Petition for Writ of Certiorari — White v. Immigration & Naturalization Service

Supreme Court brief1994

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No.

Bev Riana. ORE Oe THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

PUPI WHITE, Petitioner,

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALLAN H. BELL, ESQ.

Missouri Bar No. 19459

2022 Swift, Suite 202

North Kansas City, MO 64116

Telephone: (816) 421-1430

Facsimile: (816) 421-1124

Counsel of Record

JEFFREY S. BELL, ESQ.

Missouri Bar No. 43477

2022 Swift, Suite 202

North Kansas City, MO 64116

Telephone: (816) 421-1430

Facsimile: (816) 421-1124

Counsel for Petitioner

March 8, 1994

| “

QUESTION PRESENTED

1. Given that the Courts of Appeals for

the Eleventh and Ninth Circuits have held

that a timely filed motion to reopen or

reconsider a final order of deportation of

the Board of Immigration Appeals renders the

order nonfinal for purposes of judicial

review until the motion to reopen or

reconsidered is denied, and that the Courts

of Appeals for the Fifth and District of

Columbia Circuits have held a timely motion

to reopen or reconsider, if filed in good

faith, andere the final order nonfinal for

purposes of judicial review, did the Eighth

Circuit err in concluding, as have the Courts

of Appeals for the Third and Seventh

Circuits, that a timely filed motion to

reopen or reconsider does not render the

order nonfinal for purposes of judicial

review.

TABLE OF CONTENTS page

QUESTION PRESENTED 2

TABLE OF AUTHORITIES 4

OPINIONS OF COURT AND 6

ADMINISTRATIVE AGENCY

STATEMENT OF SUPREME COURT 7

JURISDICTION

STATEMENT OF THE CASE 9

ARGUMENT 12

1. The Eighth Circuit’s Decision 12

is in Conflict with Other Circuit Court

Decisions on the Issue

‘2. The Eighth Circuit failed to 1 9

recognize that Congress intends for judicial

efficiency and fairness concerns to outweigh

the concern of aliens engaging in abusive

appeals.

3. The Eighth Circuit failed to 24

properly analyze Supreme Court precedent

directly on point

CONCLUSION 29

APPENDIX 32

Court and Agency Decisions 32

Statutes 72

Regulations 74

Rules 79

V 5

482 U.S. 270 (1987)

J O A

Akrap v. I.N.S., 966 F.2d 267 (7th Cir. 1992)

Alleyne v. I.N.S., 879 F.2d 1177

(3rd Cir. 1989)

Attoh v. I.N.S., 606 F.2d 1273

(D.C.Cir. 1979)

Bregman v. I.N.S., 351 F.2d 401

(9th Cir. 1965)

Chu_v. I.N.S., 875 F.2d 777 (9th Cir. 1989)

Fayazi-Azad v. I.N.S. 792 F.2d 873

(9th Cir. 1986)

Fleary v. United States, 950 F.2d 711

(llth Cir. 1992)

, 720 F.2d 1471

Hyun Joon Chung v,. I.N.S,

(9th Cir. 1983), cert. denied 467 U.S. 1216

(1984)

Nocon v. I.N.S., 789 F.2d 1028

(3rd Cir. 1986)

, 932 F.2d 418

(5th Cir. 1991)

Yamada v. I.N.S., 384 F.2d 214

(9th Cir. 1967)

STATUTES

S§ v.s.Cc. § 704, Section 704 of the

Administrative Procedure Act, as amended

8 U.S.C. § 1105a (a) (1), Section 106 (a) (1)

of the Immigration and Nationality Act, as

amended

8 U.S.C. § 1105a (a) (6), Section 106 (a) (6)

of the Immigration and Nationality Act, as

amended

28 U.S.C. § 1254 (1)

LEGISLATIVE HISTORY

H.R. No. 1086, 87th Cong., lst Sess.,

j in 1961 U.S. Code Cong. & Admin.

News 2950, 2967

H.R. Rep. No. 101-955, 101st Cong., 2d Sess.

(1990), reprinted in 101 U.S. Code Cong. &

Admin. News 6798

REGULATIONS

6 C.F.R. § 3.2

8 C.F.R. § 3.8

8 C.F.R. § 103.5 (a) (1) (iv)

RULES

Fed.R.App.P. 40 (a)

Supreme Court Rule 13.1

Supreme Court Rule 13.4

OPINIONS OF COURT AND ADMINISTRATIVE AGENCY

March 19, 1985, oral decision of

Immigration Judge O. John Brahos.

y June 2, 1992, decision of the Board

of Immigration Appeals.

a. October 8, 1993, decision of the

Eighth Circuit Court of Appeals.

4. December 9, 1993, decision of the

Eighth Circuit Court of Appeals denying

Rehearing by Panel.

STATEMENT OF THE SUPREME COURT’ S JURISDICTION

On October 8, 1993, the Court of Appeals

for the Eighth Circuit dismissed as untimely

the petitioner’s Petition for Review from the

June 2, 1992, final order of deportation

issued by the Board of Immigration Appeals

("BIA").

Pursuant to Fed.R.App.P. 40 (a),

petitioner sought Rehearing by Panel of the

October 8, 1993, decision. Under the Rule

petitioner initially had until October 22,

1993, to file his Petition for Rehearing. On

motion of the petitioner the Eighth Circuit

extended the time within which to file the

Petition for Rehearing to November 4, i993.

On second motion of the petitioner the Eighth

Circuit extended the time within which to

file the Petition for Rehearing to November

5, 1993. The Petition for Rehearing was

timely received by the: Eighth Circuit on

November 5, 1993.

The Petition for Rehearing by Panel was

denied by the Eighth Circuit on December 9,

1993.

Pursuant to 8 U.S.C. § 1254 (1) (West

1993), the petitioner seeks a writ of

certiorari from this Court to review the

Eighth Circuit’s decision dismissing his

Petition for Review as untimely.

Pursuant to Supreme Court Rules 13.1 and

13.4 the petition for writ of certiorari in

the instant case is deemed timely when it is

filed with the Clerk within 90 days after the

date the Petition for Rehearing was denied.

Thus, the petitioner has until March 9, 1994,

within which to file the instant petition.

STATEMENT OF THE CASE

On March 19, 1985, an immigration judge

ordered the petitioner deported and refused

his request fer voluntary departure. The

petitioner timely appealed both the order of

deportation and denial of voluntary departure

to the Board of Immigration Appeals ("BIA").

On June 3, 1992, the BIA dismissed the

petitioner’s appeal and issued a final order

of deportation. On July 6, 1992, the

petitioner timely moved the BIA to reopen and

reconsider its decision (as of this date the

BIA has yet to rule on the motion). On

September 2, 1992, 91 days after the BIA’s

order, the petitioner’s Petition for Review

of the final order of deportation, filed

pursuant to Section 106 (a) (1), was received

by the Eighth Circuit Court of Appeals.

In its decision of October 8, 1993, the

Eighth Circuit ruled that it had jurisdiction

to consider a timely filed petition for

review of a final order of. deportation,

regardless of any pending motion to reopen or

reconsider. (Decision at 11). The Court

then dismissed the instant petition for

review for lack of jurisdiction because, in

the Court’s opinion, it was filed one day

beyond the 90 day period set forth in Section

106 (a) (1) of the INA. The record will

reflect the petitioner’s strong opposition

(and his reasoning) to the dismissal based on

the concept of constructive filing.

Pursuant to Fed.R.App.P. 40 (a), the

petitioner filed a Petition for Rehearing by

Panel urging the Eighth Circuit to rehear its

October 8, 1993, decision insofar as the

court held the filing of a motion to reopen

or reconsider within the time period set

forth for judicial review does not toll the

period for seeking judicial review of the

original order of deportation until after the

motion is denied.

