USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1224
LUCAS P. BAEZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Selya, Cyr and Stahl, Circuit Judges.
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Paul F. Murphy, with whom MacDonald, Murphy & May was on
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brief, for petitioner.
Joan E. Smiley, Attorney, Office of Immigration Litigation,
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Civil Division, Department of Justice, with whom Frank W. Hunger,
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Assistant Attorney General, Civil Division, and Lauri Steven
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Filppu, Attorney, Office of Immigration Litigation, were on
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brief, for respondent.
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December 6, 1994
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SELYA, Circuit Judge. Petitioner Lucas P. Baez, also
SELYA, Circuit Judge.
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known as Lucas Porfirio Baez-Soto, also known as Domingo Guzman,
an alien who was deported following a state narcotics conviction,
attempts to challenge the refusal of the Board of Immigration
Appeals (BIA or Board) to reopen its decision to deny him a
waiver of deportability. Petitioner's case requires this court
to make its initial interpretation of the jurisdictional bar
contained in the departure clause of section 106(c) of the
Immigration and Nationality Act (the Act), 8 U.S.C. 1105a(c)
(1988).1 The courts of appeals have divided on whether this
statute signifies what it appears to say. We conclude that the
statute's plain meaning must prevail, and, therefore, an alien's
departure from the United States, whether voluntary or
involuntary, deprives the federal courts of jurisdiction to
entertain challenges to an antecedent order of deportation.
Because the instant petition solicits judicial inquiry into the
correctness of the deportation order that brought about
petitioner's departure, we dismiss it for want of appellate
jurisdiction.
I. BACKGROUND
I. BACKGROUND
Petitioner is a native and citizen of the Dominican
Republic. He lawfully entered the United States as a child in
1972. In 1986, he was convicted in a Massachusetts state court
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1The statute provides in material part that "[a]n order of
deportation . . . shall not be reviewed by any court if the alien
. . . has departed from the United States after the issuance of
the order." 8 U.S.C. 1105a(c) (1988).
2
of distributing cocaine, and received a five-to-ten-year
incarcerative sentence. An alien's commission of a serious drug
offense invites deportation. See 8 U.S.C. 1251(a)(11) (1988);
___
see also 8 U.S.C.A. 1251(a)(2)(B)(i) (West Supp. 1994) (current
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version). Adhering to the statutory scheme, the Immigration and
Naturalization Service (INS) issued an order asking petitioner to
show cause why he should not be deported.
Following petitioner's release from prison in 1988, an
immigration judge (IJ) held a hearing on the show-cause order.
Under section 212(c) of the Act, 8 U.S.C. 1182(c), a lawfully
admitted resident alien domiciled in this country for no fewer
than seven years who has been convicted of a drug offense may
secure relief from deportation on the basis of that conviction if
the Attorney General determines that a waiver appears to be in
the national interest because social and humane considerations
outweigh the adverse factors evidencing the alien's
undesirability.2 See Gouveia v. INS, 980 F.2d 814, 816-19 (1st
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Cir. 1992) (elucidating balancing test); Matter of Marin, 16 I. &
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N. Dec. 581 (BIA 1978) (similar). During the hearing, petitioner
conceded deportability, invoked section 212(c), and requested a
discretionary waiver. On June 16, 1989, the IJ issued a decision
favorable to petitioner. The judge noted adverse factors,
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2The Attorney General has duly delegated this power to her
subordinates within the INS apparatus, with the proviso that
applications "for the exercise of discretion under section 212(c)
of the Act shall be submitted . . . to: (1) the [appropriate
regional] director . . .; or (2) the Office of the Immigration
Judge . . . ." 8 C.F.R. 212.3(a) (1994).
3
including petitioner's cocaine conviction and neglect of his
children, but found those factors overbalanced by petitioner's
extended residence, family ties, and the like.
