Yulia Firmansjah v. JOHN ASHCROFT , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3111
Y ULIA F IRMANSJAH ,
Petitioner,
v.
J OHN A SHCROFT , Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
D ECIDED O CTOBER 17, 2003
____________
Before E ASTERBROOK , M ANION , and K ANNE , Circuit
Judges.
P ER C URIAM . On April 9, 2003, the Board of Immigra-
tion Appeals affirmed an order for the removal from the
United States of Yulia Firmansjah. She had 30 days from
the order’s issuance to seek judicial review, see 8 U.S.C.
§1252(b)(1), and that time passed without action. Contend-
ing that he had not received the decision until June 5, 2003,
Firmansjah’s lawyer asked the Board to enter a new order.
The Board accommodated that request and on August 6,
2003, “reissued” its decision. The new order states that the
Board’s decision “shall be treated as entered as of today’s
date.” Firmansjah then filed a petition for review, which is
timely only if the clock started anew on August 6. Because

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2 No. 03-3111
the Board did not explain the source of its authority to
attach a new date to an old decision, a step that substan-
tially increased Firmansjah’s time to obtain judicial review,
we directed the parties to file memoranda addressing the
question whether we have jurisdiction.
Stone v. INS, 514 U.S. 386, 401-05 (1995), holds that the
time to file a petition for review of the Board’s decisions is
jurisdictional, just like the time to file a notice of appeal
from the final decision of a district court. Until 1991, when
Fed. R. App. P. 4(a)(6) was promulgated, it was understood
that district courts lack the authority to reenter decisions
in order to extend the time for appeal, even when the justi-
fication was a litigant’s failure to receive notice. See, e.g.,
Spika v. Village of Lombard, 763 F.2d 282 (7th Cir. 1985).
Rule 4(a)(6) enables district courts to assist litigants who
did not receive notice, but only if the would-be appellant
seeks relief within 180 days of the judgment’s entry, or
within 7 days of actual knowledge, whichever comes first.
No rule similar to Rule 4(a)(6) applies to immigration cases,
or to any other administrative agency. This led us to inquire
of the parties whether agencies should be treated like
district courts in the years before Rule 4(a)(6). It is a subject
that no court of appeals has addressed to date.
We hold that the answer is “no.” Although Fed. R. App. P.
26(b)(1) prohibits district courts from extending the time for
appeal (other than under the terms of Rule 4), no similar
ban applies to administrative agencies—either in the Rules
of Appellate Procedure or in §1252(b)(1). For district courts,
Rule 4(a)(6) is an essential source of authority. Lack of
notice does not fit any of the categories in Fed. R. Civ. P.
60(b), and Fed. R. Civ. P. 77(d) tells district courts to leave
their judgments alone unless some other rule allows revi-
sion. Prevailing litigants acquire rights that courts should
not monkey with. Yet no similar prohibition, in rule or stat-
ute, applies to administrative agencies, perhaps because the
agency is both adjudicator and interested party, which may

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No. 03-3111 3
surrender entitlements on its own behalf. The Board of
Immigration Appeals, in particular, has authority to reopen
and revise its decisions on account of new developments.
See 8 U.S.C. §1229a(c)(6). In asylum cases such a motion
may be filed at any time, and Firmansjah is seeking
asylum. Because nothing prevents the Board from entering
a new removal order, which is subject to a fresh petition for
review, we have jurisdiction and the case will proceed to
briefing. Note that we do not say that the Board must re-
enter its decision if notice miscarries; but when the Board
extends to the alien this measure of grace, there is no legal
obstacle to judicial review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-17-03

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