On December 9, 1993, the Eighth Circuit

denied petitioner’s Petition for Rehearing.

Pursuant to 28 U.S.C. § 1254 (1) (West 1993)

and Supreme Court Rules 13.1 and 13.4, the

petitioner seeks a writ of certiorari from

the Court to review the decision of the

Eighth Circuit and to provide guidance on a

three-way split in the Circuit Courts of

Appeals on whether a timely filed motion to

reopen or reconsider a final order of

deportation renders the order nonfinal for

purposes of seeking judicial review until the

motion is denied.

ARGUMENT

1. The Eighth Circuit’s Decision is in

Conflict with Other Circuit Court Decisions

on the Issue

Section 106 (a) (1) of the INA provides

"a petition for review may be filei not later

than 90 days after the date of the issuance

of the final deportation order ..."

In addition to judicial review, the INA

regulations permit an affected alien to move

the BIA to administratively reopen or

reconsider the final deportation order.

8 C.F.R. § 3.2 (West 1992).

Because the INA authorizes an alien to

file both a motion to reopen or reconsider

and a petition for judicial review, an issue

has arisen as to whether a motion to reopen

or reconsider renders the final order of

deportation nonfinal for purposes of judicial

review until the motion is denied.

The seven Circuit Courts addressing this

issue have split fairly evenly into three

distinct groups.

The Eleventh Circuit and Ninth Circuits

expressly hold that a timely filed motion to

reopen or reconsider renders an otherwise

final order of deportation nonfinal for

purposes of judicial review. In Fleary v.

United States, 950 F.2d 711, 713 (11th Cir.

1992), the court noted

that if no petition to reopen a

deportation order of the BIA is

filed, the petitioner must file a

petition for review within 90 days

of the order of deportation. Ifa

timely motion to reopen or

reconsider is filed with the BIA,

a petition for review the

underlying deportation order must

be filed within 90 days of the

Board’s decision on the motion to

reopen or reconsider. The motions

will then be consolidated for

review pursuant to 8 U.S.C. § 1105a

(a) (6).

Similarly, in Fayazi-Azad v. I.N.S., 792

F.2d 873, 874 (9th Cir. 1986), the court held

"where a petitioner elects to file a motion

to reopen before seeking judicial review, the

otherwise appealable final order becomes no

longer appealable in this court until motion

is denied or the proceedings have been

effectively terminated." Citing Hyun Joon

Chung v. I.N.S., 720 F.2d 1471, 1474 (9th

Cir. 1983), cert. denied 467 U.S. 1216

(1984). See also Bregman v. I.N.S., 351 F.2d

401, 402-03 (9th Cir. 1965) (holding when an

appeal is taken within the six months after

a timely motion to reopen has been denied by

the BIA the court of appeals has jurisdiction

to review both the denial of the motion to

reopen and the original order of

deportation). Thus, the Ninth Circuit

follows Fleary to the extent the motion to

reopen or reconsider is filed before the

petition for review.

The District of Columbia Circuit and the

Fifth Circuit apply a variation of the

Eleventh and Ninth Circuit rule. In Attohb v.

I.N.S., 606 F.2d 1273 (D.C.Cir. 1979), the

court adopted the Ninth Circuit’s rule set

forth in Bregman. However, the Fifth Circuit

only adopted the Bregman approach "only

insofar as it implicitly recognizes that

intervening good faith petitions for

administrative relief may toll or suspend the

running of the time limit." Attoh at 1276.

See also Pierre v. I.N.S., 932 F.2d 418 (5th

Cir. 1991) (Fifth Circuit adopting Attoh,

finding "{t]his approach best merges the

traditional understanding of a ‘final order’

with the special concerns that arise in the

context of deportation orders").

The above-mentioned Circuit Courts have

determined a motion to reopen or reconsider

is "timely" filed with the BIA when done so

within the period set out in Section 106 (a)

(1) for judicial review.*

P The issue of what constitutes

"timely" filing of a motion to reopen or

reconsider has been clarified by an I.N.S.

regulation taking effect on February 10,

1994. The regulation provides that such

motions are to be filed within 30 days

The Third Circuit, Seventh Circuit and

the Eighth Circuit in the instant case, in

direct conflict with the Eleventh and Ninth

Circuits, hold that a motion to reopen or

reconsider a final deportation order has no

effect on the time period for seeking

judicial review. In Nocon v. JI.N.S., 789

F.2d 1028, i033 (3rd Cir. 1986), the court

noted that "(cjontrary to the position

advanced by the Court of Appeals for the

Ninth Circuit, we do not agree that a timely

filing of a motion to reopen or reconsider

Suspends the six month time period for

seeking judicial review of the original,

final deportation order pending the outcome

of that motion." The Third Cireutt was

concerned that aliens might use successive,

piecemeal appeals as a "dilatory tactic to

postpone the execution of deportation

after the decision. 59 Fed.Reg. 1455

(January 11, 1994).

orders." Id. at 1033. See also Akrap v.

I.N.S., 966 F.2a 267, 271 (7th Cie. 1992)

(holding the timely filing of a motion to

reopen or reconsider does not render nonfinal

the order of deportation issued by the BIA).

Moreover, in the instant case the Eighth

Circuit rejected the "good faith" test used

by the Fifth and District of Columbia

Circuits, reasoning "that it is well beyond

the scope of our role unv*» the Immigration

and Nationality Act (INA) as described by

Congress to determine whether an alien has

filed a motion to reopen or reconsider in

‘good faith’ in order to decide if we have

jurisdiction." (Decision at 4).

Thus, the Circuit Courts have developed

three separate answers to the same question.

Resolving the split on this issue is critical

to both aliens and the INS. The different

standards have led to extreme confusion

regarding an alien’s ability to seek his or

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her constitutionally protected right to

judicial review of a final order of

deportation.

For example, aliens living in the Third,

Seventh and Eighth Circuits may be denied

judicial review despite filing timely motions

to reopen and reconsider which would have

entitled them to judicial review had they

Simply resided in the Eleventh or Ninth

Circuits. In addition, an alien residing in

the Fifth or District of Columbia Circuits

will be precluded from seeking judicial

review if the court finds, after the fact,

that the motion to reopen or reconsider was

not filed in good faith.

Just as importantly, the split in the

Circuits has impeded the INS’ ability to

uniformly administer the INA. The split has

required the INS to adopt different policies

depending upon the judicial Circuit, which

can lead to confusion, inefficiency and waste

of resources.

2. The Eighth Circuit failed to

recognize that Congress intends for judicial

efficiency and fairness concerns to outweigh

the concern of aliens engaging in abusive

appeals.

Not surprisingly the Circuits are also

in disagreement regarding the Congressional

intent on the issue herein.

For example, the Ninth Circuit reasons

the tolling of the period within which to

seek judicial review can be explained in

terms of the Congressional purpose underlying

Section 106. Hyun Joon Chung v. I.N.S., 720

F.2d 1471, 1474 (9th Cir. 1983). Congress

was concerned with the widespread abuse of

the process of judicial review of deportation

orders. Id. Successive, piecemeal appeals

had purportedly been used as a dilatory

tactic to postpone the execution of

deportation orders. Id. citing H.R. No.

1086, 87th Cong., 1st Sess., reprinted in

1961 U.S. Code Cong. & Admin. News 2950,

Le a SM Te ee ea ee ee me Ee

2967. In response to this problem, "Congress

visualized a single administrative proceeding

in which all questions relating to an alien’s

deportability would be raised and resolved,

followed by a single petition in a court of

appeals for judicial review .. ." Id.

citing Yamada v. I.N.S., 384 F.2d 214, 218

(9th Cir. 1967).

