Filed: Jan. 27, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 1-27-1995 Green v INS Precedential or Non-Precedential: Docket 94-3193 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Green v INS" (1995). 1995 Decisions. Paper 25. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/25 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the T
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 1-27-1995 Green v INS Precedential or Non-Precedential: Docket 94-3193 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Green v INS" (1995). 1995 Decisions. Paper 25. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/25 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Th..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-27-1995
Green v INS
Precedential or Non-Precedential:
Docket 94-3193
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Green v INS" (1995). 1995 Decisions. Paper 25.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/25
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO. 94-3193
_______________
BIBI FAZALLAH GREEN
Petitioner
v.
IMMIGRATION AND NATURALIZATION SERVICE
Respondent
_______________
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
(No. A23 346 457)
_______________
Argued October 31, 1994
BEFORE: GREENBERG and McKEE, Circuit Judges, and
POLLAK, District Judge*
(Filed: January 27, 1995)
Robert S. Whitehill (argued)
Deasy & Whitehill
1906 Law & Finance Building
Pittsburgh, PA 15219
Attorney for Petitioner
Jane Gomez (argued)
David J. Kline
Carl H. McIntyre, Jr.
Alice M. King
United States Department of
Justice
Office of Immigration Litigation
Post Office Box 878
*
. The Honorable Louis H. Pollak, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
Washington, DC 20044
Attorneys for Respondent
______________
OPINION OF THE COURT
_____________
POLLAK, District Judge.
This case is about the negligent failure of an attorney
representing a deportable alien -- a woman who has lived in the
United States for twenty-five years and has a husband and two
children who are American citizens -- to file with the
immigration judge in timely fashion an application for
discretionary relief that, if found meritorious, would have saved
his client from deportation. Because of the attorney's lapse,
the immigration judge (1) ruled that the intended application for
discretionary relief had been abandoned, and (2) ordered the
alien deported. On appeal to the Board of Immigration Appeals
(Board), the alien's attorney sought to persuade the Board that
his client should not suffer disadvantage because of his
negligence; but the Board upheld the decision of the immigration
judge. On petition for review of the decision of the Board the
attorney for the alien repeats and elaborates his plea of mea
culpa. The attorney contends that the crucial ruling of the
immigration judge which the Board sustained -- the ruling that
the attorney's failure to file the intended application for
discretionary relief in timely fashion constituted an abandonment
of the application -- worked a denial of due process to his
client, since the immigration judge had not warned the attorney
of the potential adverse consequences of a failure to file on
time. The attorney also challenges the ruling of the immigration
judge, sustained by the Board, as an abuse of discretion. We
find no error in the decision of the Board and we therefore deny
the petition for review.
I.
In January of 1993 respondent Immigration and
Naturalization Service (INS) served on petitioner Bibi Fazallah
Green -- a citizen of Guyana who came to the United States as a
student in 1969 and became a permanent resident in 1983 -- an
order to show cause why she should not be deported. According to
the INS order to show cause, Green had twice been convicted of
possession of a controlled substance: both convictions were in a
Pennsylvania state court, the first was in 1990, the second in
1992. The INS alleged that these convictions made Ms. Green
subject to deportation under two distinct provisions of the
Immigration and Nationality Act of 1952 ("the Act"). Section
241(a)(2)(B)(i) of the Act provides that, "upon the order of the
Attorney General," "[a]ny alien who at any time after entry has
been convicted of a violation of . . . any law or regulation of a
State . . . relating to a controlled substance . . . other than a
single offense involving possession for one's own use of 30 grams
or less of marijuana . . . is deportable."1 And section
241(a)(2)(A)(iii) of the Act provides that, "upon the order of
the Attorney General," "[a]ny alien who is convicted of an
aggravated felony at any time after entry is deportable."2
1
. Section 241(a)(2)(B)(i), codified at 8 U.S.C.
§ 1251(a)(2)(B)(i), provides in full as follows:
(a) Classes of deportable aliens
Any alien (including an alien crewman) in the United
States shall, upon the order of the Attorney General, be
deported if the alien is within one or more of the
following classes of deportable aliens:
* * * * * *
(2) Criminal offenses
* * * * * *
(B) Controlled substances
(i) Conviction
Any alien who at any time after entry has
been convicted of a violation of (or a
conspiracy or attempt to violate) any law or
regulation of a State, the United States, or
a foreign country relating to a controlled
substance (as defined in section 802 of Title
21), other than a single offense involving
possession for one's own use of 30 grams or
less of marijuana, is deportable.
2
. Section 241(a)(2)(A)(iii), codified at 8 U.S.C.
§ 1251(a)(2)(A)(iii), includes among the category of "criminal
offenses" rendering an alien deportable:
Aggravated felony
Any alien who is convicted of an
aggravated felony at any time after
entry is deportable.
