A Respondent was being represented by an attorney in removal proceedings and was ordered removed. The attorneys for the Respondent filed a notice of appeal in a timely manner. On July 29, 2023, the Board issued a briefing schedule granting the Respondents until August 21, 2023, to file a brief. The briefing schedule was served on the parties electronically. No written brief or statement was received by the filing deadline.
The Respondent’s counsel filed a timely motion to reconsider, arguing that they did not receive notice that their appeal had
become an electronic record of proceedings and were expecting that the briefing schedule would be issued in paper form. Respondent’s counsel concedes the briefing schedule was sent to them, just that it was filtered into a spam folder.
The administrative record reflects that the Respondents were properly served electronically with the briefing schedule, and thus placed on notice of the deadline to file their appeal brief with the Board. The Board therefore denied their motion to reconsider the prior decision summarily dismissing the appeal for failure to file a brief.
It is the attorney’s obligation to take whatever steps are necessary to ensure that they receive their email the same way they would have to take the necessary steps to ensure they received their postal mail. Attorneys need to understand that in the electronic age, email is no less official than regular mail sent through the USPS. It is the attorney’s burden to setup spam filters properly and to take the necessary steps to ensure there are no interruptions to their email service. They should also be checking their spam folder for important emails like a briefing deadline from the Board of Immigration Appeals.
The respondents’ counsel does not dispute that she received the email notification regarding the briefing schedule. Additionally, counsel does not
indicate what efforts she or members of her staff made to monitor incoming
email, given her awareness of the pending appeal in this case. 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. That the respondents’ counsel did not see
the briefing schedule at the time it was electronically delivered, standing
alone, does not provide a sufficient basis for reconsideration of our prior
decision. In this electronic world, an attorney’s obligation to monitor, check,
and open emails is no different than their obligation to go to the mailbox,
retrieve their paper mail, open it, and act upon it.The
Board wrote:Matter of Arciniegas-Patino, 28 I&N Dec. 883, at 886 (BIA 2025) .
The full decision is available below as a PDF.
This decision is important because it puts all attorneys on notice that they better be taking their email seriously and implementing procedures to ensure they are not missing any important electronic notices or emails.
It’s yet to be seen if the Board will be as strict about such matters with unrepresented respondents. Initially it seems like they should enjoy a bit more breathing room but if email is going to be treated the same as regular mail through the postal service then unrepresented respondents should be held to the same standard. This may be sort of a moot point though if the BIA doesn’t send unrepresented respondents briefing schedules by email, which I could not confirm. Unrepresented respondents can file a notice of appeal through ECAS so I would expect that they receive briefing schedules electronically as well.
Board’s Decision
Matter of ARCINIEGAS-PATINO, 28 I&N Dec. 883 (BIA 2025) (PDF)
MAGA