Hernandez Pineda v. INS

Opinion

USCA1 Opinion

June 27, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-2293

                            MARTA LEYLA HERNANDEZ PINEDA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

____________________

                          ON PETITION FOR REVIEW OF AN ORDER
                         OF THE BOARD OF IMMIGRATION APPEALS

____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Raymond Rivera on brief for petitioner.
            ______________
            Frank  W. Hunger,  Assistant Attorney  General, Mark  C.  Walters,
            ________________                                _________________
        Assistant Director,  Office of Immigration Litigation,  and Kristen A.
                                                                    __________
        Giuffreda, Attorney,  Civil  Division,  U.S.  Department  of  Justice,
        _________
        Office of Immigration Litigation, on brief for respondent.

____________________

____________________

Per  Curiam.    Petitioner  Marta  Leyla  Hernandez
                      ___________

            Pineda,  a citizen  of Nicaragua,  has  filed a  petition for

            review of an order  of the Board of Immigration  Appeals (the

            Board)  denying her  motions to reopen  and reconsider.   She

            sought to have the Board reconsider its final decision, dated

            July 6, 1993,  dismissing her  appeal from the  order of  the

            immigration   judge   which  denied   her   applications  for

            suspension of  deportation and  asylum.  The  Board dismissed

            the appeal as untimely.

                                          I.
                                          _

                      Petitioner  illegally entered the  United States in

            July 1984.  The  Immigration and Naturalization Service (INS)

            issued  an order  to show cause  on April 26,  1991, based on

            petitioner's failure  to present herself for  inspection upon

            entering  this country.   See  8 U.S.C.    1251(a)(1)(B).   A
                                      ___

            hearing was held before an immigration judge.  Petitioner was

            represented  by   counsel  at   this  time.     She  conceded

            deportability and  informed the  immigration  judge that  she

            would apply for asylum,  see 8 U.S.C.  1158,  and suspension,
                                     ___

            see 8 U.S.C.  1254.
            ___

                      Accordingly,  a hearing  on these  applications was

            held on January 14, 1992.  Although petitioner had requested,

            and received,  a postponement  of the  hearing on  the ground

            that she  was seeking new counsel, she appeared pro se at the

            hearing.   In an oral  decision, the immigration judge denied

both applications.   Petitioner then expressed  her desire to

            appeal  this decision  to  the Board.    At this  point,  the

            immigration judge stated:

                           And  if  you decide  to  appeal, the
                      appeal deadline is January 24,  '92.  Now
                                                            ___
                      I'm  handing you  the appeal  forms which
                      _________________________________________
                      must be filed by  the deadline date.  And
                      ___________________________________
                      a form that you  were given before, a 618
                      form  that  explains your  appeal rights.
                      Now, if  you want to appeal,  the fee for
                      an appeal  has to  be filed here  at this
                      office.  And then  the appeal form has to
                      be  mailed to  my  office  in  Arlington,
                      Virginia.  And I'll give you the address.
                      We'll  find the  address.   I'm going  to
                      give  you a  summary  of my  decision and
                      order and my address is listed at the top
                      of that form.   And I'm going to  add our
                      phone number there, too.  Now if you hire
                      a lawyer to help you with the appeal, the
                      lawyer   needs  to  fill   out  the  gold
                      appearance form.

            Administrative Record, at 123-24 (emphasis added).

                 On January  22, 1992, petitioner asked  for an extension

            of  time to file her appeal.   She was notified of the denial

            of her request on January 24th.   She then used next-day mail

            to  send her appeal.  However, her documents were returned to

            her  on  January 27th  because she  had  not used  the proper

            appeal forms.  By this time, petitioner had retained counsel.

            In  March 1992, he filed  an appeal using  the correct forms,

            but had not made out the money order for the fee to the right

            entity.   The appeal was perfected in April.  After receiving

            several  extensions of  time, petitioner  filed her  brief in

            support of her appeal in October 1992.

