Hadera v. Immigration & Naturalization Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 30, 1998 Decided February 27, 1998

No. 97-1047

Tsehaynesh Asfiha Hadera,

Petitioner

v.

Immigration & Naturalization Service,

Respondent

On Petition for Review of an Order of the

United States Immigration and Naturalization Service

David Goren argued the cause and filed the briefs for

petitioner.

Laura A. Smith, Attorney, U.S. Department of Justice,

argued the cause for respondent. With her on the brief were

Frank W. Hunger, Assistant Attorney General, and Christo-

pher C. Fuller, Senior Litigation Counsel. Michael P. Linde-

mann, Assistant Director, entered an appearance.

Before: Wald, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Petitioner seeks review of the Board

of Immigration Appeals' denial of her application for political

asylum. Because she failed to file her petition within the

period required by law, we dismiss it for lack of jurisdiction.

I

A native and citizen of Eritrea, petitioner Tsehaynesh

Asfiha Hadera entered the United States in October 1988 as a

nonimmigrant visitor authorized to stay six months. Because

Hadera never left the country as required by the terms of her

visa, the Immigration and Naturalization Service issued an

order to show cause in June 1994 why she should not be

deported. Conceding deportability, Hadera sought political

asylum. Alternatively, she sought withholding of deportation

or voluntary departure.

Testifying before an Immigration Judge in support of her

asylum application, Hadera explained that she grew up in the

portion of Ethiopia that became the independent country of

Eritrea in May 1993, that her husband--a supporter of the

Eritrean independence movement--was arrested and impris-

oned for his political activities, and that the beatings he

received in prison eventually caused his death. She further

testified that because she continued her husband's political

activities, Ethiopian authorities imprisoned her for six

months, beating her so severely that her right arm remains

permanently disabled. Hadera testified finally that six

months after her release from prison--and after one other

short period of incarceration--she came to the United States,

leaving her entire family in Ethiopia. Acknowledging that

the movement she supported succeeded in establishing an

independent Eritrean state, Hadera nevertheless argued that

her persecution had been so severe that she should not be

forced to return.

The Immigration Judge recognized that Hadera was perse-

cuted for her political views. Because he also found that "no

prospect of future persecution exists given the fact that

[Hadera's] political views ultimately prevailed and the politi-

cal organization she supported has succeeded in establishing

an independent country of Eritrea" and that Hadera "will

more likely be seen as a heroine than an object for potential

persecution if returned to Eritrea," the Immigration Judge

denied her asylum application as a matter of discretion, see 8

U.S.C. s 1158(a) (1994) ("[T]he alien may be granted asylum

in the discretion of the Attorney General if the Attorney

General determines that such alien is a refugee within the

meaning of section 1101(a)(42)(A) of this title.") (amended

1996). The Immigration Judge also denied Hadera's applica-

tion for withholding of deportation.

Affirming the Immigration Judge and emphasizing that

Hadera would face no persecution in the now-independent

Eritrea where her remaining family members still reside, the

Board of Immigration Appeals issued a final order of deporta-

tion on November 20, 1996, permitting Hadera to depart

voluntarily within thirty days of the date of the order. On

December 13, Hadera asked the district director for an

extension of her voluntary departure time. Denying this

request on January 14, 1997, the district director noted on

what appears to be the back of the rejection letter that "Ms.

Hadera may file a petition for review within 90 days of the

Board's decision." On January 23, 1997, Hadera filed a

petition for review in this court, arguing that the Board had

abused its discretion by denying her application for asylum.

II

Not mentioned by the parties in their principal briefs, but

critical to whether we even have jurisdiction over Hadera's

petition, section 309(c)(4)(C) of the recently-enacted Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), as

amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110

Stat. 3656 (1996) (codified in scattered sections of the U.S.C.)

