Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-1995

Huang v INS
Precedential or Non-Precedential:

Docket 94-3187




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Recommended Citation
"Huang v INS" (1995). 1995 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/41


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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                        N0. 94-3187


           CHUNG CHIU HUANG; CHUANG LI-CHUN HUANG;
                  HUA HUANG and YAO HUANG,

                        Petitioners

                             v.

           IMMIGRATION & NATURALIZATION SERVICE,

                         Respondent



          Petition for Review of an Order of the
            Board of Immigration Appeals of the
          Immigration and Naturalization Service
INS Nos. A72-188-520, A72-188-521, A72-363-558, A72-363-559


                  Argued October 25, 1994

 BEFORE:   STAPLETON, HUTCHINSON and GARTH, Circuit Judges

             (Opinion Filed February 10, 1995)




                      Frank W. Hunger
                      Assistant Attorney General
                      Civil Division

                      David J. Kline
                      Richard M. Evans (Argued)
                      Carl H. McIntyre, Jr.
                      U.S. Department of Justice
                      Office of Immigration Litigation
                      Ben Franklin Station
                      P.O. Box 878
                      Washington, D.C. 20044
Attorneys for Respondent
                           Daniel W. Ernsberger (Argued)
                           Behrend & Ernsberger
                           2400 Grant Building
                           Pittsburgh, PA 15129

                           Attorneys for Petitioners




                         OPINION OF THE COURT




STAPLETON, Circuit Judge:


          Chung Chiu Huang and his family are citizens of Taiwan.

They came to the United States as visitors and remained beyond

the authorized period.     An Immigration Judge found them

deportable.   The Huangs' counsel attempted to appeal this

decision, but the appeals were dismissed by the Board of

Immigration Appeals as untimely.       We will grant the Huangs'

petitions for review.



                                  I.

          The Immigration Judge issued a document memorializing

his decision at the close of the hearing in Pittsburgh,

Pennsylvania, on May 4, 1993.    The document reflected that it was

being issued by the Executive Office for Immigration Review, 536

Clark Street, Chicago, Illinois.       Huangs' counsel prepared

notices of appeal and attempted to file them in the local service

office of the Immigration and Naturalization Service on

Wednesday, May 12, 1993.    The clerk date-stamped the notices of
appeal, accepted the filing fees, and issued receipts for the

fees.   The clerk declined to retain the notices of appeal,

however, and instructed counsel to file them in the office of the

Immigration Judge in Chicago.

             Counsel mailed the notices, fee receipts, and

certificates of service on opposing counsel to the office of the

Immigration Judge by certified mail on May 12, 1993.      These

documents were received in Chicago on Monday, May 17, 1993.



                                  II.

             Part 3 of the Justice Department's regulations on

Aliens and Nationality spells out the jurisdiction of the Board

of Immigration Appeals and how one appeals to that Board from a

decision of an Immigration Judge.       8 C.F.R. §§ 3.0-.40 (1993).

Section 3.1(b) gives the Board appellate jurisdiction over

various decisions of Immigration Judges, including deportation

decisions.    Section 3.3(a) provides in part:

             § 3.3   Notice of appeal

               A party affected by a decision who is
          entitled under this chapter to appeal to the
          Board shall be given notice of his or her
          right to appeal. An appeal shall be taken by
          filing Notice of Appeal Form I-290A in
          triplicate with the Service office or Office
          of the Immigration Judge having
          administrative jurisdiction over the case,
          within the time specified in the governing
          sections of this chapter. . . .


Section 3.38 then goes on to provide:
             § 3.38   Appeals.

                  (a) Decisions of Immigration Judges may
             be appealed to the Board of Immigration
             Appeals as authorized by 8 C.F.R. 3.1(b).

                  (b) The notice of appeal of the decision
             shall be filed with the Office of the
             Immigration Judge having administrative
             control over the Record of Proceeding within
             ten (10) calendar days after service of the
             decision. Time will be 13 days if mailed.
             If the final date for filing falls on a
             Saturday, Sunday, or legal holiday, this
             appeal time shall be extended to the next
             business day.


8 C.F.R. § 3.38(a), (b) (emphasis supplied).

             Consistent with these regulations, the preprinted form

given to the Huangs by the Immigration Judge on May 4, 1993,

contained the following instructions:
          This decision is final unless an appeal is
          taken to the Board of Immigration Appeals by
          returning to this office on or before 5-14-93
          three copies of Form EOIR-26 Notice of
          Appeal, properly executed, together with a
          fee of one hundred ten dollars ($110.00).