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On  July  6,  1993,  the  Board  issued  its  order

            dismissing petitioner's appeal as  untimely.  The motions for

            reopening and reconsideration ensued.  Petitioner argued that

            the Board had made  an error in its decision.   Specifically,

            petitioner claimed  that, at  the hearing,  she had  not been

            informed  that she was required to use specific forms to file

            an appeal.  She  acknowledged that she  had been told of  the

            January  24,  1992 deadline  and  asserted  that by  express-

            mailing  her  appeal on  the 24th,  she  had appealed  by the

            deadline.  She also  argued that she had been  misinformed by

            the local  INS  office concerning  to  whom the  money  order

            should be made payable.   Further, she pointed out  that when

            her appeal was returned to  her on January 27th, she  was not

            told  by  anyone  that  her appeal  had  not  been  perfected

            according to the regulations.

                      She next  asserted that to reject  her appeal which

            had been  "timely appealed but untimely  filed," violated due

            process.  That  is, she went on, she  should not be penalized

            when she had "fully complied" with  the instructions given to

            her.   Finally,  petitioner maintained  that the  immigration

            judge violated due process when she failed to tell petitioner

            about  the correct  forms even  though the  immigration judge

            knew that petitioner was proceeding without counsel.

                      The  Board,  in  a  per curiam  order,  denied  the

            motion.    As for  the  request for  reconsideration,  it re-

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examined its decision in light of petitioner's arguments.  It

            first  pointed out that the appeal was mailed, using next-day

            delivery, on the day it was due.  Next, the Board stated that

            the record revealed that the immigration judge had, in  fact,

            handed the proper application  forms to petitioner.  Further,

            the   immigration  judge   had  given   petitioner  "explicit

            instructions" concerning  when and  where the form  should be

            filed and  where the  fee should  be paid.   Next, the  Board

            considered  the request for reopening.  It rejected it out of

            hand, though,  because petitioner had failed  to submit "new,

            previously unavailable evidence in support of her motion. . .

            ."  Administrative Record, at 2.

                                         II.
                                         __

                      In  determining motions  to reopen  and reconsider,

            the  Board is  exercising  "discretionary authority."   1  C.

            Gordon  &  S.  Mailman,   Immigration  Law  and  Procedure   
                                      ________________________________

            305[7][a], at 3-68 (rev. ed.  1993) (footnote omitted).   "In

            reviewing a discretionary decision of the Board, we determine

            only whether  the decision  was arbitrary, capricious,  or an

            abuse  of discretion."  Martinez v. I.N.S., 970 F.2d 973, 974
                                    ________    ______

            (1st  Cir. 1992); LeBlanc v.  I.N.S., 715 F.2d  685, 693 (1st
                              _______     ______

            Cir.  1983) (court  will uphold  discretionary action  of the

            Board unless it  had no rational explanation,  did not follow

            established policies,  or was based  on impermissible grounds

            such as race discrimination).  As for the Board's findings of

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fact,  we  review   them  under  the  "substantial   evidence

            standard."   Martinez, 970  F.2d at 974.   As set  forth in 8
                         ________

            U.S.C.    1105a(a)(4),  "findings  of fact,  if supported  by

            reasonable, substantial, and probative evidence on the record

            considered as a whole, shall be conclusive. . . . "

                      A.  Motion to Reconsider
                          ____________________

                      The  Board   found,  as   matters  of   fact,  that

            petitioner had been given the appeal forms by the immigration

            judge and had  been told where and when to  file them.  There

            is  no question that the record supports these findings.  The

            immigration  judge announced, at the end of the hearing, that

            she  was handing the forms to petitioner.  She then explained

            that the fee was to be paid at the immigration office and the

            appeal  forms  sent  to  the immigration  judge's  office  in

            Virginia.   In light of such clear record evidence, the Board

            had the authority to  reject petitioner's contention that she

            never received the forms.

                      Further,  the Board's  finding that the  appeal was

            filed  late   also  is  supported  by  substantial  evidence.

            Petitioner argues  that  January 24th  was  not the  day  the

            appeal was due.   Rather, she maintains that she  had 13 days

            (rather than  10) in which to  appeal.  Thus, the  return, on

            January 27th, of petitioner's appeal materials indicates that

            her  appeal  must  have  arrived within  the  13-day  period.

            Petitioner  misreads  the regulation;  the  longer period  in

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which  to file  an appeal  applies when  the decision  of the
                                                         ________________

            immigration judge is  mailed, not when the appeal  is mailed.
            _________________                          ______

            See 8  C.F.R.   3.38(b); Da  Cruz v. I.N.S., 4  F.3d 721, 722
            ___                      ________    ______

            (9th  Cir. 1993)  (where  decision of  immigration judge  was

            mailed, petitioner had 13 days to file an appeal).