The INS appealed the IJ's decision to the BIA. Under
the briefing order applicable to its appeal, the INS had until
August 23, 1990, to file its brief, but the matter apparently
fell between the cracks. On August 28, petitioner filed a motion
to dismiss the appeal with the IJ. The INS responded by serving
the wayward brief the next day and, shortly thereafter,
submitting its formal opposition to the dismissal motion. In
early September, petitioner, apparently realizing belatedly that
his motion should have been filed with the BIA rather than the
IJ, refiled it with the BIA. After an unexplained three-year
lull, the BIA issued an order on September 30, 1993, in which it
reversed the IJ's decision, denied petitioner's request for a
waiver, and ordered him deported.
On November 22, 1993, at 11:15 p.m., Paul F. Murphy,
counsel of record for the petitioner, received a telephone call
from petitioner's sister informing him that the INS had taken
petitioner into custody that day and intended to deport him
posthaste. Attorney Murphy claims that, as of that moment, he
did not know of the Board's September 30 decision. The next day,
the lawyer moved to stay deportation and reopen the proceedings.
He filed these motions at the IJ's chambers in Boston. Early
that afternoon, the motions were forwarded to the BIA's office in
Falls Church, Virginia. At 2:00 p.m., Attorney Murphy telephoned
4
the BIA and supplied an oral statement in order to facilitate
immediate review of the motion to stay deportation. At 4:30
p.m., the BIA notified Attorney Murphy that it had denied the
stay because the single member who considered the matter found
that the motion to reopen had little likelihood of success.3
The INS deported petitioner on November 24, 1993. On
December 13, in pursuance of the applicable regulation, 8 C.F.R.
3.2 (1994), the BIA effectively denied petitioner's motion to
reopen, deeming it to be withdrawn by virtue of his deportation.
On March 10, 1994, petitioner sought judicial review of the
"denial" of his motion to reopen. See 8 U.S.C.A. 1105a (West
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1970 & Supp. 1994) (prescribing the procedure for review of final
deportation orders in the courts of appeals); see also Giova v.
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Rosenberg, 379 U.S. 18, 18 (1964) (per curiam) (holding that the
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BIA's denial of a motion to reopen a deportation proceeding is a
judicially reviewable final order). The petition appears to have
been filed within the time span fixed by statute.4
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3Petitioner did not seek judicial review of the BIA's order
within the time then allotted by statute, see 8 U.S.C.A.
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1105a(a)(1) (West Supp. 1994) (providing that petitions for
judicial review of such orders must be filed within 90 days); see
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also infra note 4, despite the fact that the time for doing so
____ _____
had not yet expired. By the same token, petitioner did not seek
a stay from this court.
4In 1990, Congress amended 8 U.S.C. 1105a(a)(1) to reduce
to 30 days the period within which an alien convicted of certain
aggravated felonies on or after November 18, 1988 might petition
for judicial review. See Immigration Act of 1990, Pub. L. No.
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101-649 502(a), 104 Stat. 4978 (1990). Because petitioner's
conviction occurred in 1986, he had 90 days, rather than 30,
within which to file his petition in this court, see id. at
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545(b)(1).
INS nevertheless argues that, because the petition to
5
II. THE PROFFERS ON APPEAL
II. THE PROFFERS ON APPEAL
An INS regulation provides in pertinent part that
"[t]he decision of the [BIA] shall be in writing . . . and a copy
shall be served upon the alien or party affected as provided in
part 292 of this chapter." 8 C.F.R. 3.1(f) (1994). The cross-
referenced regulation stipulates that service may be effected by
mail upon "the attorney or representative of record, or the
person himself if unrepresented." 8 C.F.R. 292.5(a) (1994).
At all times material hereto, Murphy was petitioner's attorney of
record. He claims not to have received timeous notice of the
BIA's September 30 decision. Desiring to shed light on this
factual issue, we authorized the parties to submit fact-specific
proffers anent the notification issue. See Bemis v. United
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States, 30 F.3d 220, 222 & n.2 (1st Cir. 1994) (authorizing
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factual proffers on appeal).
