# ARCINIEGAS-PATINO

> Board of Immigration Appeals · January 17, 2025 · 28 I. & N. Dec. 883

URL: https://www.frixlaw.com/law-library/cases/10783212

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** January 17, 2025
- **Citations:** 28 I. & N. Dec. 883
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10783212

## How later opinions describe it (automated extraction)

- concluding that a respondent who received an electronic notification of a briefing schedule available in the electronic record of proceeding was properly served with the briefing schedule

## Opinion text

Cite as 28 I&N Dec. 883 (BIA 2025) Interim Decision #4084

Matter of John ARCINIEGAS-PATINO, et al., Respondents
Decided January 17, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

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.
FOR THE RESPONDENTS: Carolina Gomez, Esquire, Los Angeles, California
BEFORE: Board Panel: BAIRD, OWEN, and BORKOWSKI, Appellate Immigration
Judges.
BORKOWSKI, Appellate Immigration Judge:

This matter was last before the Board on November 20, 2023, when we
summarily dismissed the respondents’ appeal for failure to submit a brief and
to meaningfully apprise us of the reasons for the appeal. The respondents
filed a timely motion to reconsider, claiming that they did not receive notice
of the briefing schedule, which was served electronically on the respondents’
counsel. The respondents’ motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY
The respondents are natives and citizens of Colombia. Their case was
eligible for electronic filing before the Immigration Court through the
Executive Office for Immigration Review’s (“EOIR”) electronic filing
system. 1 The respondents filed documents electronically with the
Immigration Court and received electronic notice of documents issued by the
Immigration Court. On August 29, 2022, the Immigration Judge denied their
applications for relief and ordered them removed.
The respondents, through the same law firm that represented them before
the Immigration Court, filed a Notice of Appeal (Form EOIR-26) in paper
form with the Board of Immigration Appeals on September 21, 2022. The
Board issued a notice acknowledging receipt of the respondents’ appeal,
serving the parties electronically and mailing a courtesy copy of the notice.

1
The term “case eligible for electronic filing” refers to “any case before an Immigration
Judge or the Board that has an electronic record of proceedings.” 8 C.F.R. § 1001.1(cc)
(2025).
Page
883
Cite as 28 I&N Dec. 883 (BIA 2025) Interim Decision #4084

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.
We summarily dismissed the respondents’ appeal pursuant to paragraphs
(A) and (E) of 8 C.F.R. § 1003.1(d)(2)(i) (2025) because the Notice of
Appeal did not contain statements that meaningfully apprised the Board of
the specific reasons underlying the challenge to the Immigration Judge’s
decision, and because the respondents did not file an appellate brief or
explain their failure to do so. The respondents 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.

II. EOIR’S COURTS AND APPEALS SYSTEM (“ECAS”)
The final rule implementing electronic filing and records applications for
all cases before the Immigration Courts and the Board went into effect on
February 11, 2022. See Executive Office for Immigration Review Electronic
Case Access and Filing, 86 Fed. Reg. 70708, 70708 (Dec. 13, 2021) (to be
codified at 8 C.F.R. pts. 1001, 1003, 1103, 1208, 1240, 1245, 1246, 1292).
On that date, electronic filing through ECAS became mandatory for all
attorneys and accredited representatives, with limited exceptions not relevant
to the instant case. See 8 C.F.R. §§ 1003.2(g)(4), 1003.3(g)(1), 1003.31(a)
(2025). The Board and Immigration Judges, however, retained the discretion
to accept paper filings. 8 C.F.R. §§ 1003.2(g)(5), 1003.3(g)(2), 1003.31(b).
To file electronically through ECAS, an attorney or accredited
representative must register with eRegistry and must maintain a valid email
address. See 8 C.F.R. § 1292.1(f) (2025); see also 8 C.F.R.
§§ 1003.2(g)(9)(ii), 1003.3(g)(6)(ii), 1003.32(b) (2025) (discussing the
requirement that ECAS participants update their eRegistry account if their
email address changes). All ECAS users must also acknowledge and agree
to the “terms and conditions” to participate. See Terms and Conditions for
Using ECAS Case Portal, Exec. Off. for Immigr. Rev. (July 29, 2022),
https://www.justice.gov/eoir/page/file/1370246/dl?inline. Specifically,
ECAS users must agree to “service of process of EOIR-generated documents
electronically through the email address provided in ECAS” and eRegistry.
Id. “EOIR will consider service completed when the electronic notification
is delivered to the last email address on file provided by the user.” 8 C.F.R.
§§ 1003.2(g)(9)(ii), 1003.3(g)(6)(ii), 1003.32(b).

