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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1141

## Text

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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

ee

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

9

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.

10

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.

11

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

12

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

13

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

14

a

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

15

ee

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).

16

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

17

PD Atma te, AT

Niccccniemmmammeeieieemeiiiiasiial

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

18

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,

19

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

20

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

21

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

22

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

23

:
{
: =
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

1

| 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.

24

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

25

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

26

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

27

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

28

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

29

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).

30

Respectfully submitted,
ALLAN H. BELL & ASSOCIATES

G4

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

31

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

32

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]

33

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).

34

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

35

vat
ia} .

ae

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.
I.

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

36

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

37

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.

38

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

39

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.

40

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).

41

—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.

42

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

43

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

44

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

45

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

46

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

47

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

48

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

49

¥

y

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

50

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,

51

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

52

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

53

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

54

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).

55

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.

56

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

57

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

58

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

responsible for the untimely filing of his ©

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

59

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.

60

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. |
Section 1251(a)(9)] - Failure to ©
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 _

61

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

62

argument before this Board is denied.

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

To begin with, we do not believe the”

adult male respondent (the "respondent") was ©

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.

63

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

64

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 —

immigration judge rendered his decision in ©
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).

65

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

66

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).

67

Ne eerie,

St ree de ee

returned to the Office of the

Judge with further action.

Immigration

FOR THE BOARD

68

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.

69

ae

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

70

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 92-2949
PUPI WHITE,

Petition for
Review from

Petitioner,

ee

-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

71

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

72

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

73

L

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

74

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

75

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

76

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

77

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.--

78

(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

79

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

80

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

81

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.

82

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1204%3A1. Public record. Not legal advice.