App. 147.1
                                 * * * *

             Filing. This notice of appeal with a
             Certificate of Service on the opposing party
             must be filed with the Office of Immigration
             Judge having administrative control over the
             Record of Proceeding within 10 calendar days
             (or 13 calendar days if mailed) after service
             of the decision of the Immigration Judge.




1
 . Mr. Huang's copy of the document had "5-14-93" inserted in
handwriting. The other petitioners' copies contained a blank
space where a date could be inserted.
          The Notice of Appeal is not to be forwarded
          directly to the Board of Immigration Appeals
          (BIA).


App. 138 (emphasis supplied).



                                 III.

             The Board of Immigration Appeals, in both its original

decision and its decision on reconsideration, acknowledged that

the notices of appeal were mailed to the Chicago Office of the

Immigration Judge, that the notices were received by that office

on May 17, 1993, thirteen days after the decision appealed, and

that the controlling regulation is 8 C.F.R. § 3.38(b) (1993).       It

nevertheless concluded that the notices were untimely.

             The decisions of the Board acknowledge no ambiguity in

§ 3.38(b).    They read the sentence we have emphasized in the

above quotation to mean that the "time will be 13 days" if the
decision of the Immigration Judge is mailed, not if the notice of

appeal is mailed.    In its brief before us, however, the Service

acknowledges, as we think in fairness it must, that this portion
of § 3.38(b) is ambiguous if read alone.

          We view § 3.38(b) as at least ambiguous.    Moreover, we

believe any reasonable lawyer perceiving an ambiguity in that

section would regard that ambiguity as being clearly resolved by

the Service's own preprinted form instructions regarding the time

for filing.    The parenthetical "(or 13 calendar days if mailed)"

cannot reasonably be read in context as referring to the mailing

of the decision rather than the mailing of the notice.
          While we might be willing to give some deference to the

Board's reading of the Justice Department's regulations were it

not for the advice on the preprinted form, we cannot condone its

decision in this case.   The agency2 cannot advise participants in

its process to read an ambiguous rule one way and, after they

have acted, subject them to a more stringent requirement.     Vlaicu

v. INS, 

, 760 (9th Cir. 1993) (finding 8 C.F.R.

§ 3.38(b) and a related notice misleading and holding that where

"a party is 'misled by the court,' an appellate tribunal [has]

jurisdiction to hear an otherwise untimely appeal"); Shamsi v.

INS, 

(9th Cir. 1993) (same where regulations and

notice are misleading as to place for filing notice of appeal

from a decision of an Immigration Judge).

          We have rejected the Board's suggestion that 8 C.F.R.

§ 242.21 somehow renders § 3.38(b) unambiguous.   That regulation,

which is a portion of Part 242 of Title 8, provides in part:
               (a) Pursuant to part 3 of this chapter
          an appeal shall lie from a decision of a
          special inquiry officer under this part to
          the Board of Immigration Appeals. An appeal
          shall be taken within 10 days after the
          mailing of a written decision, or the stating
          of an oral decision, or the service of a
          summary decision on Form I-38 or Form I-39.
          The reasons for the appeal shall be stated
          briefly in the Notice of Appeal, Form I-290A;
          failure to do so may constitute a ground for
          dismissal of the appeal by the Board. When
          service of the decision is made by mail, as
          authorized by this section, 3 days shall be


2
 . The Executive Office for Immigration Review is "responsible
for the general supervision of the Board of Immigration Appeals.
. . ." 8 C.F.R. § 3.0.
          added to the period prescribed for the taking
          of an appeal.


8 C.F.R. § 242.21 (emphasis supplied).   While we agree with the

Board that the emphasized sentence extends the period for filing

a notice of appeal by three days where the Immigration Judge has

served the decision by mail, we cannot agree that this clears up

the ambiguity in § 3.38(b).   The two sections can be read

together to provide two distinct extensions and, in the context

of the instructions on the preprinted form, we believe a

reasonable practitioner, as well as a reasonable lay person,

would so read them.3

          The petitions for review will be granted, and the Board

will be instructed to consider the Huangs' appeals on their

merits.




3
 . The Service has also argued before us that the Huangs waived
the issue we find dispositive by not raising it before the Board.
Additionally, the Service has contended that the Immigration
Judge's oral advice to the Huangs concerning the filing of an
appeal cured any ambiguity. We find neither argument persuasive.