Monday, January 04, 2010

Piao (not precedential): BIA May Reject Late Notice of Appeal -- Third Circuit Can Order Transcript of IJ Decision

Piao v. Holder
December 22, 2009
Not Precedential

Judges Smith, Fisher, and Garth. Per Curiam opinion. Affirming the BIA and IJ Henry S. Dogin's rulings against the asylum-seeker.

Briefly, one of the points is that the BIA has the power to reject a motion to accept a late-appeal of an IJ's decision if it is based on the deficient performance of the lawyer he hired to start the BIA appeal and the person did not comply with the requirements in Matter of Lozada. Although strict compliance with the Lozada requirements is not necessary where their purpose is fully served by other means (such as in Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001)), the asylum-seeker in this case did not fit that exception.

Here, the hired lawyer filed the notice of appeal two days late, having obtained a postal money order just one day before the due date. But there was no explanation of what exactly the lawyer had done or promised to do and why it arrived two days late.

On an interesting side-note, the Third Circuit invoked Federal Rule of Appellate Procedure 16(b), which empowers a court to direct a supplemental record to be prepared and filed if there are omissions. The BIA made a mistake in preparing the record by never transcribing the IJ's oral decision. This is a small but useful example of when a circuit court can accept additional material into the record outside of what the BIA prepared.