Ms. Green retained Robert S. Whitehill, a Pittsburgh
attorney, to represent her before the INS. In a telephone status
conference conducted by Immigration Judge Fujimoto on August 18,
1993, Mr. Whitehill disputed Ms. Green's deportability under the
aggravated felony provision (section 241(a)(2)(A)(iii)) but
conceded deportability under the possession-of-a-controlled-
substance provision (section 241(a)(2)(B)(i)). At the same time,
Mr. Whitehill advised Judge Fujimoto and INS District Counsel
Richard Sharkey that Ms. Green would seek to avoid deportation by
applying for a waiver of inadmissibility pursuant to section
(..continued)
Section 101(a)(43), codified at 8 U.S.C. § 1101(a)(43),
provides:
The term, "aggravated felony" means murder,
any illicit trafficking in any controlled
substance (as defined in section 802 of Title
21), including any drug trafficking crime as
defined in section 924(c)(2) of Title 18, or
any illicit trafficking in any firearms or
destructive devices as defined in section 921
of such title, any offense described in
section 1956 of Title 18 (relating to
laundering of monetary instruments), or any
crime of violence (as defined in section 16
of Title 18, not including a purely political
offense) for which the term of imprisonment
imposed (regardless of any suspension of such
imprisonment) is at least 5 years, or any
attempt or conspiracy to commit any such act.
Such term applies to offenses described in
the previous sentence whether in violation of
Federal or State law and also applies to
offenses described in the previous sentence
in violation of foreign law for which the
term of imprisonment was completed within the
previous 15 years.
212(c) of the Act.3 The INS, for its part, reasserted the
contention that Ms. Green was subject to deportation under the
3
. Section 212(c), codified at 8 U.S.C. § 1182(c), provides:
Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad
voluntarily and not under an order of
deportation, and who are returning to a
lawful unrelinquished domicile of seven
consecutive years, may be admitted in the
discretion of the Attorney General without
regard to the provisions of subsection (a)
(other than paragraphs (d) and (9)(C)).
Nothing contained in this subsection shall
limit the authority of the Attorney General
to exercise the discretion vested in him
under section 211(b). The first sentence of
this subsection shall not apply to an alien
who has been convicted of one or more
aggravated felonies and has served for such
felony or felonies a term of imprisonment of
at least 5 years.
In Lozada v. I.N.S., 857 F.2d 10 (1st Cir. 1988), the
petitioner was, like Ms. Green, a permanent resident alien whom
the INS viewed as deportable and who hoped to avoid deportation
via a section 212(c) application. The First Circuit explained,
in a footnote,
id. at 11 n.1, the pertinence of what would appear
to be quite inapposite statutory language:
Petitioner would seem ineligible for relief
under the language of section 212(c), which
applies on its face only to resident aliens
who have travelled abroad temporarily and are
excludable upon return to the United States.
However, in Francis v. INS, 532 F.2d 268 (2d
Cir. 1976), the court ruled that Congress
could not constitutionally confine this
possible relief to aliens who leave the
country. After Francis, the Board of
Immigration Appeals held that section 212(c)
relief also is available in deportation
proceedings. Matter of Silva, 16 I & N Dec.
26, 30 (BIA 1976).
aggravated felony provision as well as the possession-of-a-
controlled-substance provision.
At the close of the conference, Judge Fujimoto set
deadlines for future proceedings. With respect to the aggravated
felony issue, Judge Fujimoto postponed findings pending
submission by Mr. Sharkey of documents establishing with
precision the state charges pursuant to which Ms. Green was
convicted; an October 1, 1993 deadline was set for the filing of
these materials. Judge Fujimoto then addressed Mr. Whitehill
(A.R. 107-08):
JUDGE TO MR. WHITEHILL
Q. You've already conceded deportability on the
one charge, Mr. Whitehill, so as relief you're
going to be requesting 212(c) waiver. Correct?
A. Sure are.
Q. All right. October 1st is the call-up date
for that as well. And, then we'll hold a hearing,
assuming the application has been filed, on
November 4th, 1993, 9:00 a.m., in Pittsburgh.
And, we'll send you a written notice of that
hearing date.
JUDGE TO BOTH COUNSEL
Q. Is that acceptable, then, to both sides?
JUDGE TO MR. SHARKEY
Q. [sic] Yes, sir.
JUDGE TO MR. WHITEHILL
A. To the alien, it is acceptable.
Q. All right. Let me again run through it very
briefly. I've -- you've conceded deportability on
the controlled substance. Prior to rendering a
finding on the aggravated felony charge, I'm
asking the Service to submit the indictment and
the state statute under which the respondent was
convicted. Mr. Whitehill, you'll be submitting
your 212(c) application on or before October 1st.
