Huang v. INS ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-10-1995
Huang v INS
Precedential or Non-Precedential:
Docket 94-3187
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Recommended Citation
"Huang v INS" (1995). 1995 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/41
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 94-3187
CHUNG CHIU HUANG; CHUANG LI-CHUN HUANG;
HUA HUANG and YAO HUANG,
Petitioners
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals of the
Immigration and Naturalization Service
INS Nos. A72-188-520, A72-188-521, A72-363-558, A72-363-559
Argued October 25, 1994
BEFORE: STAPLETON, HUTCHINSON and GARTH, Circuit Judges
(Opinion Filed February 10, 1995)
Frank W. Hunger
Assistant Attorney General
Civil Division
David J. Kline
Richard M. Evans (Argued)
Carl H. McIntyre, Jr.
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
Attorneys for Respondent
Daniel W. Ernsberger (Argued)
Behrend & Ernsberger
2400 Grant Building
Pittsburgh, PA 15129
Attorneys for Petitioners
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Chung Chiu Huang and his family are citizens of Taiwan.
They came to the United States as visitors and remained beyond
the authorized period. An Immigration Judge found them
deportable. The Huangs' counsel attempted to appeal this
decision, but the appeals were dismissed by the Board of
Immigration Appeals as untimely. We will grant the Huangs'
petitions for review.
I.
The Immigration Judge issued a document memorializing
his decision at the close of the hearing in Pittsburgh,
Pennsylvania, on May 4, 1993. The document reflected that it was
being issued by the Executive Office for Immigration Review, 536
Clark Street, Chicago, Illinois. Huangs' counsel prepared
notices of appeal and attempted to file them in the local service
office of the Immigration and Naturalization Service on
Wednesday, May 12, 1993. The clerk date-stamped the notices of
appeal, accepted the filing fees, and issued receipts for the
fees. The clerk declined to retain the notices of appeal,
however, and instructed counsel to file them in the office of the
Immigration Judge in Chicago.
Counsel mailed the notices, fee receipts, and
certificates of service on opposing counsel to the office of the
Immigration Judge by certified mail on May 12, 1993. These
documents were received in Chicago on Monday, May 17, 1993.
II.
Part 3 of the Justice Department's regulations on
Aliens and Nationality spells out the jurisdiction of the Board
of Immigration Appeals and how one appeals to that Board from a
decision of an Immigration Judge. 8 C.F.R. §§ 3.0-.40 (1993).
Section 3.1(b) gives the Board appellate jurisdiction over
various decisions of Immigration Judges, including deportation
decisions. Section 3.3(a) provides in part:
§ 3.3 Notice of appeal
A party affected by a decision who is
entitled under this chapter to appeal to the
Board shall be given notice of his or her
right to appeal. An appeal shall be taken by
filing Notice of Appeal Form I-290A in
triplicate with the Service office or Office
of the Immigration Judge having
administrative jurisdiction over the case,
within the time specified in the governing
sections of this chapter. . . .
Section 3.38 then goes on to provide:
§ 3.38 Appeals.
(a) Decisions of Immigration Judges may
be appealed to the Board of Immigration
Appeals as authorized by 8 C.F.R. 3.1(b).
(b) The notice of appeal of the decision
shall be filed with the Office of the
Immigration Judge having administrative
control over the Record of Proceeding within
ten (10) calendar days after service of the
decision. Time will be 13 days if mailed.
If the final date for filing falls on a
Saturday, Sunday, or legal holiday, this
appeal time shall be extended to the next
business day.
8 C.F.R. § 3.38(a), (b) (emphasis supplied).
Consistent with these regulations, the preprinted form
given to the Huangs by the Immigration Judge on May 4, 1993,
contained the following instructions:
This decision is final unless an appeal is
taken to the Board of Immigration Appeals by
returning to this office on or before 5-14-93
three copies of Form EOIR-26 Notice of
Appeal, properly executed, together with a
fee of one hundred ten dollars ($110.00).
App. 147.1
* * * *
Filing. This notice of appeal with a
Certificate of Service on the opposing party
must be filed with the Office of Immigration
Judge having administrative control over the
Record of Proceeding within 10 calendar days
(or 13 calendar days if mailed) after service
of the decision of the Immigration Judge.