("IIRIRA"), requires that a "petition for judicial review must

be filed not later than 30 days after the date of the final order

of exclusion or deportation." Id. s 309(c)(4)(C), 110 Stat. at

3009-626. While most of IIRIRA did not take effect until

April 1, 1997, see id. s 309(a), 110 Stat. at 3009-625, it

contained a set of transitional rules governing judicial review

of all final orders of deportation and exclusion entered more

than thirty days after IIRIRA's enactment, see id.

s 309(c)(4), 110 Stat. at 3009-626. Among these rules is

section 309(c)(4)(C)'s thirty-day requirement for filing peti-

tions for review of Board decisions. Even though this rule

clearly governs our review of the Board's final order of

deportation in this case (the Board issued the order on

November 20, over thirty days after President Clinton signed

IIRIRA), Hadera filed her petition on January 23, 1997, more

than a month after the thirty-day deadline had passed.

Because jurisdiction cannot be waived, see Floyd v. District

of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997) ("[J]urisdic-

tion cannot be waived and we have an independent obligation

to assure ourselves of jurisdiction, even when the parties fail

to challenge it."), we directed the parties to be prepared at

oral argument to address the jurisdictional issue. In a sup-

plemental brief and then again at oral argument, the INS

argued that we lack jurisdiction. Conceding that the thirty-

day rule applies, Hadera argued that we nevertheless have

jurisdiction because the thirty-day period did not begin run-

ning until the district director denied her motion for an

extension of voluntary departure time on January 14, and

because the district director informed her on that day that

she could file her petition for review within ninety days of the

Board's decision, thereby estopping the agency from now

claiming that her petition was untimely.

Neither of Hadera's arguments has merit. Filing a volun-

tary departure extension request does not extend the time

available to petition for review of a final order of deportation.

See Foti v. INS, 375 U.S. 217, 219 n.1 (1963) ("The granting

of voluntary departure relief does not result in the alien's not

being subject to an outstanding final order of deportation.");

Karimian-Kaklaki v. INS, 997 F.2d 108, 112 (5th Cir. 1993)

("The privilege of voluntary departure granted to petitioners

is irrelevant to the finality (and thus appealability) of the BIA

order."); see also 8 C.F.R. s 243.1 (1997) ("[A]n order of

deportation, including an alternate order of deportation cou-

pled with an order of voluntary departure ... shall be final as

of the date of the Board's decision."). Although INS counsel

was unable to explain the district director's notation that

Hadera could file a petition for review within ninety days of

the Board's decision, we need not decide whether such a

statement could affect our jurisdiction because the notation,

made about three weeks after the statutory deadline had

passed, could not possibly have caused her late filing. We

therefore lack jurisdiction over Hadera's petition. See Ma-

yard v. INS, 129 F.3d 438, 439 (8th Cir. 1997) (dismissing for

lack of jurisdiction appeal filed eighty-four days after final

order); Narayan v. INS, 105 F.3d 1335, 1335 (9th Cir. 1997)

(dismissing for lack of jurisdiction petition for review filed

forty-seven days after final order).

During oral argument, the INS identified a second problem

with Hadera's petition: Section 309(c)(4)(D) of IIRIRA states

that "the petition for review shall be filed with the court of

appeals for the judicial circuit in which the administrative

proceedings before the special inquiry officer or immigration

judge were completed." IIRIRA s 309(c)(4)(D), 110 Stat. at

3009-626. Because the Immigration Judge conducted Had-

era's hearing in Arlington, Virginia, Hadera should have filed

her petition in the Fourth Circuit.

Hadera has thus filed her petition not only too late, but also

in the wrong court. When we asked Hadera's counsel at oral

argument whether we should dismiss the petition or transfer

it to the Fourth Circuit, he urged transfer so he would have

"another shot." The INS told us that the answer might turn

on whether section 309(c)(4)(D) establishes a jurisdictional or

a venue requirement, but we think that makes no difference

in this case. Although we possess statutory authority to

transfer cases over which we lack jurisdiction "to any other

such court in which the action or appeal could have been

brought at the time it was filed," 28 U.S.C. s 1631 (1994), as

well as inherent authority to transfer cases over which we

lack venue if "in the interest of justice," Alexander v. Com-

missioner, 825 F.2d 499, 502 (D.C. Cir. 1987), neither is

appropriate here because Hadera's petition would have been

untimely even if filed in the Fourth Circuit, see Oum v. INS,

613 F.2d 51, 53 (4th Cir. 1980) (holding that court lacks

jurisdiction over petition filed after statutory deadline). Had-

era's petition is dismissed.

So ordered.