FedEx, another institution you relied on, that you should not.

Saturday, June 22nd, 2013
By: Jonathan MontagJ.D.

There were once things you could depend on. Your standard of living will be higher than your parents. New TV shows would come out in September. You’ll be taxed. You’ll die. Twinkies. Google will not be evil. FedEx will deliver your package when they say.

It turns out, for the premium one pays to FedEx for next day delivery, there is little satisfaction your package will get there when they say. One study puts it at a 88 percent on time rate. Now, if you are having experimental eye surgery without which you will certainly go blind soon, or if you are invading Normandy, an 88 percent success or survival rate would seem pretty good. If you are leaving your child at day care, an 88 percent chance the child will be there when you come to pick him or her up is not that good. When filing documents for a court where there is a strict deadline, an 88 percent chance of timely delivery is more like leaving your child at daycare than surviving establishing a beachhead to push the Nazis out of France. You figure that if you pay the small fortune FedEx demands, then they will get your filing where they say they will when they say they will. And you will be wrong a lot – 12 percent of the time.Well, you say, at least you get your money back when they fail. Here is an excerpt from the rules for refunds from FedEx:

This Money-Back Guarantee applies to shipments tendered under FedEx International Priority, FedEx International Priority Direct Distribution, FedEx International Priority Freight, FedEx International Economy, FedEx International Economy Freight and FedEx International Priority Broker Select Option only.

In other words, no refund. The post office’s refund policy is much more inclusive than that.

So what is the take away. My advice, absent the magic of Einstein Express or a court’s discretion to accept a late filing with the help of Jiffy Express, attorneys have to re-define their calculations. The post office’s express mail no longer guarantees overnight delivery, at least from California to the East Coast. FedEx overnight is a gamble. Thus, you should consider the absolute last minute to be at least a day earlier. With global warming and severe storms nearly year round, maybe earlier. Lets say you do not have to file something if something else happens. You wait for that something else to happen and want to wait till the last minute. That last minute should be two or three days before the filing deadline, not the day before.

In the immigration context, in the 9th Circuit, there is a little bit of a silver lining to the dark cloud of deadlines and undependable delivery service. In filing appeals to the Board of Immigration Appeals, the 9th Circuit held in Irigoyen-Briones v. Holder that the BIA can accept a late-received appeal if it is the shipper who is at fault. In the case, it was express mail that failed. However, since the BIA recommends in its practice manual (See page 29) using a commercial courier or an overnight service, the same latitude should apply to FedEx.

The court in Irigoyen-Briones marveled that in 2011 the BIA did not accept electronic filings, writing, “Just as we have for many decades assumed the availability of telephones, automobiles, and airplanes, we ought now to assume the availability of email and the internet when we assess the reasonableness of government action.” Two years later, what was weird in 2011 is crazy weird in 2013. The Irigoyen-Briones court itself recognized the irony of the Court of Appeals, a tradition-bound institution of accomplished (through years of experience) jurists and not tech-savvy youngsters, admonishing the BIA for not instituting electronic filing, writing, “Federal courts, no seekers of novelty themselves, generally provide for electronic case filing.”

On top of all the other stresses involved in immigration practice, rigid filing deadlines and undependable delivery services make a hard job harder. Fortunately, Irigoyen-Briones makes things a little brighter. Another reassuring thought – it is certain that one day we will die and then not have to worry about the BIA or FedEx. Posted June 22, 2013.


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