Petitioner submitted an affidavit signed by Attorney
Murphy's secretary, Montsie Moreno, stating that she sorted the
lawyer's mail during October of 1993, but did not receive a copy
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review was not filed within 90 days of the date of the
deportation order (September 30, 1993), this court lacks
jurisdiction to review that decision. INS's view is problematic.
Compare Fleary v. INS, 950 F.2d 711, 713 (11th Cir. 1992)
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(reaching opposite conclusion after considering 1990 amendments
to the Act) and Fuentes v. INS, 746 F.2d 94, 97 (1st Cir. 1984)
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(similar; considering earlier version of the Act) with Stone v.
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INS, 13 F.3d 934, 936-39 (6th Cir. 1994) (contra; considering
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1990 amendments) and Nocon v. INS, 789 F.2d 1028, 1032-33 (3d
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Cir. 1986) (same; considering earlier version of the Act). We
need not probe this point, for even if INS is correct in its view
a matter on which we do not pass it has not argued that the
petition for review is untimely as to the Board's jettisoning of
the motion to reopen.
6
of the BIA's decision in that time frame. For its part, the INS
submitted two sworn declarations. The declaration of April M.
Verner, supervisory case management analyst of the BIA's Docket
Unit, certified, based on her knowledge of BIA procedure and the
record of the case, that a copy of the BIA's September 30, 1993
decision had been mailed contemporaneously to Attorney Murphy at
6 Faneuil Hall Marketplace, Boston, MA 02109 (which was counsel's
address of record as indicated on BIA Form EOIR-27, dated
September 7, 1990).
The second declaration dovetails with Verner's
statement but goes on to strike a somewhat different chord. In
it, Judith E. Arnott, the Boston-based INS officer who made the
arrangements for petitioner's deportation, observed that a copy
of Form I-294 (the official notice of the country to which a
particular individual's deportation is directed) had been mailed
to Attorney Murphy at his address of record shortly after
petitioner's deportation, and that the mailing was returned to
the INS on December 7, 1993, marked "forwarding time expired."
Ms. Arnott added that neither petitioner nor his representative,
Attorney Murphy, ever requested the district director to stay
petitioner's deportation.
The parties filed no further proffers. At oral
argument, however, Attorney Murphy advised that he continued to
maintain an office at 6 Faneuil Hall Marketplace and implied that
he had never arranged to have mail forwarded from that address.
Nevertheless, he conceded that, in the fall of 1993, his
7
principal offices were located elsewhere, and the Faneuil Hall
office was checked for mail at infrequent intervals (perhaps
twice a week).
III. ISSUES PRESENTED
III. ISSUES PRESENTED
Petitioner contends that several errors infected the
process leading to his deportation. First, he asseverates that
the INS's failure punctually to file its brief deprived the BIA
of jurisdiction to hear the initial appeal, and, consequently,
that the IJ's decision upholding petitioner's entitlement to a
section 212(c) waiver became final agency action (or, put another
way, that the BIA's reversal of the IJ's ruling had no force or
effect because the BIA's jurisdiction had been pretermitted).
Second, petitioner asseverates that, in violation of applicable
statutory and administrative rules, the BIA did not properly
notify his counsel of its September 30 decision and, therefore,
deported petitioner without requisite notice. See, e.g., 8
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C.F.R. 243.3(b) (1994) (providing that a deportation order
"shall be executed no sooner than 72 hours after service of the
decision").
We are powerless to reach the merits of these
asseverations, however, for petitioner's deportation deprives
this court of subject matter jurisdiction over the request for
judicial review.
