Garcia v. INS

• Court: Court of Appeals for the First Circuit
• Decided: October 22, 1993
• Docket: 91-2113
• Status: Published

Opinion

USCA1 Opinion

October 22, 1993      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          Nos. 91-2113
               93-1420

                                 GILBERTO E. GARCIA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

                           PETITION FOR REVIEW OF ORDERS OF

                           THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                _____________________

               Carl Krueger, with whom the International Institute of Rhode
               ____________                ________________________________
          Island, Inc., was on brief for petitioner.
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               Charles   E.   Pazar,   Attorney,   Office   of  Immigration
               ____________________
          Litigation,  Civil Division,  Department  of  Justice, with  whom
          Frank W. Hunger, Assistant  Attorney General, and Robert Kendall,
          _______________                                   _______________
          Jr., Assistant Director, were on brief for respondent.
          ___

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Per   Curiam.    Petitioner  Gilberto  Garc a  contests
                    ____________

          decisions  of  the Board  of  Immigration  Appeals (the  "Board")

          ordering deportation  and refusing  to reopen and  reconsider his

          case.

                    Petitioner  is a  native and  citizen of  the Dominican

          Republic.  He has been a lawful permanent resident  in the United

          States  since  1979.   On August  19,  1988, the  Immigration and

          Naturalization Service ("INS") commenced  deportation proceedings

          against  petitioner,  alleging  his deportability  under  section

          241(a)(11) of  the Immigration  and Nationality Act  (the "Act"),

          8 U.S.C.    1251(a)(11), as  an alien  convicted of  a controlled

          substance  violation  (cocaine).   At  a  deportation hearing  on

          February 27,  1989,1 petitioner  conceded that he  was deportable

          as  charged and requested  an opportunity to  file an application

          for a waiver of deportation under section 212(c) of the Act.  See
                                                                        ___

          8 U.S.C.    1182(c).  The immigration judge assigned the case for

          a hearing  on the merits  on June 26, and  directed petitioner to

          file his  waiver application by June  16.  On  June 6, petitioner

          received  notice  that  his   hearing  had  been  rescheduled  to

          September  27.  The notice did not mention the application filing

          deadline.

                    On  September   14,  petitioner  filed  his      212(c)

          application  by paying  the  application fee  at the  Providence,

          Rhode Island office of the INS.  The application was delivered to

          the Office of the  Immigration Judge in Boston,  Massachusetts on
                              
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          1  Unless otherwise specified, all dates are during 1989.

                                         -2-

September 15.

                    On   September  18,   the  immigration   judge  ordered

          petitioner's deportation because petitioner failed to timely file

          his  written  application for  relief.   The  Board  affirmed the

          decision and denied a subsequent motion to reopen.

                                          I
                                          I

                    Petitioner asks that we  remand the case for  a hearing

          on  the merits.   He asserts that  his attorney did  not file the

          application  on  June 16  because  the  immigration judge  stated

          during  the February  27 hearing that  the application  should be

          filed ten days prior to  the hearing.  As a result,  his attorney

          allegedly met  the deadline  by sending the  application thirteen

          days  prior  to the  postponed  hearing  date  of  September  28.

          Because  the record clearly states that the application was to be

          filed  by June 16,  petitioner's attorney contends that the judge

          must have made  the statement on which he relies  off the record.

          Moreover, he  pleads that  the immigration judge  stated that  no

          application  had  been  filed  when  he  ordered  deportation  on

          September 18.   From this, petitioner's attorney  infers that the

          immigration  judge also  believed  the relevant  filing date  was

          September 18 and that the judge only ordered  deportation because

          he had not received, through some error, the application filed on

          September  14.     Petitioner   finally  urges  that   remand  is

          appropriate  because the  application was  filed late due  to the

          attorney's error  (not  petitioner's) and  because  no  prejudice

          occurred as a result of the tardy submission.

-3-

Board  regulations  authorize an  immigration  judge to

          "set  and extend time limits for the  filing of applications."  8

          C.F.R.    3.31(c)  (1993).   Applications  not  timely filed  are

          deemed waived or abandoned.  Id.  The Board found,  and we agree,
                                       ___

          that the record  clearly states  that the application  was to  be

          filed by June 16.2   Since  the application was  not filed  until

          September 14, the Board found the application waived and affirmed

          the immigration judge's deportation order.  

                    Petitioner proposes no substantial argument against the

          Board's decision.   Petitioner first emphasizes  that his counsel

          recalls that the time  limit specified was ten days prior  to the

          hearing and that the immigration judge waited until  September 18

          to order deportation.  We cannot draw the inference he desires --

          i.e., that the immigration judge also thought the application due

          only ten days before  the rescheduled hearing -- in  light of the

          plain  evidence  in the  record that  the  deadline was  June 16.