page
884
Cite as 28 I&N Dec. 883 (BIA 2025) Interim Decision #4084

III. DISCUSSION
“A motion to reconsider asserts that at the time of the Board’s previous
decision an error was made.” Matter of Cerna, 20 I&N Dec. 399, 402 (BIA
1991). The motion must “specify[] the errors of fact or law in a prior Board
decision, and it must be supported by pertinent authority.” Matter of O-S-G-,
24 I&N Dec. 56, 56 (BIA 2006); accord 8 C.F.R. § 1003.2(b)(1).
The respondents argue that the Board’s prior decision rests on the
factually incorrect premise that they were granted the opportunity to submit
a brief or statement in support of the appeal. Specifically, the respondents
argue that they expected the briefing schedule to be sent in paper form as the
Notice of Appeal was filed in paper form and the appeal receipt notice from
the Board was sent in paper form. While the respondents acknowledge that
their counsel was served electronically with the briefing schedule, they assert
that notice of the briefing schedule was delivered to their counsel’s spam
folder and was not seen until after the Board dismissed the appeal. They
argue reconsideration is warranted because 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.
The respondents have not established any error of fact or law in our prior
decision. See Matter of O-S-G-, 24 I&N Dec. at 56–58; 8 C.F.R. § 1003.2(b).
Summary dismissal was appropriate under the circumstances presented in
this case. On July 29, 2023, the Board set a briefing schedule for the
respondents’ appeal. See 8 C.F.R. § 1003.3(c)(1). This briefing schedule
was available in the electronic record of proceedings, and pursuant to the
regulations, the parties were sent an electronic notification of this document.
See 8 C.F.R. § 1003.3(g)(6)(i)–(ii). The respondents were therefore properly
served with the briefing schedule and provided an opportunity to file a brief.
See 8 C.F.R. § 1003.3(g)(6)(ii). Because the respondents did not file a brief
within the time provided, the Board did not err in summarily dismissing the
appeal. See 8 C.F.R. § 1003.1(d)(2)(i)(E).
We are not persuaded by the respondents’ claim that they were not
provided actual or constructive notice that their case was electronic before
the Board. On December 13, 2021, while the respondents were in removal
proceedings before the Immigration Judge, EOIR announced through the
issuance of a final rule that effective February 11, 2022, electronic filing
would be mandatory before the Immigration Judge and the Board for cases
eligible for electronic filing. See 86 Fed. Reg. at 70708, 70720–22. The
instant case is a case eligible for electronic filing because it has an electronic
record of proceedings. See 8 C.F.R. § 1001.1(cc) (2025). More importantly,
the administrative record reflects that the case was eligible for electronic
filing before the Immigration Judge and the respondents, represented by the
page
885
Cite as 28 I&N Dec. 883 (BIA 2025) Interim Decision #4084

same law firm below, both filed documents electronically and received
electronic service of other EOIR-generated documents. Under these
circumstances, the respondents had sufficient notice that their appeal was
subject to the regulations regarding electronic service.
We are further unpersuaded by the respondents’ argument that the
Board’s acceptance of a paper-filed Notice of Appeal created an expectation
that the briefing schedule would also be in paper. The regulations provide
that “[t]he Board retains discretion to accept paper filings in all cases.”
8 C.F.R. §§ 1003.2(g)(5), 1003.3(g)(2). The Board’s acceptance of a
paper-filed Notice of Appeal was a matter of administrative convenience and
accommodation to the parties. See Matter of Arambula-Bravo, 28 I&N
Dec. 388, 395 (BIA 2021) (recognizing that “[a]dministrability is important”
(quoting City of Portland v. United States, 969 F.3d 1020, 1038 (9th Cir.
2020))). Neither the acceptance of the paper Notice of Appeal nor providing
a courtesy paper copy of the receipt notice, however, creates a future
expectation that electronic notice will not be utilized. 2 See 8 C.F.R.
§§ 1003.2(g)(5), 1003.3(g)(2). It also does not relieve counsel of the
obligation to actively monitor the inbox, including the spam folder, of the
email address on record with EOIR. 3 See 86 Fed. Reg. at 70710 (“In general,
representatives should vigilantly monitor their email inboxes, including any
spam folders, for service notifications from EOIR, just as a person would for
any important email communication.”).
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.

2
The respondents’ counsel’s assertion that Board staff requested counsel submit copies
of the Notice of Entry of Appearance as Attorney (Form EOIR-27) to the staff member
through email likewise did not create an expectation that, contrary to the regulations, the
appeal would proceed in paper.
3
The respondents’ counsel can also access briefing schedule information at any time via
the ECAS portal or EOIR’s Automated Case Information Line.
page
886
Cite as 28 I&N Dec. 883 (BIA 2025) Interim Decision #4084

IV. CONCLUSION
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. We will therefore deny
their motion to reconsider our prior decision summarily dismissing the
appeal for failure to file a brief.
ORDER: The respondents’ motion is denied.

page
887

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10783212. Public record. Not legal advice.