IV. ANALYSIS
IV. ANALYSIS
Section 106(c) of the Act, 8 U.S.C. 1105a(c), quoted
supra note 1, is absolute on its face. It stipulates that a
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8
deportation order "shall not be reviewed by any court" once the
alien has departed. This flat rule is couched in obligatory
terms that reflect Congress's determination to eliminate
repetitive and unjustified appeals. See H.R. Rep. No. 1086, 87th
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Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.A.N. 2950,
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2971-72.
Despite the unambiguous language of the statute, some
courts, presumably troubled by its rigidity, have read exceptions
into it, thereby softening its impact and authorizing post-
deportation judicial review under certain circumstances. The
Ninth Circuit pioneered this view in Mendez v. INS, 563 F.2d 956
______ ___
(9th Cir. 1977). There, an alien who had been deported without
notice to his counsel, on the basis of a sentence that had been
vacated prior to deportation, pressed forward with a petition for
judicial review of the deportation order. The court entertained
the petition and ordered the alien readmitted to the United
States. See id. at 959. In reaching this result, the court read
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section 1105a(c) as a conditional, rather than an absolute, bar,
opining that "`departure' in the context of 8 U.S.C. 1105a
cannot mean `departure in contravention of procedural due
process.'" Id. at 958. On this basis, the court held that
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"`departure' means `legally executed' departure when effected by
the government." Id.
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Since the first seed was sown, the Mendez exception has
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mushroomed in the Ninth Circuit. Today, that court allows
judicial review of deported aliens' claims in an array of
9
situations. See, e.g., Zepeda-Melendez v. INS, 741 F.2d 285,
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287-88 (9th Cir. 1984) (entertaining petition on claim that
deportation occurred without notice to counsel); Thorsteinsson v.
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INS, 724 F.2d 1365, 1367-68 (9th Cir.) (indicating that court
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would entertain petition on claim that deportation occurred
through ineffective assistance of counsel), cert. denied, 467
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U.S. 1205 (1984); Estrada-Rosales v. INS, 645 F.2d 819, 820-21
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(9th Cir. 1981) (entertaining petition on claim that deportation
was based on invalid conviction).
Mendez has not fared as well outside its birthplace.
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To the limited extent that the decision has evoked admiration,
its admirers have doused it with faint praise. A decade ago, the
Sixth Circuit referred to the Mendez exception in approbatory
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terms, but did not squarely adopt it, see Juarez v. INS, 732 F.2d
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58, 59-60 (6th Cir. 1984) (citing Mendez in connection with a
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discussion of an alien's administrative remedies), and to our
knowledge has not revisited the question. More recently, a
diluted version of the Mendez exception has been afforded safe
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passage in two other courts of appeals. See Camacho-Bordes v.
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INS, 33 F.3d 26, 27-28 (8th Cir. 1994) (hypothesizing that
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judicial review should be permitted, notwithstanding execution of
a deportation order, if a "colorable" claim of a due process
violation emerges); Marrero v. INS, 990 F.2d 772, 777 (3d Cir.
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1993) (same).
At least three other circuits have given Mendez a
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distinctly unfavorable reception. In Umanzor v. Lambert, 782
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10
F.2d 1299 (5th Cir. 1986), the Fifth Circuit professed "serious
reservations" about the Mendez court's holding, and noted that it
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had become a "sinkhole that has swallowed the rule of
1105a(c)." Id. at 1303 & n.5. The Fifth Circuit expressly
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rejected Mendez in a subsequent case, explaining that section
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1105a(c) was written in plain language that brooked no exceptions
to the jurisdictional bar. See Quezada v. INS, 898 F.2d 474,
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476-77 (5th Cir. 1990). The Tenth Circuit also adopted a strict
interpretation of section 1105a(c), ruling that the statute's
"unequivocal" language does not permit a Mendez-type exception to
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flourish. Saadi v. INS, 912 F.2d 428, 428 (10th Cir. 1990) (per
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curiam). The Second Circuit recently joined the lengthening
anti-Mendez parade. See Roldan v. Racette, 984 F.2d 85, 90 (2d
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Cir. 1993) (observing that "[t]he pertinent language of
1105a(c) constitutes a clear jurisdictional bar, and admits of no
exceptions"). Still another court of appeals has signalled that
it is skeptical of Mendez. See Joehar v. INS, 957 F.2d 887, 890
______ ___ ______ ___
(D.C. Cir. 1992) (declining to consider the Mendez exception in
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respect to an alien who had departed voluntarily).5
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5In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the
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Supreme Court held that due process requires that collateral
review of a deportation order be available in a subsequent
criminal prosecution for unlawful reentry when substantial
defects in the underlying administrative proceedings foreclosed
direct judicial review. Id. at 838. In dissent, Justice Scalia
___
suggested that the majority's opinion necessarily betokened a
rejection of the Mendez holding. See id. at 849 (Scalia, J.,
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dissenting). But Justice Marshall, writing for the majority,
took pains to "express no view" on Mendez. Id. at 837 n.13.