                      Based on  the foregoing, there is  no question that

            the   Board  did   not  abuse   its  discretion   in  denying

            petitioner's motion to reconsider.   The facts establish that

            her appeal was late.  Where an appeal is not taken within the

            10-day period, the right to appeal is lost.  Da  Cruz, 4 F.3d
                                                         ________

            at  722;  Matter of  G.Z.,  5  I  &  N  Dec.  295  (1953);  1
                      _______________

            Immigration Law and Procedure,   3.05[4][a], at 3-54.
            _____________________________

                      B.  The Motion to Reopen
                          ____________________

                      Motions to  reopen are disfavored and  a petitioner

            bears  a heavy burden in showing  entitlement to this relief.

            I.N.S. v. Abudu, 485 U.S. 94,  107, 110 (1988).  Given  this,
            ______    _____

            "the  Board  is to  be  accorded a  great deal  of  leeway in

            exercising  its authority."  LeBlanc, 715 F.2d at 689.  Under
                                         _______

            8  C.F.R.    3.2, the  Board is  prohibited from  reopening a

            proceeding  "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. .  . ."   Similarly, 8 C.F.R.    3.8(a)  states that

            "[m]otions to reopen shall  state the new facts to  be proved

            at the reopened hearing . . . . " 

-7-

Petitioner  failed  to meet  the  basic requirement

            that  she  present  "new  facts" that  previously  were  "not

            available."  First, petitioner knew that the appeal was to be

            filed by January 24th.  Second, the "fact" that the notice of

            appeal  was late was established as early as January 24, 1992

            when  petitioner mailed  her  appeal papers  on  the day  the

            appeal was due.  Her argument that she did not  know that her

            appeal was  late  because the  INS continued  to process  her

            appeal after January 24th  is not a "fact."   The immigration

            judge  had made clear when to file  an appeal and her lack of

            authority to grant  any extensions of time.  As  a result, we

            find  that the Board did not abuse its discretion in refusing

            to  reopen the  proceeding to  allow petitioner's  late-filed

            appeal to proceed.  See Da Cruz, 4 F.3d at 722 (Board may not
                                ___ _______

            reopen a case "solely to allow a late appeal"); Matter of D.,
                                                            ____________

            5 I & N  Dec 520, 521 (1953) (same).

                      C.  Due Process Violation
                          _____________________

                      Petitioner maintains that by not informing her that

            her appeal was late  and by continuing to process  the appeal

            during  the ensuing year and  a half, the  Board violated her

            procedural due  process rights.  She  characterizes the Board

            as  having  made an  "abrupt  change" when  it  dismissed her

            appeal as  late on July 6,  1993.  This change,  she goes on,

            deprived her of the chance to "effectively" present her case.

-8-

To  establish a  due process  violation, petitioner

            must "demonstrate prejudice which implicates  the fundamental

            fairness of  the proceeding."   See Michelson v.  I.N.S., 897
                                            ___ _________     ______

            F.2d  465, 468  (10th Cir. 1990).   Petitioner's  argument is

            that by permitting her appeal  to proceed, the Board's action

            in  "summarily"   dismissing  it  was  so   arbitrary  as  to

            constitute constitutional error.  We do not agree.  The cases

            petitioner  cites  in   support  of  her  argument   involved

            challenges to the failure of the INS to  follow its own rules

            and regulations, see  Montilla v. I.N.S.,  926 F.2d 162,  166
                             ___  ________    ______

            (2d Cir.  1991),  challenges  to  specific  regulations,  see
                                                                      ___

            Toquero  v. I.N.S.,  956 F.2d  193, 196  (9th Cir.  1992), or
            _______     ______

            challenges  to the  sufficiency of the  procedures used  in a

            specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37
                              ___ ______    _________

            (1982).

                      In  contrast, petitioner  complains  here  that  in

            following the applicable regulation concerning the filing  of
            _________

            timely appeals,  the Board  violated her due  process rights.

            Although  it would have been better if the Board had notified

            petitioner earlier in the appeals process that her appeal was

            late,  it was not constitutional error to deny the motions to

            reopen and reconsider.

                                         III.
                                         ___

                      Because  this  petition  presents   no  substantial

            question, we summarily affirm the decision of the Board.  See
                                                                      ___

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1st Cir. Rule 27.1.

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