even if the immigrant raising the issue was found removable for an aggravated felony conviction or a controlled substance violation.


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