If you wanted to make an argument with regards to
why she is not deportable as an aggravated felon,
please also have that argument tendered on or
before that date. We'll then go forward with
individual calendar hearing November 4th, 9:00
a.m. We'll allocate the entire morning, no
interpreter required.
As of October 1, 1993, the date specified by Judge
Fujimoto on August 18, Mr. Whitehill had filed neither a § 212(c)
"call-up" application nor a motion to extend the time to file.
Twenty-seven days later there had still been no filing by Mr.
Whitehill. On that day -- October 28, 1993 -- Judge Fujimoto
filed the following decision (A.R. 89-90):
DECISION OF THE IMMIGRATION JUDGE
The respondent is a female native and
citizen of Guyana [*] who was admitted to the
United States on August 22, 1969 as a
nonimmigrant student. On February 24, 1983,
her status was adjusted to that of a lawful
permanent resident. Deportation proceedings
were commenced against her through the
issuance of an Order to Show Cause, charging
her with deportability under the above-
captioned sections of the Immigration &
Nationality Act.
At her hearing, the respondent, through
counsel, admitted allegations 1 and 3 through
7 contained in the Order to Show Cause and
conceded deportability under Section
241(a)(2)(B)(i), relating to having been
convicted of a controlled substance
violation. [**]
The respondent requested leave to file an
application for a waiver of inadmissibility
under Section 212(c) of the Act and was given
a call-up date of October 1, 1993, for the
filing of the application.
To date, no application has been filed, nor
has any request for an extension of time been
received. It is well settled that
applications for benefits under the
Immigration & Nationality Act may be properly
denied as abandoned where the alien fails to
timely file them. See Matter of Jean, 17 I &
N Dec. 100 (BIA 1979); Matter of Jaliawala,
14 I & N Dec. 664 (BIA 1974); Matter of
Pearson, 13 I & N Dec. 152 (BIA 1969); Matter
of Nafi, 19 I & N Dec. 430 (BIA 1987).
Accordingly, the following orders will be
entered:
ORDER: The respondent's request to apply for
a waiver of inadmissibility under Section
212(c) of the Act is DENIED for lack of
prosecution.
IT IS FURTHER ORDERED that the respondent be
deported from the United States to Guyana
under Section 241(a)(2)(B)(i) of the Act.
DATE: October 28, 1993 James R. Fujimoto
Immigration Judge
_______________
[*] The respondent asserted that she is a native and
citizen of "British Guiana (British Guyana)". I take
note of the fact that "Guyana" and "British Guiana
(British Guyana)" refer to the same country [see
Webster's II New Riverside Dictionary] and therefore
find that allegation 2 has been sustained.
[**] In view of respondent's concession of
deportability under Section 241(a)(2)(B)(i) and
pretermission of her application, I do not reach the
issue of her deportability under Section
241(a)(2)(A)(iii).
The next day -- October 29, 1993 -- Mr. Whitehill sent
Judge Fujimoto a motion to reopen. The motion stated, in
pertinent part (A.R. 53-54):
8. On August 18, 1993, the Court
ordered counsel to file for 212(c) relief on
or before October 1, 1993.
9. Solely through inadvertence of
counsel, the request for relief was not
timely filed.
10. On October 28, 1993, at
approximately 10:00 a.m. the Office of the
Court advised undersigned counsel
telephonically that an Order was being issued
by the Court, Fujimoto, J., to deport the
alien, without a hearing, preserving rights
of appeal, for failure to prosecute the
relief sought under 212(c).
11. Counsel has prepared this motion and
the attached I-191 which was not able to be
receipted on October 28, 1993, but will be
filed October 29, 1993. The fee receipt will
be forwarded to the Court.
12. It is respectfully submitted that the
Court's order, if properly understood by
undersigned counsel, denies the alien's right
to due process of law.
13. An order of deportation without right
of trial creates a human tragedy which may be
able to be avoided.
14. By virtue of the Court's order and
without a hearing to assert her grounds for
relief, the alien, her children and her
husband, all U.S. citizens, may be forced to
suffer the consequences of the alien's
deportation based solely on counsel's failure
to timely file the formal pleading, an I-191.
The motion to reopen was not formally acted on. On
November 4, 1993, Mr. Whitehill sent Judge Fujimoto a notice of
appeal to the Board with a copy to INS District Counsel Sharkey.
On March 24, 1994, the Board issued an opinion
affirming Judge Fujimoto's decision. The central holding of the
Board was as follows (A.R. 3-4):
On appeal, the respondent contends that the
late filing of her application was due to the
inadvertence of her counsel. She asserts
that the immigration judge's deportation
order is an error of law in that it deprived
her of her due process rights to have her
application for relief considered and an
abuse of discretion since the late filing is
excusable.
