Cabrera-Alvarado v. Immigration & Naturalization Service , 54 F. App'x 12 ( 2002 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1218
DONATILO CABRERA-ALVARADO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Anthony J. Rossi with whom Rossi & Blaisdell was on brief for
petitioner.
Janice K. Redfern, Attorney, Office of Immigration Litigation,
with whom Robert D. McCallum, Jr., Assistant Attorney General,
Civil Division, and Terri J. Scadron, Senior Litigation Counsel,
Office of Immigration, Department of Justice, were on brief for
respondent.
December 20, 2002
Per Curiam. This petition for review challenges a Board
of Immigration Appeals (BIA) order. The challenged order dismissed
an appeal from an immigration judge's denial of a motion to reopen
deportation proceedings. Petitioner Donatilo Cabrera-Alvarado, a
citizen of El Salvador, entered the United States unlawfully in
late 1987 and was ordered deported on June 6, 1988. Petitioner did
not comply with the deportation order. Instead, he moved to the
Boston area, where he resided for the next decade.
On September 11, 1998, petitioner moved to reopen his
deportation proceedings. In his motion, petitioner stated that he
intended to apply for suspension of deportation under section 203
of the Nicaraguan and Central American Relief Act of 1997 (NACARA),
Pub. L. No. 105-100, 111 Stat. 2193, 2196, amended by Pub. L. No.
105-139, 111 Stat. 2644. This statutory provision restored, to
certain classes of aliens for a period of time, a right to apply
for suspension of deportation that had been eliminated by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546. See generally
Appiah v. INS, 202 F.3d 704, 707-10 (4th Cir. 2000). A related
regulation established November 18, 1999 as the deadline for filing
with the Immigration Court the underlying application for
suspension of deportation. See 8 C.F.R. § 3.43(c).
Petitioner did not file an application for suspension of
deportation with the Immigration Court on or before November 18,
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1999. Instead, he appears to have mailed his application to an INS
service center in St. Albans, Vermont on or around November 12,
1999. There is some evidence indicating that the St. Albans
service center may have received the application as early as
November 15, 1999. On December 14, 1999, the center sent
petitioner notice that it had received his application. But on
April 24, 2000, an immigration judge denied petitioner’s motion to
reopen because petitioner "has not filed an application for
relief."
Petitioner filed a pro se appeal to the BIA challenging
the immigration judge’s finding that he had not filed an
application for suspension of deportation. In his BIA brief,
petitioner stated that, in fact, he had filed such an application
with the St. Albans service center "[o]n or about November 29,
1999." Petitioner also asserted that he "was never made aware that
said application for relief was to be filed with the Immigration
Court." In a decision dated January 24, 2002, the BIA dismissed
petitioner’s appeal for failure to comply with the procedural
requirements of the NACARA. In so doing, the BIA explicitly noted
petitioner had admitted that he did not file his application with
the St. Albans service center until November 29, 1999, which was
several days after the regulatory deadline.
In his brief to this court, the now-represented
petitioner argues that, because the St. Albans service center
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actually received the application for suspension of deportation on
November 15, 1999, the application should receive consideration on
the merits. As petitioner concedes, we must uphold the BIA’s
decision unless the Board abused its discretion. See INS v.
Doherty, 502 U.S. 314, 323 (1992). Two independent reasons
support our conclusion that no abuse of discretion occurred here.
First, petitioner’s linchpin assertion that he in fact met the
November 18, 1999, deadline for filing his application directly
contradicts his statement to the BIA that he filed his application
with the St. Albans service center on November 29, 1999. See Sousa
v. INS, 226 F.3d 28, 31-32 (1st Cir. 2000) (declining to decide
whether we might address a meritorious claim not first presented to
the BIA but making clear that only exceptional circumstances, if
any, warrant an award of relief on a basis not first aired at the
administrative level). Second, petitioner has not developed any
argument at all that mailing his application to the St. Albans
service center was adequate to satisfy his regulatory obligation to
file the application with the Immigration Court. See 8 C.F.R. §
3.43(c).
Petition dismissed.
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