Garcia v. INS ( 1993 )

October 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Carl Krueger, with whom the International Institute of Rhode
Island, Inc., was on brief for petitioner.
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.
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
1 Unless otherwise specified, all dates are during 1989.
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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
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.
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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."
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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
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
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.
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.
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