BIA Holds That Where Parties Were Properly Served With Electronic Notice Of The Briefing Schedule, A Representative’s Failure To Diligently Monitor The Inbox, Including The Spam Folder, Of The Email Address Of Record Does Not Excuse A Party’s Failure To Comply With Briefing Deadlines.
On January 17, 2025, the Board of Immigration Appeals (BIA or Board) denied Respondent’s timely filed motion to reconsider its prior summary dismissal of their appeal for failure to submit a brief and to meaningfully apprise the BIA of the reasons for the appeal. Respondents claimed that they did not receive notice of the briefing schedule, which had been served electronically on counsel.
The instant matter was eligible for electronic filing before the Immigration Court through the EOIR electronic filing system, ECAS. Respondents filed documents with the court electronically and received electronic notice of documents issued by the court. In August 2022, their applications for relief were denied by the Immigration Judge (IJ) and they were ordered removed. Respondents, through their attorney, then timely filed a Form EOIR-26 Notice of Appeal in paper form with the Board, which issued a notice acknowledging receipt of the appeal by serving the parties electronically and mailing a courtesy copy. On July 29, 2023, the BIA electronically served its briefing schedule, granting Respondents to August 21, 2023 to file their brief. No written brief or statement was received.
The summary dismissal was based on the Notice of Appeal failing to “contain statements that meaningfully apprised the Board of the specific reasons underlying the challenge” to the IJ’s order and Respondents’ failure to file an appellate brief or explain why they did not do so. Respondents contended in their motion that they had not received notice that “their appeal had become an electronic record of proceedings and were expecting that the briefing schedule would be issued in paper form.”
Initially in its decision, the Board discussed ECAS, explaining that electronic filing became mandatory for all lawyers, with limited exceptions, in February 2022. To use the system, attorneys must register with e-Registry and maintain a valid email address. ECAS users must also agree to electronic service of EOIR-generated documents via email. Service is complete when “electronic notification is delivered to the last email address on file provided by the user.”
The BIA next explained that a motion to reconsider argues that a previous decision was in error and must articulate any such errors of fact or law, supported by pertinent authority. Here, Respondents contended that the Board’s prior decision to dismiss the appeal rested on the factually incorrect premise that they had been given an opportunity to submit a brief or statement in support of the appeal. Respondents stated that they expected the briefing schedule to be served in paper form because the Notice of Appeal was filed in paper form and the BIA’s appeal receipt notice was served in paper form. Although Respondent’s admitted that counsel was served electronically with the briefing schedule, they contended that notice of the briefing schedule was delivered to counsel’s spam folder and was not retrieved until after dismissal. Respondents asserted reconsideration was justified as they did not receive constructive or actual notice that their appeal “had become an electronic record of proceedings, and they were operating under the expectation that all future correspondence from the Board would be in paper form.”
Yet the BIA opinion found that Respondents had failed to establish any errors of law or fact in the prior decision. Summary dismissal was appropriate; the Board set a briefing schedule which was available in the electronic records of proceedings and, per the regulations, the parties were sent electronic notification of this document. They were thus properly served with the schedule and provided with an opportunity to file a brief. They did not do so within the time provided so the BIA did not commit error in summarily dismissing the appeal.
Nor was the Board persuaded by the argument that Respondents were not provided actual or constructive notice that the case had transformed to an electronic format on appeal. The decision noted that in December 2021, while they were in removal proceedings before the IJ, EOIR published a final rule that, effective February 2022, electronic filing would be mandatory for cases eligible for electronic filing. The instant matter was so eligible because it had an electronic record of proceedings. Further, once the case was eligible for electronic filing before the IJ, Respondents – represented by the same law firm – “both filed documents electronically and received electronic service of other EOIR-generated documents.” Respondents therefore had sufficient notice that their appeal was subject to EOIR’s electronic service regulations.
Nor had the BIA’s acceptance of a paper-filed Notice of Appeal allowed for the creation of an expectation that the briefing schedule would also be served in paper form. The regulations provide that the Board retains discretion to accept paper filings but its acceptance of a paper-filed Notice of Appeal or its provision of a courtesy paper copy of a receipt notice did not reasonably create “a future expectation that electronic notice will not be utilized.” Nor did such acts relieve counsel of “the obligation to actively monitor the inbox, including the spam folder, of the email address on record with EOIR.”
As Respondents’ counsel did not contest that she had received the email notification or indicate what efforts she or her staff had made to monitor incoming email, given her awareness of the pending appeal, the BIA held that where parties are properly served with electronic notice of the briefing schedule, a representative’s failure to diligently monitor the inbox, including the spam folder, of the email address of record does not excuse a party’s failure to comply with briefing deadlines. The opinion concluded: “In this electronic world, an attorney’s obligation to monitor, check, and open emails is not different than their obligation to go to the mailbox, retrieve their paper mail, open it, and act upon it.” The motion to reconsider was denied. Matter of Arciniegas-Patino, 28 I&N Dec. 883 (BIA 2025).