In contrast, the Third Circuit, in Nocon

Vv. IN.S., 789 F.2d 1028, 1033 (3rd Cir.

1986), cited the same passage of legislative

history as the Hyun Joon Chung court as

Supporting the proposition that "filing of

motions to reopen or to reconsider would

directly contravene Congressional intent to

prevent successive, piecemeal appeals..."

The Third Circuit’s reasoning, however,

fails to address Congressional concerns

regarding the judicial, rather than the

administrative, process.

Moreover, the petitioner asserts the

1990 adoption of Section 106 (a) (6) of the

INA further supports the Ninth Circuit’s

analysis of the legislative history. Section

106 (a) (6) provides "Whenever a petitioner

seeks review of an order under this section,

any review sought with respect to a motion to

reopen or reconsider such an order shall be

consolidated with the review of the order."

Although there is no legislative history

dealing specifically with § 106 (a) (6),

Congress did provide, "unless the Attorney

General finds reasonable evidence to the

contrary, the regulations must specify that

the administrative appeal of a deportation

order must be consolidated with the appeal of

all motions to reopen or reconsider in such

deportation proceeding." H.R. Rep. No. 101-

955, 10lst Cong., 2d Sess. (1990), reprinted

in 101 U.S. Code Cong. & Admin. News 6798.

This language strongly suggests Congress is

concerned with judicial efficiency over the

ita

prospect of abusive appeals. See Fleary,

supra at 713 (motion to reopen gives BIA the

opportunity to correct its own alleged

errors, and allowing it do so prevents

unnecessary burdens being placed on the

courts of appeal).

With respect to judicial efficiency

concerns it is important to note that the

Eleventh and Ninth Circuits, and the Fifth

Circuit to a certain degree, have all ruled

Similarly on the issue. These Circuits

arguably have the greatest immigration case

load, and are therefore in the best position

to gauge judicial efficiency concerns vis-a-

vis abusive appeals tactics. Thus, great

weight should be accorded to the decisions of

these Circuits. Because these Circuits find

judicial efficiency concerns paramount, this

Court should place great emphasis on the

respective decisions of those courts.

Fairness concerns also support following

the Eleventh and Ninth Circuit rule. With

respect to motions to reopen or reconsider

the potential for abuse by the INS must be

noted. Pursuant to 8 C.F.R. 3.2, the

departure of an alien from the United States

during the pendency of a motion to reopen or

reconsider constitutes withdrawal of the

motion. Based on the regulation, the INS has

incentive to "sit on" motions to reopen or

reconsider until the court of appeals upholds

the final order of deportation.

Following the rule proposed by the

Eighth Circuit, once the alien is removed

from the United States the motion to reopen

or reconsider terminates and the alien is

stripped of his right to administrative

review. This would allow the INS to

effectively emasculate the reopening and

reconsideration provision. Such a result is

clearly inconsistent with the INA and its

regulations, especially in light of the

{

: =

precent INS rule requiring motions to reopen

or reconsider be filed within 30 days of the

j}adverse decision.

_ 3. The Eighth Circuit failed to properly

analyze Supreme Court precedent directly on

point

The Supreme Court has held that a

petition to reopen or reconsider an action of

‘the Interstate Commerce Commission, if filed

/within the time frame permitted for judicial

‘review of the Original order, "tolls the

period for judicial review of the original

/order, which-can therefore be appealed to the

courts directly after the petition for

reconsideration is denied." Ice. Ve

| Brotherhood of Locomotive Eng’rs, 482 U.S.

/270, 279 (1987). In other words, a timely

filed motion to reopen or reconsider [during

the period allowed for judicial review unless

otherwise specified] renders an otherwise

final order nonfinal for purposes of review.

'Id. at 285.

Petitioner asserts that Locomotive

Engineers is controlling of the instant case,

especially when viewed in the context of the

Immigration Act of 1990 and its accompanying

regulations and legislative history.

In attempting to distinguish Locomotive

Engineers the Eighth Circuit noted the INA

regulations tend to support finality of the

Board’s deportation order regardless of a

pending motion to reopen or reconsider.

(Decision at 5). 8C.F.R. § 3.8 provides, in

relevant part:

The filing of a motion to reopen or

a motion to reconsider shall not

serve to stay the execution of any

decision made in the case.

Execution of such decision shall

proceed unless a stay of execution

is specifically granted by the

Board or the officer of the Service

having administrative jurisdiction

over the case.

See also 8 C.F.R. § 103.5 (a) (1) (iv)

"Unless the Service directs otherwise, the

filing of a motion to reopen or reconsider or

Se ale ne

of a subsequent application or petition does

not stay the execution of any decision in a

case or extend a previously set departure

date." The Eighth Circuit reasoned that

adopting the rule of suspended finality

renders these provisions "nonsense."

(Decision at 9).

The Supreme Court, in direct

contradiction to the Eighth Circuit’s notions

of "nonsense", noted that similar language is

contained in the Interstate Commerce Act, the

Hobbs Act and the Administrative Procedure

Act. For example, Section 704 of the APA

provides:

Except as otherwise expressly

required by statute, agency action

otherwise final is final for

purposes of this section [entitled

‘Actions Reviewable’] whether or

not there has been presented or

determined an application

for ‘ : . any form of

reconsideration, or, unless the

agency otherwise requires by rule

and provides that the actions

meanwhile is inoperative, for an

appeal to superior agency

authority.

Locomotive Eng’rs, 482 U.S. at 284, citing 5

U.S.C. § 704.

The language contained in the INA

regulations is virtually indistinguishable

from that contained in the Hobbs Act, ICA or

APA.

The Supreme Court acknowledged its

holding in Lecomotive Engineers contradicted

the language of the Hobbs Act and the ICA.

Id. at 284. In explaining the contradiction,

the Supreme Court noted previous

interpretations of Section 704 and other

Similar statutes, stating "That language has

long been construed by this and other courts

merely to relieve parties from the

requirement of petitioning for rehearing

before seeking judicial review (unless, of

course, specifically required to do so by

statute .. .), but not to prevent petitions

for reconsideration that are actually filed

from rendering the orders under

reconsideration nonfinal." Locomotive

Eng’rs, 482 U.S. at 284-85.

Under the regulations of the ICA a party

must move to reopen or reconsider ICC

decisions within twenty days. Locomotive

Eng‘rs, 482 U.S. at 279 n.2.- The Attorney

General recently implemented a similar time

requirement (30 days) respecting motions to

reopen or reconsider under the INA. As the

language of the INA and its regulations is

basically the same as that of the ICA or APA,

the reasoning of the Supreme Court in

Locomotive Engineers applies to the INA as

well.

The Ninth Circuit, in Chu v. I.N.S., 875

F.2d 777 (9th Cir. 1989), has indeed applied

the Locomotive Engineers reasoning to timely

filed motions to reopen and reconsider final

orders of deportation. The court noted "we

find no principled basis upon which to

distinguish {the instant case] from

Locomotive Engineers and its progeny." Id.

at 781.

The Third Circuit, however, in Alleyne

v. I.N.S., 879 F.2d 1177 (3rd Cir. 1989)

refused to apply Locomotive Engineers to

motions to reopen or reconsider final orders

of deportation. The court noted that "[iJn

the immigration context, Congress’ has

determined that the potential for abusive

appeals outweighs efficiency concerns." Id.

at 1181.

Because the Circuits are clearly split

on the application of Locomotive Engineers to

the INA, petitioner asserts Supreme Court

guidance is necessary to resolve this issue.