1
. Mr. Huang's copy of the document had "5-14-93" inserted in
handwriting. The other petitioners' copies contained a blank
space where a date could be inserted.
The Notice of Appeal is not to be forwarded
directly to the Board of Immigration Appeals
(BIA).
App. 138 (emphasis supplied).
III.
The Board of Immigration Appeals, in both its original
decision and its decision on reconsideration, acknowledged that
the notices of appeal were mailed to the Chicago Office of the
Immigration Judge, that the notices were received by that office
on May 17, 1993, thirteen days after the decision appealed, and
that the controlling regulation is 8 C.F.R. § 3.38(b) (1993). It
nevertheless concluded that the notices were untimely.
The decisions of the Board acknowledge no ambiguity in
§ 3.38(b). They read the sentence we have emphasized in the
above quotation to mean that the "time will be 13 days" if the
decision of the Immigration Judge is mailed, not if the notice of
appeal is mailed. In its brief before us, however, the Service
acknowledges, as we think in fairness it must, that this portion
of § 3.38(b) is ambiguous if read alone.
We view § 3.38(b) as at least ambiguous. Moreover, we
believe any reasonable lawyer perceiving an ambiguity in that
section would regard that ambiguity as being clearly resolved by
the Service's own preprinted form instructions regarding the time
for filing. The parenthetical "(or 13 calendar days if mailed)"
cannot reasonably be read in context as referring to the mailing
of the decision rather than the mailing of the notice.
While we might be willing to give some deference to the
Board's reading of the Justice Department's regulations were it
not for the advice on the preprinted form, we cannot condone its
decision in this case. The agency2 cannot advise participants in
its process to read an ambiguous rule one way and, after they
have acted, subject them to a more stringent requirement. Vlaicu
v. INS, 998 F.2d 758, 760 (9th Cir. 1993) (finding 8 C.F.R.
§ 3.38(b) and a related notice misleading and holding that where
"a party is 'misled by the court,' an appellate tribunal [has]
jurisdiction to hear an otherwise untimely appeal"); Shamsi v.
INS, 998 F.2d 761 (9th Cir. 1993) (same where regulations and
notice are misleading as to place for filing notice of appeal
from a decision of an Immigration Judge).
We have rejected the Board's suggestion that 8 C.F.R.
§ 242.21 somehow renders § 3.38(b) unambiguous. That regulation,
which is a portion of Part 242 of Title 8, provides in part:
(a) Pursuant to part 3 of this chapter
an appeal shall lie from a decision of a
special inquiry officer under this part to
the Board of Immigration Appeals. An appeal
shall be taken within 10 days after the
mailing of a written decision, or the stating
of an oral decision, or the service of a
summary decision on Form I-38 or Form I-39.
The reasons for the appeal shall be stated
briefly in the Notice of Appeal, Form I-290A;
failure to do so may constitute a ground for
dismissal of the appeal by the Board. When
service of the decision is made by mail, as
authorized by this section, 3 days shall be
2
. The Executive Office for Immigration Review is "responsible
for the general supervision of the Board of Immigration Appeals.
. . ." 8 C.F.R. § 3.0.
added to the period prescribed for the taking
of an appeal.
8 C.F.R. § 242.21 (emphasis supplied). While we agree with the
Board that the emphasized sentence extends the period for filing
a notice of appeal by three days where the Immigration Judge has
served the decision by mail, we cannot agree that this clears up
the ambiguity in § 3.38(b). The two sections can be read
together to provide two distinct extensions and, in the context
of the instructions on the preprinted form, we believe a
reasonable practitioner, as well as a reasonable lay person,
would so read them.3
The petitions for review will be granted, and the Board
will be instructed to consider the Huangs' appeals on their
merits.
3
. The Service has also argued before us that the Huangs waived
the issue we find dispositive by not raising it before the Board.
Additionally, the Service has contended that the Immigration
Judge's oral advice to the Huangs concerning the filing of an
appeal cured any ambiguity. We find neither argument persuasive.