Nicholas Smith (argued) and Hain-Whei Hsueh, Certified Law
Students; Stephen A. Tollafield, Supervising Counsel; Gary A.
Watt, Supervising Counsel; Hastings Appellate Project, San
Francisco, California; for Petitioner.
A. Palau (argued), Trial Attorney; Terri J. Scadron,
Assistant Director; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
Before: Jerome Farris, Diarmuid F. O'Scannlain, and
Morgan Christen, Circuit Judges.
panel granted Arturo Alexander Barrientos's motion asking
the court to exercise its discretion to consider new evidence
not filed with his petition for review which showed that the
petition was timely filed because it complied with the
conditions of the "prison mailbox" rule, Fed. R.
App. P. 25(a)(2)(C).
panel held that under Rule 25(a)(2)(C) this court has
discretion to refuse to consider, or to give less weight to,
an inmate's declaration or notarized statement submitted
after the inmate's legal filing. The panel granted
Barrientos's motion to submit the new evidence, exercised
its discretion to consider his affidavit and the prison's
outgoing mail log, and concluded that his petition for review
was timely filed.
panel held that it thus had jurisdiction over the petition
for review under 8 U.S.C. § 1252, and resolved the
merits in a memorandum disposition filed concurrently with
determine whether we have jurisdiction over a petition for
review of a decision of the Board of Immigration Appeals that
our clerk's office received five days after the deadline
Alexander Barrientos, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals'
decision affirming the immigration judge's denial of
withholding of removal and protection under the Convention
U.S.C. § 1252(b)(1), the "petition for review must
be filed not later than 30 days after the date of the final
order of removal." This deadline is "mandatory and
jurisdictional." Abdisalan v. Holder, 774 F.3d
517, 521 (9th Cir. 2014) (en banc) (quoting Stone v.
INS, 514 U.S. 386, 405 (1995)). The burden is on
Barrientos to establish jurisdiction, as he is "the