4. Conclusion

In sum, the petitioner respectfully

asserts that the INA and accompanying

legislative history, as well as this Court’s

precedent support a finding that a timely

filed motion to reopen and reconsider a final

order of deportation renders the order

nonfinal for purposes of judicial review

until the motion is denied, and as such the

Court of Appeals for the Eighth Circuit erred

in failing to dismiss the petitioner’s

Petition for Review as prematurely filed.

Thus, the petitioner respectfully requests

the Court to reverse the Eighth Circuit’s

decision dismissing his Petition for Review

for lack of jurisdiction and to order the

Eighth Circuit to enter its order dismissing

his Petition for Review as prematurely filed

with leave to refile within 90 days of the

BIA’s decision denying his motion to reopen

and to reconsider (if necessary).

Respectfully submitted,

ALLAN H. BELL & ASSOCIATES

Allan H. Bell, Esq.

Missouri Bar No. 19459

Jeffrey S. Bell, Esq.

Missouri Bar No. 43477

2022 Swift, Suite 202

North Kansas City, MO 64116

Telephone: (816) 421-1430

Facsimile: (816) 421-1124

ATTORNEYS FOR PETITIONER

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 92-2949

)

PUPI WHITE, )

)

Petitioner, ) Petition for

) Review from

-versus- ) the Board of

) Immigration

IMMIGRATION AND NATURALIZATION) Appeals

SERVICE, )

)

Respondent. )

Submitted: March 17, 1993

Filed: October 8, 1993

Before BOWMAN, Circuit Judge, FLOYD R.

GIBSON, Senior Circuit Judge, and MORRIS

SHEPPARD ARNOLD, Circuit Judge.

BOWMAN, Circuit Judge:

Pupi White petitions this Court for

review of a deportation order issued by an

immigration judge and affirmed by the Board

of Immigration Appeals (the Board). We

conclude that White’s petition for review as

untimely filed, and that we therefore have no

jurisdiction to review the order.

Accordingly, we dismiss the petition.

White, a citizen of Western Samoa,

entered the United States on a tourist visa

in June 1979.. Although the maximum period he

was to have been permitted to stay in this

country under the terms of the visa was three

months, he never has left. In April 1984, he

made a false statement on a passport

application, claiming he was a United States

citizen when he knew that he was not. When

discovered, that action triggered deportation

proceedings against White, for remaining in

the United States longer than permitted and

for failing to comply with the conditions of

his nonimmigrant status. In January 195, he

was convicted under 18 U.S.C. § 911 (1988)

for "falsely and willfully represent[ing]

himself to be a citizen of the United

States." He received a sentence of one year,

suspended pending successful completion of

one year of probation.

In March 1985, an immigration judge

found White deportable and denied his request

for voluntary departure.* White appealed to

the Board, which, seven years later, on June

3, 1992, dismissed the appeal, agreeing that

White was ineligible for voluntary departure.

The Bo&érd upheld the immigration judge’s

conclusion that White’s conviction under §

911 was for a crime involving’ moral

* The Attorney General, charged with

enforcing the immigration laws, 8 U.S.C. §

1103 (a) (1988), has discretionary

authority to grant a deportable alien

voluntary departure if the alien can

demonstrate good moral character for the

five years preceding application. Id. §

1254 (e) (Supp. IV 1992). Voluntary

departure is desirable for the standpoint

of the deportable alien as it facilitates

reentry into this country. See, e.g., id.

§§ 1182 (a) (6), 1326 (1988 & Supp. IV

1992).

turpitude, which precluded White from proving

the good moral character required for

voluntary departure under 8 U.S.C. §-1254 (e)

(Supp. IV 1992). See 8 U.S.C. § 1101 (f) (3)

(Supp. IV 1992). On July 6, 1992, White

moved the Board to reopen and reconsider his

case and for a stay of deportation. On

September 2, 1992, his petition for review of

the Board’s decision was filed with this

Court.

White argues that the Board abused its

discretion in deciding that he was not

entitled to voluntary departure. According

to White, the Board based its decision on an

erroneous interpretation of law in ccncluding

that White’s § 911 conviction was for a crime

involving moral turpitude. The Immigration

and Naturalization Service (INS), in its

response, argues that the Board’s decision

was correct, but also challenges’ the

jurisdiction of this Court to review the

vat

ia} .

Board’s decision in the first instance,

asserting that White’s petition is time-

barred. It is without dispute that White’s

petition for review was filed with this Court

out of time, although White asks. for

equitable relief from the timeliness

requirement. Before we consider the parties’

arguments, however, we first must resolve a

different jurisdictional issue raised by this

Court sua sponte at oral argument.

This Court has exclusive jurisdiction to

review Board orders, but only when the

petition for review is filed within ninety

days of issuance of a "final deportation

order." 8 U.S.C. § 1105a (a) (1) (Supp. IV

1992). As noted above, on July 6, 192, White

filed with the Board a motion to reopen and

reconsider. As of the date of the submission

of this case (and the parties have not

advised the Clerk of any change), the Board

has not ruled on that motion. Thus the

question for us to decide is whether a

pending motion to reopen or reconsider

renders an otherwise final deportation order

not final for purposes of review, thus

depriving this Court of jurisdiction. The

practical result of that conclusion would be

to extend the time for filing a petition for

review to ninety days beyond the Board’s

denial of the motion to reopen or reconsider,

and to make premature any petition filed

before the Board denies the motion.

This is a case of first impression in

this Circuit. The issue has been addressed

in other courts of appeals, but’ those

circuits are split. Compare Fleary v._ INS,

950 F.2d 711, 713 {ZiGR . Cig, 1992)

(dismissing petition for review because it

was filed when motion to reopen was pending,

thus there was no final order to review when

petition was filed, and petition was not

para

refiled within ninety days of denial of

motion to reopen) and Chu v. INS, 875 F.2d

777, 779-80 (9th Cir. 1989) (holding that

petition to reopen or reconsider filed with

the Board renders deportation order

nonfinal)? with Akrap v. INS, 966 F.2d 267,

271 (7th Cir. 1992) (holding that Board’s

deportation order was final notwithstanding

pending motion to reopen) and Alleyne v. INS,

879 F.2d 1177, 1181 (3d Cir. 1989) (same);

cf. Pierre v. INS, 932 F.2d 418, 421-22 (5th

Cir. 1991) (per curiam) (allowing a "petition

for rehearing" filed with the Board in “good

faith" to toll the running of the time limit

for judicial review); Attoh v. INS, 606 F.2d

* In Berroteran-Melendez v. INS, 955

F.2d 1251, 1254 (9th Cir. 1992), however,

the Ninth Circuit held that a motion to

reopen or reconsider filed before a later

filed but timely petition for review

destroys finality of the Board’s

deportation order, but such a motion filed

after the petition for review is lodged

does not affect the finality of the order.

1273, 1275 n.15 (D.C.Cir. 1979) (per curiam)

(same). Complicating the question is a case

decided under the Interstate Commerce Act

(ICA) by the Supreme Court, wherein the Court

concluded that a petition to reopen or

reconsider an action of the Interstate

Commerce Commission (ICC), if filed within

the time frame permitted for judicial review

of the original order, "tolls the period for

judicial review of the original order, which

can therefore be appealed to the courts

directly after the petition for

reconsideration is denied." ict. Ws

Brotherhood of Locomotive Eng’rs, 482 U.S.

270, 279 (1987). We find the ICC case

distinguishable for a number of reasons, and

disagree with the reasoning of the Ninth and

Eleventh Circuits. We also believe, contrary

to the Fifth and District of Columbia

Circuits, that it is well beyond the scope of

our role under the Immigration and

Nationality Act (INA) as described by

Congress to determine whether an alien has

filed a motion to reopen or reconsider in

"good faith" in order to decide if we have

jurisdiction.

