United States v. 2005-03-10 | 02-73352 | RECINOS DE LEON VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ERNESTO ADOLFO RECINOS DE LEON,
Petitioner, No. 02-73352
v. Agency No.
 A72-527-227ALBERTO GONZALES,* Attorney
General, ORDER
Respondent. 
Filed March 11, 2005
Before: Betty B. Fletcher, Edward Leavy, and
Marsha S. Berzon, Circuit Judges.
ORDER
Respondent, Attorney General Alberto Gonzales, moves
that we accept his brief more than three months late. The brief
was originally due April 7, 2003. Due to the lack of a pre-
pared administrative record, this date was moved to June 11,
2003. Respondent moved again to delay filing of the adminis-
trative record. That motion was granted, making respondent’s
brief due June 27, 2003. Petitioner’s opening brief was timely
served on May 28, 2003.
Respondent timely moved for and received an extension to
July 28, 2003. On July 10, 2003, this court granted respon-
dent’s motion to stay proceedings until October 7, 2003,
pending Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
3185

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2003). On October 7, the Attorney General again moved for
an extension of the date for filing his brief, which he received,
with an admonition that further extensions were disfavored.
The brief was then due November 6, 2003. On November 5,
respondent moved for, and received, a further extension until
December 8, 2003. Respondent now represents that he sought
a further extension of time in January 2004, but such a motion
was never received, and in any event would have been
untimely. Respondent’s thorough brief was served March 18,
2004, along with an unopposed motion that we accept the
tardy filing.
We are not unsympathetic to the workload pressures on the
attorney for the respondent. His declaration in support of his
motion well explains that the Office of Immigration Litigation
is understaffed and its attorneys overworked.1 But the govern-
ment and its attorneys, like any other party, must timely
request extensions if they are unable to file legal papers when
due. Additionally, at some point, scarcity of personnel and
resources is no more a reason for the government than for
other parties for filing legal papers many months late.
Although petitioner does not oppose respondent’s motion, we
may consider the prejudice to this court as well as that to peti-
tioner. See Matter of Withey, 537 F.2d 324, 325-26 (9th Cir.
1976) (suspending attorney whose failure to file a brief
required recalendaring of argument three times).
The motion to file respondent’s brief late is therefore
DENIED. The brief received on March 19, 2004, is stricken
from the record. No sanctions against the respondent’s attor-
ney are appropriate. See 9th Cir. R. 31-2.3.
1The attorney’s declaration included a detailed inventory of his work-
load. We note that, in at least three of the cases he listed, the attorney gen-
eral’s brief was also filed late, after the expiration of numerous extensions.
See Pacquiao v. Ashcroft, No. 03-70166 (brief served 22 days after expira-
tion of last extension); Arsen Abrahamyan v. Ashcroft, No. 03-71980 (14
days); Garcia-Lopez v. Ashcroft, No. 03-71609 (8 days).
3186 RECINOS DE LEON v. GONZALES

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