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Thus, we take the majority's disclaimer at face value and treat
the question as an open one.
11
We reject the Mendez exception. Although Mendez itself
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presented a compelling case on its peculiar facts and the desire
to afford relief is understandable on that plane, we believe the
court's willingness to take liberties with the language of
section 1105a(c) is mischievous and has produced bad law.6 This
straining, dubious at the time, has been rendered all the more
suspect by recent Supreme Court opinions emphasizing the
importance of a statute's text and plain meaning. See, e.g.,
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Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594-
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95 (1992); West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-
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99 (1991); United States v. Ron Pair Enters., Inc., 489 U.S. 235,
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241 (1989); see generally David L. Shapiro, Continuity and Change
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in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 921 & n.2
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(1992) (noting judicial efforts to narrow interpretation to
coincide with the statutory text and citing recent examples). To
embellish section 1105a(c) as Mendez suggests is to import
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ambiguity into words that are as unambiguous as ordinary
linguistic usage permits. That approach is unacceptable, for it
mutes the clarion call that Congress has sounded, and, in the
bargain, muffles the Court's string of recent "plain meaning"
cases.
We think that the proper approach to construing section
1105a(c) is to begin with the text of the statute and grant its
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6One is reminded of Lord Campbell's admonition that "it is
the duty of all courts of justice to take care, for the general
good of the community, that hard cases do not make bad law."
East India Co. v. Paul, 7 Moo. 85, 111 (P.C. 1849).
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words their ordinary meanings. See Ardestani v. INS, 112 S. Ct.
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515, 519 (1991); Heno v. FDIC, 20 F.3d 1204, 1207 (1st Cir.
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1994); United States v. Charles George Trucking Co., 823 F.2d
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685, 688 (1st Cir. 1987). Beginning in this way brings our
inquiry swiftly to a close, for the plain language of the statute
prohibits judicial review of a deportation order once the order
has been executed. There is certainly no slack in the command
that the order "shall not be reviewed by any court." Having set
out this command, the statute contains no mention that it is
subject to any exceptions. And contrary to the Mendez court's
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view, 563 F.2d at 958, we do not believe that there is any
principled way to interpret the word "departed" as failing to
encompass the most relevant type of departures involuntary
departures by way of deportation. See Webster's Third New
___ ____________________
International Dictionary 604 (1986) (defining "depart" to include
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"to go forth or away: set forth: LEAVE").
When Congress plainly marks a path, courts are seldom
free to leave it and roam at will in the surrounding veldt.
Section 1105a(c) falls within this general rule. Having found a
clear meaning in the unvarnished language of the statute, we are
duty bound to honor that meaning, not to alter it by applying a
judicial gloss.
Of course, there are exceptions to this rule, such as
when statutory language, though unambiguous, leads to results
that are absurd or are diametrically opposed to the drafters'
discernible intentions. See Griffin v. Oceanic Contractors,
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13
Inc., 458 U.S. 564, 571, 575 (1982); Rubin v. United States, 449
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U.S. 424, 430 (1981). But the terrain on which this statute
rests is inhospitable to the cultivation of such an exception
because the statute, read literally, yields a sensible result.