We must distinguish the Locomotive

Engineers case because judicial review of

both final orders of deportation and ICC

final orders is governed, in general terms,

by the Hobbs Act, 28 U.S.C. §§ 2341-51. See

8 U.S.C. § 1105a (a) (1988 & Supp. IV 1992);

Locomotive Eng’rs, 482 U.S. at 277. In

Locomotive Engineers, the Supreme Court

construed the language found in the Hobbs

Act, as well as the language from the

Administrative Procedure Act (APA) and the

ICA, to reach a conclusion--nonfinality of

final orders when a motion to reconsider is

pending--that appears to contradict the

express language of the relevant statutes.

see Locomotive Eng’rs, 482 U.S. at 284-85.

The Hobbs Act and the APA apply also to the

review of orders under the INA. There are,

however, features of the INA and its

regulations, and the policy concerns behind

them, that augur for a different result when

a final deportation order is the reviewable

action.’

The INA regulations are not definitive

on the issue, but tend to support finality of

the Board’s deportation order regardless of

a pending motion to reopen or reconsider.

The regulations provide that, in general,

Board decisions "shall be final except in

those cases reviewed by the Attorney General"

or in those cases that are returned to the

INS or the immigration judge for further

* The Immigration and Nationality Act

controls when its provisions conflict with

the Hobbs Act. See 8 U.S.C. § 1105a(a)

(1988 & Supp. IV 1992).

—s — --

proceedings. S C.F RR. § 252 (a “C2}.* Me

regulations further state, more specifically,

| that “an order of deportation .. . shall

become final upon dismissal of an appeal by

the Board of Immigration Appeals." Id. §

243.1. Nowhere in the INA or its regulations

is there any indication that a motion to

| reopen or reconsider, regardless of when it

is filed or decided, has a bearing on the

finality of a deportation order.

In immigration law, motions to reopen

and reconsider are not authorized by statute,

but by the Attorney General in regulations

promulgated pursuant to the INA, and the

granting of the motions is entirely

discretionary with the Board. INS v.

Doherty, 112 S.Ct. 719, 724 (1992). The

motions are new claims in the administrative

’ All citations to the Code of

Federal Regulations in this opinion are to

' the 1993 edition.

process that may be filed in "any case in

which a decision has been made by the Board."

8 C.F.R. § 3.2. No such motion is required

to exhaust administrative remedies. See 8

U.S.C. § 1105a (c) (1988) (declaring that no

judicial review is possible until the alien

has “exhausted the administrative remedies

available to him as of right under the

immigration laws and regulations"); Castillo-

Villagra v. INS, 972 F.2d 1017, 1023 (9th

Cir. 1992) (holding that reopening is

discretionary remedy, not available "as of

right" and so motion to reopen is not

required to exhaust administrative remedies) ;

Rhoa-Zamora v. INS, 971 F.2d 26, 31 (7th Cir.

1992) (same), cert. denied, 113 S.Ct. 1943

&2231 (1993). Contra Dokic v. INS, 899 F.2d

530, 532 (6th Cir. 1990) (per curiam).

Motions to reopen or reconsider in the

immigration context are not appeals to the

Board from its own order, but are more

accurately described as collateral attacks on

cf. Locomotive Eng’rs, 482 U.S. at 279 n.2

| the Board’ order. See 8 C.F.R. §§ 3.2, 3.87

| qiekia the ICC regulation that designates

la "discretionary appeal" to the ICC a

| "petition for administrative review," unless

I the appeal is from an action of the entire

Icc, in which case it should be designated a

i "petition to reopen"). The grounds that may

be alleged in support of a motion to reopen

or reconsider a decision by the Board are

quite rigid and are very different from those

grounds appropriately set forth in a petition

for review to the court of appeals, where

review is limited to the administrative

' record and the findings of fact. 8 U.S.C. §

1105a (a) (4) 1988).

These motions are more analogous to

motions for relief from judgment for mistake

or for newly discovered evidence made

pursuant to Federal Rule of Civil Procedure

60 (b) and Federal Rule of Criminal Procedure

33. See Doherty, 112 S.Ct. at 724 ("Motions

for reopening of immigration proceedings are

disfavored for the same reasons as are

petitions for rehearing, and motions for a

new trial on the basis of new discovered

evidence."); INS v. Abudu, 485 U.S. 94, 107

& n.12 (1988) (citing cases applying Federal

Rule of Criminal Procedure 33). Ina civil

case tried in federal court, a party has a

year from judgment within which to bring such

a motion, but the motion "does not affect the

finality of a judgment or suspend its

operation." Fed.R.Civ.P. 60 (b). In the

case of a criminal conviction, "[a] motion

for a new trial based on the grounds of newly

discovered evidence may be made only fore or

within two years after final judgment, but if

an appeal is pending the court may grant the

motion only on- remand of the case."

Fed.R.Crim.P. 33. By the same token, a

RT LA Ga RF Sa (tI OER la

| Lap ln hth i A es Ree RM A aay, eth

collateral habeas corpus attack on a criminal

conviction, made after the direct appeals are

completed, does not suspend finality of the

conviction while the habeas action is

pending.

The Hobbs Act gives the aggrieved party

sixty days to petition for review, 28 U.S.C.

§ 2344 (1988), but Congress saw fit to extend

that period to ninety days in the case of

final orders of deportation, 8 U.S.C. § 1105a

(a) (1). Under the INA regulations a motion

to reopen or reconsider may be brought at any

time before the alien departs, 8 C.F.R. §

3.2, compared with decision under the ICA,

where a party must move to reopen or

reconsider ICC decisions within twenty days,

Locomotive Eng’rs, 482 U.S. at 279 n.2. If

» we were to adopt the rule of suspended

finality we would leave the deportation

process, already designed to give deportable

aliens more time to challenge deportation

orders than is available to those challenging

other administrative decisions, open to abuse

by deportable aliens seeking to delay

deportation.

An alien under a final deportation order

could wait until just before the ninety-day

appeal period expired and then file a motion

to reopen or reconsider. The Board’s denial

of the motion would then be reviewable by

this Court. Aiyadurai v. INS, 683 F.2d 1195,

1199 (8th Cir. 1982). If the deportation

order were not final until the motion to

reopen or reconsider were denied, and if the

alien had not been deported by the time the

motion were decided, he could appeal from the

denial of that motion--and then file another

motion to reopen because of the Board’s new

order denying the first motion. If we permit

motions to reopen or reconsider to suspend

finality of a deportation order, there

apparently is nothing to keep an alien from

ey AL pain Leelee, Me Ae ES, Bis

filing such motions ad infinitum, as the

motions may be sought in any case in which

the Board renders a decision--presumably

including a decision denying a motion to

reopen. See Butros v. INS, 990 F.2d 1142,

1152 (9th Cir. 1993) (en banc) (Trott, J.

dissenting) (noting that alien could

manipulate the system so as to delay finality

of deportation order indefinitely); See also

Rhoa-Zamora, 971 F.2d at 33. Because of this

potential for abuse, we are not convinced, as

apparently is the Ninth Circuit, see

B fe) = , 83S F.2a 128i,

1255 (9th Cir. 1992) (citing Chu, 875 F.2d at

779), that concerns of judicial efficiency

compel staying judicial review pending

decision on the motion to reopen or

reconsider. Like the Third Circuit, we

believe that, "[i]n the immigration context,

Congress has determined that the potential

for abusive appeals outweighs efficiency

concerns." Alleyne, 879 F.2d at 1181.

We find support for our conclusion in

the fact that a petition for judicial review

in most cases will stay deportation until

review is completed. 8 U.S.C. § 1105a (a)

(3) (Supp. IV 1992). A motion to reopen or

reconsider, however, does not have the same

effect:

The filing of a motion to reopen or

a motion to reconsider shall not

serve to stay the execution of any

decision made in the case.

