Kyu O. Oh v. Alberto Gonzales, Attorney General

Petitioner Kyu Oh (“Oh”) appeals the Board of Immigration Appeals’ (“BIA”) denial of her motion to reconsider its rejection of her notice of appeal of an Immigration Judge’s (“IJ”) decision as being untimely filed. Oh sought to excuse the late filing as having been caused by an overnight delivery service’s failure to deliver the notice until well past the BIA’s 30-day deadline. Noting that in using an overnight delivery service she was following the very procedure the BIA’s own Practice Manual recommended, Oh contends that the BIA abused its discretion and denied her due process in refusing to consider her reasonable excuse. Because the BIA denied Oh’s motion to reconsider on the erroneous assumption that it had no authority to extend the time for appeal, we grant Oh’s petition and remand to the BIA to determine whether her circumstances justify excusing her late filing.

We have jurisdiction pursuant to 8 U.S.C. § 1252 (a). We review the BIA’s denial of a motion to reconsider for abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). “ ‘An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.’ ”…