Bellot-Paul (not precedential): IJs Have The Power To Exlude Late Filings

Bellot-Paul v. Holder
No. 09-2809

February 1, 2010

Not Precedential
http://www.ca3.uscourts.gov/opinarch/092809np.pdf

Judges Scirica, Jordan, and Stapleton. Per Curiam decision. Upholding the BIA and Immigration Judge Irma Lopez-Defillo.

IJs have the power to exclude items if the person filing them misses a reasonable deadline. If you miss a deadline, you should see whether the IJ's interpretation of the rule or regulation was improper. If you do not raise such an argument, then you could lose.

This case is very interesting because the Third Circuit and BIA affirm a well-established power of all judges to exclude items from the record if the person submitted them later than a reasonable deadline that the judge had set. Where someone files items late with no excuse and no complaint about the rules or regulations, then an IJ can exclude the item from the record and the BIA and the Third Circuit might uphold that decision.

Let's look at some issues that are not discussed in this decision -- it would therefore be logical that if the government missed a reasonable deadline to submit documents, offered no excuse, and did not challenge any rule or regulation, an IJ would have the power to exclude that item from the record. If an IJ incorrectly believed that he or she had no power to exclude the late-filed document, it would be logical for the BIA and Third Circuit to overturn the IJ's ruling.

It would be particularly unfair if the BIA or IJ gave a free pass to the government whenever it filed documents late, but penalized asylum-seekers who filed documents late. We will wait and see whether the BIA and Third Circuit make a consistent ruling for late-filed government documents. It would be especially important to apply at least an equally harsh rule against the government because there is an additional argument that due process for asylum-seekers (who are not currently viewed as deserving appointed counsel) would require more leniency for late-filed documents by asylum-seekers. Let's see whether that type of case comes up on the Third Circuit's docket in the coming months.

Who knows, maybe EOIR will train the Immigration Judges not to accept blindly all late-filed government documents. It would be a valuable topic for EOIR trainings.