Execution of such decision shall

proceed unless a stay of execution

is specifically granted by the

Board of the officer of the Service

having administrative jurisdiction

over the case.

8 C.F.R. § 3.8 (a)? see also id. § 103.5 (a)

(1) (iv) ("Unless the Service directs

otherwise, the filing of a motion to reopen

or reconsider or of a subsequent application

for petition does not stay the execution of

any decision in a case or extend a previously

set departure date."). Without the automatic

Eee AE ne Rt hat NS. eT eR ERE dlp NONI M echltin Riaes Piel Bee's

Ee es ee

stay of deportation triggered by a timely

petition for review (or the granting of a

discretionary stay), the INA regulations make

an alien immediately deportable in spite of

his motion to reopen or reconsider and

notwithstanding, we assume from the plain

language of the regulations, any suspended

finality (for review ‘purposes) of the

deportation order.

If the filing of a motion to reopen or

reconsider within the ninety days permitted

for filing a timely petition for review

renders a deportation order nonfinal for all

purposes, then either the deportation order

would be a nullity and there would be nothing

to execute (and sections 3.8 (a) and 103.5

(a) (1) (iv) would be nonsense), or the order

would still be enforceable but the petition

for review would be premature, the automatic

stay would not be in effect, and the alien

would be immediately deportable for as long

as the motion to reopen were pending. Courts |

advocating suspended finality have not chose

between these two possibilities, but in our

view neither is particularly satisfactory.

Unlike the situations likely to arise under

orders from other administrative agencies,

nothing is more final under immigration law ;

than deportation, as the alien has no

recourse in the court of appeals or with the |

Board once he has left the country. 8 U.S.C.

§ 1105a (c) (stating that the court of

appeals cannot review a final order of

deportation if tthe alien has left the |

country); 8 C.F.R. § 3.2 (stating that a

motion to reopen or reconsider shall not be

made if the alien has left the country, and

any such motion shall be considered withdrawn

if the alien leaves the United States while

the motion is pending). The automatic stay

of execution of a final order of deportation

that accompanies a petition for review,

considered by Congress important enough to be

mandatory in immigration law, is corrupted by

the scenario of suspended finality.

We note that the 1990 amendments to the

INA added a= provision that requires

consolidation of a petition for judicial

review of a decision of a motion to reopen or

reconsider. 8 U.S.C. § 1105a (a) (6) (Supp.

IV 1992). Although courts on both sides of

the question of whether a motion to reopen or

reconsider renders a final order of

deportation nonfinal have seized upon 8

U.S.C. § 1105a (a) (6) and attributed to it

various meanings, we believe this subsection

to be irrelevant to the question. Compare

Akrap 966 F.2d at 271 (concluding that §

1105a (a) (6) supports finality of

deportation order regardless of pending

motions) with Fleary, 950 F.2d at 713

(finding support in § 1105a (a) (6) for

conclusion that pending motion suspends

finality). We conclude that § 1105a (a) (6)

means only that if both reviews are pending

at the same time they should be heard

together. We do not think Congress intended

by this simple provision to interfere with

the goal of expediting deportation once the

alien’s status has been determined. |

Congress intended the immigration laws

to expedite deportation once an alien’s

deportability is established. Alleyne, 879

F.2d at 1180. "In administering this

country’s immigration laws, the Attorney

General and the INS confront an onerous task

even without the addition of judicially

augmented incentives to take meritless

appeals, engage in repeated violations, and >

undertake other conduct solely to drag out

the deportation process." INS v. Rios-—

Pineda, 471 U.S. 444, 450-51 (1985). If we

were to suspend action on petitions for

review of final deportation orders merely

because motions to reopen or reconsider have

been filed, we would encourage otherwise

deportable aliens to filed unwarranted and

meritless motions of this sort, and appeals

from denial of those motions, in order to

delay deportation. See Rhoa-Zamora, 971 F.2d

at 33. Such a result is plainly at odds with

the Congressional purpose, and would serve

only to facilitate a deportable alien’s

efforts "to prolong litigation in order to

delay physical deportation for as long as

possible." Rios-Pineda, 471 U.S. at 450.

"The purpose of an appeal is to correct legal

errors which occurred at the initial

determination of deportability; it is not to

permit an indefinite stalling of physical

departure in hope of eventually satisfying

legal prerequisites." Id.

We hold that a motion to reopen or

reconsider pending before the Board of

Immigration Appeals has no effect on the

finality, or the ripeness for judicial |

review, of a final order of deportation.®

Thus, we have jurisdiction to consider a

petition for review of a final order of

deportation timely filed with this Court, |

regardless of any pending motion to reopen or —

reconsider.

il.

In part I of this opinion we have held |

that White’s filing a motion to reopen or |

reconsider does not affect our present |

jurisdiction over his petition for review of j

the INS’s final order of deportation. We ‘

turn now to the INS’s contention that White’s :

* Our holding has no effect on this

Court’s discretion to hold in abeyance a

petition for review of a final deportation

order pending the Board’s decision on a

motion to reopen or reconsider. See

Lozada v. INS, 857 F.2d 10, 12 (1st Cir.

1988) (accepting jurisdiction over

petition notwithstanding later-filed

motion to reopen, but holding case in

abeyance pending Board’s decision on

motion).

petition was not timely filed, and that we

lack jurisdiction for that reason. It is

undisputed that White mailed his petition by

registered mail from Kansas City, Missouri,

on Friday August 28, 1992. To be timely

filed, it was due in the office of the Clerk

of this Court in St. Louis, Missouri, no

later than September 1, 1992, but it was not

received until September 2, 1992. White

acknowledges that the petition was filed out

of time but contends that it was

constructively filed because the United

States Postal Service took five days to

deliver it. White asserts that this Court

therefore has "equitable jurisdiction,"

Petitioner’s Reply Brief at 8,

notwithstanding that he had eighty-five days

before August 28 within which to timely file

the petition.

This is not a situation in which we have

discretion to waive the filing requirement.

The timeliness requirement set forth in the |

INA is “mandatory and jurisdictional." Lee §

v. INS, 685 F.2d 343 (9th Cir. 1982) (per |

curiam). We are further constrained by

Federal Rule of Appellate Procedure 26 (b),

which states that we may not "enlarge the.

time prescribed by law for filing a petition

to . . . review . . . an order of an

administrative agency, board, commission or —

officer of the United States, except as ~

specifically authorized by law."

The cases White cites in support of his |

argument for equitable relief from the time

limit were decided under Federal Rule of

Appellate Procedure 4 (a), which concerns the |

notice of appeal required to be filed with |

the district court in order to appeal —

the judgment in a civil action. But because

a petition for review of a deportation order

=—A,

is a direct appeal to the court from an

administrative decision, the rule that

applies to filing the petition is Federal

Rule of Appellate Procedure 25 (a) (emphasis

added):

Papers required or permitted to be

filed in a court of appeals shall

be filed with the clerk. Filing

may be accomplished by mail

addressed to the clerk, but filing

shall not be timely unless the

papers are received by the clerk,

within the time fixed for filing,

except that briefs and appendices

shall be deemed filed on the day of

mailing if the most expeditious

form of delivery by mail, excepting

special deliver, is utilized.

The specific timeliness language in Rule 25

(a), absent from Rule 4 (a) causes us to

question the applicability of Rule 4 (a)

cases here. Moreover, even if we thought we

were empowered under our rules and the INA to

grant equitable relief of the kind White

seeks, he would not be entitled to such

relief under the facts here. White was fast

approaching the filing deadline when he

finally mailed his petition. He could have

chosen a more efficient method instead of

selecting one (registered mail) that could

actually slow down delivery. In these

circumstances, we are unable to accept

White’s argument that the post office is

petition. We hold that White’s petition for

review is time-barred.