          Perhaps, for  example, the  immigration judge did  not issue  the

          order until September 18 because he reviewed his calendar on that

          day;  we can  only speculate, a  procedure contrary  to appellate

          review.  Second, failure to comply with time limitations is often

          the  fault of  counsel rather  than the  client, and  clients are

          bound  by the conduct of  their attorneys.  See Magallanes-Dami n
                                                      ___ _________________

          v. INS, 783  F.2d 931, 934 (9th Cir. 1986).  Time limits would be
             ___
                              
          ____________________

          2  The immigration judge stated at the February 27 hearing:  "I'd
          ask that you  file that [application  for section 212(c)  relief]
          not  later  than  June  16,  1989,  along  with   any  supporting
          documents.  And we'll be adjourned then to June 26 at 8:00 in the
          morning."

                                         -4-

meaningless if we excused counsel's mistakes every time the error

          prejudiced  the client.   Finally,  while petitioner  contends no

          prejudice   has  occurred,   these  appellate   proceedings  have

          substantially  delayed  petitioner's   deportation  despite   his

          eligibility  for  deportation  under    241(a)(11).    Since  the

          Board's  factual finding  that  petitioner untimely  filed his   

          212(c) application  is supported  by substantial evidence  in the

          record, we affirm  its decision to affirm the  deportation order.

          See Gouveia v. INS, 980 F.2d 814, 818 (1st Cir. 1992) ("[A] court
          ___ _______    ___

          must accept the  Board's factual determinations  so long as  they

          are  supported  by substantial  evidence  .  . .  .")  (citations

          omitted).

                                          II
                                          II

                    The authority of the Board  or the Attorney General  to

          reopen   a   deportation   proceeding  "derive[s]   solely   from

          regulations  promulgated  by  the  Attorney  General."    INS  v.
                                                                    ___

          Doherty,  112 S. Ct. 719,  724 (1992) (citing  INS v. R o-Pineda,
          _______                                        ___    __________

          471 U.S.  444, 446 (1985)).   A motion to reopen  or reconsider a

          final decision will not be granted unless petitioner presents new

          material evidence previously  unavailable or identifies  a change

          in the  applicable statutory or case  law.  See 8  C.F.R.   3.2;3
                                                      ___

          Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).  As a general
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          matter,  motions to reopen are  disfavored.  See  Doherty, 112 S.
                                                       ___  _______
                              
          ____________________

          3  8 C.F.R.   3.2 specifies that "[m]otions to reopen deportation
          proceedings shall not be  granted unless it appears to  the Board
          that  evidence sought  to  be offered  is  material and  was  not
          available  and could not have been discovered or presented at the
          former hearing."  Id.
                            ___

                                         -5-

Ct.  at  724.   The  decision  whether  to  reopen a  deportation

          proceeding lies within the Board's discretion.  See id.; Williams
                                                          ___ ___  ________

          v. INS, 773 F.2d 8, 9 (1st Cir. 1985).  In the past we  have held
             ___

          that "'[t]he denial [of a motion to reopen] will be upheld unless

          it was made without a rational explanation, inexplicably departed

          from established  policies, or  rested on an  impermissible basis

          such  as invidious  discrimination against  a particular  race or

          group.'"   Williams, 773 F.2d at  9 (quoting Leblanc v.  INS, 715
                     ________                          _______     ___

          F.2d  685, 693 (1st Cir.  1983)).  This  standard is particularly

          appropriate where  waiver of  deportation  under    212(c) is  in

          issue  because whether  waiver is  granted is  firmly within  the

          Board's discretion  and  depends  on  a balance  of  "social  and

          humane" factors.  See Gouveia, 980 F.2d at 816.
                            ___ _______

                    Under  the above  standard,  the  Board's  decision  is

          unassailable.  The only new evidence that petitioner offered is a

          detailed affidavit from his attorney concerning the circumstances

          of  his misunderstanding.4   As the Board  explained, however, it

          considered counsel's error and found  that even if the proceeding

          were reopened, the attorney's affidavit was not likely to  change

          its  finding  that the  waiver  application  had been  abandoned.

          Petitioner has not cited any change in the applicable law.

                    We therefore affirm the decisions of the Board.

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          4   Incidentally,  appellant  points out  that  the INS  has  not
          opposed reopening the case  and hearing the merits of  the 212(c)
          application.    We fail  to  see why  the  Board must  sanction a
          violation  of an immigration  judge's order because  the INS does
          not specifically oppose reopening the case.

                                         -6-