On the whole, a literal reading helps promote Congress's
intention to eliminate excessive appeals and lend finality to the
deportation process. A judge-made exception to section
1105a(c)'s jurisdictional bar, even one limited to "colorable"
due process claims whatever that term may eventually come to
mean can too easily expand to engulf the general rule
prohibiting review, see Umanzor, 782 F.2d at 1303 n.5, and
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thereby thwart achievement of the congressional goal. We think
it is elementary that a construction which emasculates a statute
is not eagerly to be embraced.7
Nor can petitioner's professions of good faith make a
significant difference. Although there is no evidence that Baez
is seeking to abuse the appellate process, his individual
circumstances are insufficient to protect him from the plain
language of the statute. As we have noted before, "[t]hat the
reasons for Congress's decision to adopt a particular rule may
not be present in an individual case . . . is no justification
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7Moreover, the strict construction that the language of the
statute demands passes constitutional muster. Congress has broad
discretion to restrict access to the lower federal courts. See
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Ankenbrandt v. Richards, 112 S. Ct. 2206, 2212 (1992) (listing
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cases). Hence, we perceive no constitutional infirmity in the
outright denial of appellate review following an alien's
deportation. See Roldan, 984 F.2d at 90-91 (upholding
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constitutionality of 1105a(c) as jurisdictional bar to habeas
corpus); Umanzor, 782 F.2d at 1304 (same).
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14
for failing to give effect to the rule in that case." In re
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Plaza de Diego Shopping Ctr., Inc., 911 F.2d 820, 832 n.20 (1st
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Cir. 1990).
We add an eschatocol of sorts. Even if we were to
acknowledge that some extreme situations, such as a knowingly
unlawful deportation by the INS for the specific purpose of
shortstopping an alien's right to review, might justify an
exception to section 1105a(c)'s jurisdictional bar, petitioner's
claims are not of this stripe. His case hinges on a pair of
grievances. Insofar as it depends on INS's deviation from the
briefing schedule, it is baseless; the BIA has wide discretion in
administering compliance with briefing orders and determining the
consequences of a late submission. See, e.g., Getachew v. INS,
___ ____ ________ ___
25 F.3d 841, 845 (9th Cir. 1994) (finding no error in BIA's
discretionary decision to accept untimely brief from INS); see
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also 8 C.F.R. 3.1(d)(1) (1994) (providing that "the Board shall
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exercise such discretion and authority . . . as is appropriate
and necessary for the disposition of the case"). Here, INS's
six-day delay seems fribbling, and the BIA's decision not to
vitiate the appeal on that ground strikes us as both reasonable
and lawful.
Similarly, petitioner's other grievance does not
indicate the need for heroic measures. The likely explanation of
Attorney Murphy's failure to receive his copy of the BIA decision
does not implicate purposeful scheming by the INS, but suggests
the accidental misdelivery of properly addressed mail by the
15
postal service a vagary that plagues us all. And despite the
late notification, Attorney Murphy still had time to present a
motion for a stay of deportation to a member of the BIA. Once
that motion was denied, he had open, but chose not to pursue,
several other remedial avenues, including asking the district
director or a court for a stay of the deportation order. Under
the circumstances, we do not think that petitioner has alleged
the type of extreme unfairness that might warrant overriding the
plain language of the statute.
V. CONCLUSION
V. CONCLUSION
We need go no further. We join those of our sister
circuits that have followed the plain language of section
1105a(c) and found its jurisdictional bar to be absolute.
Reading the statute in that manner, the petitioner's involuntary
departure from the United States deprives us of jurisdiction to
examine the correctness of either the underlying deportation
order or the Board's disposition of the motion to reopen.
Accordingly, the petition for judicial review is
Dismissed.
Dismissed.
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