We are not without sympathy for White,

who appears to have established himself as a

valuable member of the community, and his

family. But we also must record our dismay

about the amount of time he has_ been

permitted to remain in the United States

illegally. Had he been deported when he

first overstayed his visa, he might already

have returned to the country legally and

would not now have to be separated from his

family and the home he has known here for

some fourteen years. That a case like this

one could occur suggests that a Congressional

review of the immigration laws and their

ee ee ee ee se lL

administration is very much in order.

White’s petition for review, having been

untimely filed, is dismissed for lack of

jurisdiction.

Decision of the Board of Immigration Appeals |

Files:

In re:

A26 635 277 - Kansas City Date: |

A26 635 281 June 3, 1992

A26 635 282

A26 635 283

PUPI WHITE MASAUTELE WHITE

HELLEN TOESE WHITE HENRY WHITE

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS:

Allan H. Bell, Esquire

2022 Swift, Suite 202

N. Kansas City, MO 64116-3442

ON BEHALF OF SERVICE: Paula V. Davis

CHARGE:

Order:

General Attorney

Sec. 241(a)(2), I&N Act [8 U.S.C.

Section 1251(a)(2) ] - Ff

Nonimmigrant - remained longer than |

permitted (all respondents)

Sec. 241(a)(9), I&N Act [8 U.S.C. |

comply with conditions of status |

(adult male respondent)

APPLICATION: Voluntary departure —

In a decision dated March 19, 1985, an ™

immigration judge found the adult male ™

respondent (A26 635 277) deportable under _

Sections 241(a)(2) and (9) of the Immigration

and Nationality Act, 8 U.S.C. Sections

1251(a)(2) and (9), denied him voluntary

departure in the exercise of discretion, and

ordered him deported to Western Samoa. In

the same decision, the remaining respondents

were found deportable under Section 241

(a)(2) of the Act, granted voluntary

departure, and alternatively ordered deported

to Western Samoa. The respondents appealed.

This appeal with respect to the adult male

respondent will be dismissed and the

deportation proceedings with regard to the

remaining respondents (A26 635 281/282/283)

will be terminated.’ The request for oral

* On May 27, 1992, counsel for the

Immigration and

naturalization Service informed this Board

that the adult male respondent’s wife (A26

635 281) and two children (A26 635

282/283) were adjusted to lawful permanent

resident status on May 8, 1989. The

appeals of these tiree respondent’s,

therefore, are moot. Hence, the remainder

of this decision will be devoted to the

argument before this Board is denied.

C.F.R. Section 3.1(e) (1992).

To begin with, we do not believe the”

denied a fair hearing before an impartial

judge. The fact that the immigration judge

asked questions of the respondent does not

establish that he overstepped his duties as

an immigration judge or that he was hostile |

to the respondent or his attorney.

Immigration judges have broad discretion

concerning the conduct of deportation

hearings and may question respondents to

facilitate the hearing and ascertain the

relevant facts. See 8

C.F.R. Sections 3.10, 242.8 (1992). We have

received the record in its entirety and do

not find sufficient support for’ the

contentions raised by the adult male

respondent (A26 635 277) with respect to

his case only.

ss ore

respondent’ claim of bias by the immigration

judge to warrant the conclusion that the

immigration judge’s conduct deprived him of

a constitutionally fair proceeding. See

Matter of Exame, 18 I&N Dec. 303 (BIA 1982).

Moreover, even it we were inclined to

conclude otherwise, the respondent has now

shown that he was prejudiced as a result of

the immigration judge’s reported mishandling

of his case. See Matter of Santos, 19 I&N

Dec. 105 (BIA 1984); Matter of Garcia-Flores,

17 I&N Dec. 325 (BIA 1980). The respondent

has not raised any challenges to the

immigration judge’s findings of

deportability. And, while the respondent

believed the immigration judge erred in

denying him voluntary departure, it is clear

from the record that he was statutorily

ineligible at the time for that form of

relief. To this end, we note that in 1985

the respondent here was convicted for

wilfully and knowingly representing himself

to be a United States Citizen on a Department

of State Application for United States |

Passport (Exh. 2A).* Such a crime involving

fraud and the making of false statements is —

a crime involving moral turpitude. See —

Matter of Correa-Garces, Interim Decision —

3169 (BIA 1992). As such, when the —

1985, the respondent, having been recently

convicted of that crime, was precluded by

operation of Section 101(f)(3) of the Act, 8

U.S.C. Section 1101(f)(3), from establishing

the requisite 5 years of good moral character i

with which to statutorily qualify for relief ?

under Section 244(e) of the Act, 8 U.S.C. |

Section 1254(e). Voluntary departure,

therefore, was properly denied and no

* The respondent received a l-year

prison term with the execution of that

sentence suspended, and he was placed on

probation for 1 year (Exh. 2A).

prejudice has been shown.

The respondent’s final challenge

concerns this appeal itself. He asks that

this appeal be held in abeyance pending

determination of his application for

adjustment of status under Section 210 of the

Act, 8 U.S.C. Section 1160 (SAW provisions).

Without ruling on the merits of such arn

application, which is clearly beyond the

scope of this appeal, it appears’ the

respondent, having been convicted of a crime

involving moral cuvattese, does not qualify

for adjustment under Section 210 of the Act.

See Sections 210(c)(2) and 212 (a)(9) of the

Act, 3 oe Sections 1160(C)(2) and

1182(a)(9); Matter of Castro, 19 I&N Dec. 692

(BIA 1988). Therefore, we decline to hold

this appeal in abeyance pending the

disposition of that application.’

Accordingly, the following orders will be

entered.

ORDER: As to the adult male

respondent (A26 635 277), this appeal is

dismissed.

FURTHER ORDER: As to the remaining

three respondents (A26 635 281/282/283),

deportation proceedings are terminated ana |

their records of proceedings shall be

> In support of his claim that he is

eligible for adjustment as a seasonal

agricultural worker, the respondent has

come forward with evidence indicating that

he has successfully completed his parole

and that he is presently seeking a

presidential pardon for his 1985

conviction. He also has produced a letter

from the federal judge who presided over

his criminal case asking that’ the

respondent’s conviction be given minimal

effect in these immigration proceedings.

Whatever the merits of the respondent’s

post-conviction relief may . be, the

respondent’s conviction remains a valid

conviction for these purposes. See

= v. INS, 548 F.2d 233

Longoria-Castenada

(8th Cir. 1977), cert. denied, 434 U.S.

853 (1978).

Ne eerie,

St ree de ee

returned to the Office of the

Judge with further action.

Immigration

FOR THE BOARD

United States of America

U.S. Department of Justice

Executive Office for Immigration Review

Office of the Immigration Judge

In the Matter of:

In Deportation Proceedings Under

Section 242 of the Immigration and

Nationality Act

Pupi White File No.: A26 635 277

Masautele White A26 635 281

Hellen White A26 635 282

Henry White A26 635 283

Respondents.

ON BEHALF OF THE RESPONDENT:

ALLAN H. BELL, ESQUIRE

IN BEHALF OF THE IMMIGRATION

AND NATURALIZATION SERVICE:

BERNARD W. BRAUN, ESQUIRE ]

ORDER i

Oral decision entered

denying respondent’s application for

suspension of deportation.

Oral decision entered

denying the respondent’s application for

political asylum and withholding of

deportation.

Oral decision entered

denying the respondent’s application for a

waiver under Section of the I&N Act.

_X Oral decision ordering respondent, Pupi

White, deported entered Western Samoa.

A Oral decision entered granting voluntary

if respondents Masautele White, Hellen White

and Henry White depart by June 19, 1985,

thereafter order of deportation entered

designating Western Samoa.

__.. Appeal reserved by _X_ respondent ____

INS.

__.. Appeal time expired March 29, 1985 No

appeal filed.

Decision final.

Oo. John Brahos

Immigration Judge

Entered: March 19, 1985

Place

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 92-2949

PUPI WHITE,

Petition for

Review from

Petitioner,

-versus-~ the Board of

Immigration

IMMIGRATION AND NATURALIZATION Appeals

SERVICE,

Respondent.

The petition for rehearing by the panel

is denied.

December 9, 1993

Order entered at the Direction of the Court

/s Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

STATUTES, REGULATIONS AND RULES

STATUTES

5 U.S.C. § 704. Actions reviewable.

Except as otherwise expressly required

by statute, agency action otherwise final for

the purposes of this section whether or not

there has been presented or determined an

application for a declaratory order, for any

form of reconsideration, or, unless the

agency otherwise requires by rule and

provides that the section meanwhile is

inoperative, for an appeal to superior agency

authority.

8 U.S.C. § 1105a. Judicial review of orders

sf deportation and exclusion [INA § 106]

(a) Exclusiveness of procedure

The procedure prescribed by, and

all the provisions of chapter 158 of Title

28, shall apply to, and shall be the sole and

exclusive procedure for, the judicial review

of all final orders of deportation heretofore |

or hereafter made against aliens within the

United States pursuant to administrative

proceedings under section 1252(b) of this

title or comparable provisions of any prior

Act, except that--

(1) Time for filing petition

a petition for review may be

filed not later than 90 days after the date

of the issuance of the final deportation

order, or, in the case of an alien convicted

of an aggravated felony, not later than 30

days after the issuance of such order;

8 U.S.C. § 1105a (a) (6), Section 106 (a) (6)

of the Immigration and Nationality Act, as

amended

(6) Consolidation

whenever a petitioner seeks

review of an order under this section, any

review sought with respect to a motion to

reopen or reconsider such an order shall be

consolidated with review of the order

28 U.S.C. § 1254. Courts of appeals;

certiorari; certified questions.

Cases in the courts of appeals may be

received by the Supreme Court by the

following methods:

(1) By writ of certiorari granted

upon the petition of any party to any civil

or criminal case, before or after rendition

of judgment or decree.

REGULATIONS

8 C.F.R. § 3.2 Reopening or reconsideration.

The Board may on its own motion reopen

Or reconsider any case in which it has

rendered a decision. Reopening or

reconsideration of any case in which a

decision has been made by the Board, whether

requested by the Commissioner or any other

duly authorized officer of the Service, or by

the party affected by the decision, shall be

only upon written notice to the Board.

Motions 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; nor shall any motion reopen

for the purpose of affording the alien an

opportunity to apply for any form of

discretionary relief be granted if it appears

that the alien’s right to apply for such

relief was fully explained to him and an

opportunity to apply therefor was afforded

him at the former hearing unless the relief

is sought on the basis of circumstances which

have arisen subsequent to the hearing. A

motion to reopen or a motion to reconsider

shall not be made by or in behalf of a person

who is the subject of deportation proceedings

subsequent to this departure from the United

States. Any departure from the United States

of a person who is the subject of deportation

proceedings occurring after the making of a

motion to reopen or a motion to reconsider

shall constitute a withdrawal of such motion.

For the purpose of this section, any final

decision made by the Commissioner prior to

the effective date of the Act with respect to

any case within classes of cases enumerated

in § 3.1 (b)(1), (2), (3), (4) or (5) shall

be regarded as a decision of the Board.

8 C.F.R. § 3.8 Motion to reopen or motion to

reconsider.

(a) Form. Motions to reopen and

motions to reconsider shall be submitted in

triplicate. A request for oral argument, if

desired, shall be incorporated in the motion.

The Board in its discretion may grant or deny

Oral argument. Motions to reopen shall state

the new facts to be proved at the reopened

hearing and shall be supported by affidavits

or other evidentiary material. Motion to

reconsider shall state the reasons upon which

the motion is based and shall be supported by

such precedent decisions as are pertinent.

In any case in which a deportation order is

in effect, there shall be included in the

motion to reopen or reconsider such order a

statement by or on behalf of the moving party

declaring whether the subject of the

deportation order is also the subject of any

pending criminal proceeding under section

242(e) of the Act, and, if so, the current

status of that proceeding. If the motion to

reopen or reconsider is for the purpose of

seeking discretionary relief, there shall be

included in the motion a statement by or on

behalf of the moving party declaring whether

the alien for whose relief the motion is

filed is subject to any pending criminal

prosecution and, if so, the nature and

current status of that prosecution. Motions

to reopen or reconsider shall state whether

the validity of the deportation order has

been or is the subject of any judicial

proceeding and, if so, the nature and date

thereof, the court in which such proceeding

took place or is pending, and its results or

Status. The filing of a motion to reopen or

a motion to reconsider shall not serve to

Stay the execution of any decision made in

the case. Execution of such decision shall

proceed unless a stay of execution is

specifically granted by the Board or the

officer of the Service having administrative

jurisdiction over the case.

8 C.F.R. § 103.5 Reopening or

reconsideration.

(a) Motions to reopen or reconsider in

other than special agricultural worker and

legalization cases.--(1) When filed by

affected party.--

(iv) Effect of motion or

subsequent application or petition. Unless

the Service directs otherwise, the filing of

a motion to reopen or reconsider or of a

subsequent application for petition does not

stay the execution of any decision in a case

or extend a previously set departure date.

RULES

Fed.R.App.P. 40. Petition for Rehearing.

(a) Time for filing; Content; Answer;

Action by Court if Granted. A petition for

rehearing may be filed within 14 days after

entry of judgment unless the time is

shortened or enlarged by order or by local

rule. The petition shall state with

particularity the points of law or fact which

in the opinion of the petitioner the court

has overlooked or misapprehended and shall

contain such argument in support of the

petition as the petitioner desires to

present. Oral argument in support of the

petition will not be permitted. No answer to

1 petition for rehearing will be received

inless requested by the court, Dut a petition

for rehearing will ordinarily not be granted

in absence of such a request. If a petition

for rehearing is granted the court may make

a final disposition of the cause without

reargument or may restore it to the calendar

for reargument or resubmission or make such

other orders as are deemed appropriate under

the circumstances of the particular case.

Supreme Court Rule 13. Review on Certiorari;

Time for Petitioning.

-l. A petition for a writ of certiorari

to review a judgment in any care, civil or

‘criminal, entered by a state court of last

resort, a United States court of appeals, or

the United States Court of Military Appeals

shall be deemed in time when it is filed with

the Clerk of this Court within 90 days after

the entry of judgment. A petition for writ

of certiorari seeking review of a judgment of

a lower state court which is subject to

discretionary review by the state court of

last resort shall be deemed in time when it

is filed with the Clerk within 90 days after

the entry of the order denying discretionary

review.

-4. The time for filing a petition for

writ of certiorari runs from the date the

judgment or decree sought to be reviewed is

rendered, and.not from the date of the

issuance of the mandate (or its equivalent

under local practice). However, if a

petition for rehearing is timely filed in the

lower court by any party in the case, the

time for filing the petition for writ of

certiorari for all parties (whether or not

they requested rehearing) runs from the date

of the denial of the petition for rehearing

or the entry of a subsequent judgment. A

rehearing in banc pursuant to Rule 35(b),

Federal Rules of Appellate Procedure, is not

a petition for rehearing within meaning of

this rule.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.