* * * * * *
[A]n alien seeking reopening of deportation
proceedings in order to file an application
for relief from deportation must show
reasonable cause for her failure to timely
file the application. See 8 C.F.R. § 3.29
(if an application is not filed within the
time set by the immigration judge, the
opportunity to file that application shall be
deemed waived); Matter of R-R-, Interim
Decision 3182 (BIA 1992).
The respondent has not shown reasonable
cause for failing to timely file an
application. See Matter of R-R-, supra.
Generally, litigants are bound by the conduct
of their representatives. See Garcia v. INS,
___ F.3d ___ (No. 91-2113) (1st Cir. October
22, 1993); Magallanes-Damian v. INS, 783 F.2d
931 (9th Cir. 1986); Matter of Velasquez, 19
I&N Dec. 377 (BIA 1986). Deadlines set for
the filing of applications for relief often
are breached by attorneys and would be
meaningless if counsel's mistakes in this
regard were excused every time such action
allegedly prejudiced a client. Garcia v.
INS, supra.
We therefore conclude that because the
respondent has failed to show reasonable
cause for failing to timely file the Form I-
191 application, the case will not be
remanded to the immigration judge.
ORDER: The decision of the immigration
judge is affirmed.
II.
The petition for review focuses on the Board's reliance
on 8 C.F.R. § 3.29 (hereinafter "§ 3.29"), an INS procedural
regulation which provides as follows:
The Immigration Judge may set and extend
time limits for the filing of applications
and related documents and responses thereto,
if any. If an application or document is not
filed within the time set by the Immigration
Judge, the opportunity to file that
application or document shall be deemed
waived.4
The petition for review does not quarrel with the
propriety of vesting in immigration judges, by administrative
regulation, the authority to "set . . . time limits for the
filing of applications." Rather, the petition for review takes
exception to the fact that Judge Fujimoto did not expressly
advise Mr. Whitehill that failure to file a § 212(c) application
4
. As of 1993, § 3.29 had been renumbered as § 3.31(c), 8 C.F.R.
§ 3.31(c). But since the Board, in its opinion, referred to the
regulation as § 3.29, we will follow that usage in this opinion.
on Ms. Green's behalf in conformity with the timetable announced
by the Judge could result in a judicial determination, pursuant
to § 3.29, that "the opportunity to file that application . . .
shall be deemed waived." Mr. Whitehill's brief on behalf of
petitioner Green argues that Judge Fujimoto was obligated to
"make clear the possible draconian consequences of failure to
timely file." Brief of Appellant [sic] at 13. Because Judge
Fujimoto gave no warning of the "possible draconian
consequences," it is contended that Judge Fujimoto's ruling --
that Ms. Green's expected § 212(c) application had been abandoned
and that, in consequence, Ms. Green was to be deported --
constituted a denial of due process, or, in the alternative, an
abuse of discretion. We now address these contentions.
(A) Due Process
In part I of this opinion, which presents the
procedural history of this case, we have set forth the closing
portion of Judge Fujimoto's August 18, 1993, telephone conference
with Messrs. Sharkey and Whitehill. For the purposes of this
case, the crucial colloquy was the following:
Q. You've already conceded
deportability on the one charge, Mr.
Whitehill, so as relief you're going to
be requesting 212(c) waiver. Correct?
A. Sure are.
Q. All right. October 1st is the call-up date
for that as well. And, then we'll hold a hearing,
assuming the application has been filed, on
November 4th, 1993, 9:00 a.m., in Pittsburgh.
And, we'll send you a written notice of that
hearing date.
JUDGE TO BOTH COUNSEL
Q. Is that acceptable, then, to both sides?
JUDGE TO MR. SHARKEY
Q. [sic] Yes, sir.
JUDGE TO MR. WHITEHILL
A. To the alien, it is acceptable.
At whatever time Mr. Whitehill first became acquainted
with § 3.29, the INS regulation whose application he now
challenges, he would have learned not only that Judge Fujimoto
had formal authority to set an October 1, 1993, filing date for
the § 212(c) application but also that failure to file on time
would carry with it the probable consequence that "the
opportunity to file that application . . . shall be deemed
waived."
The record before this court is silent on when Mr.
Whitehill first learned about § 3.29 -- on or prior to August 18,
1993, when Judge Fujimoto set the schedule; or, perhaps, not
before October 1, 1993, the date the § 212(c) application was to
be filed; or, quite possibly, not before October 28, 1993, the
day Judge Fujimoto filed his opinion; or, equally possibly, not
before March 24, 1994, when the Board, in affirming Judge
Fujimoto's decision, filed an opinion expressly relying on the
challenged regulation. We will assume, arguendo, that Mr.
Whitehill was unaware of § 3.29 until after Judge Fujimoto's
decision.
The burden of Mr. Whitehill's argument is that Judge
Fujimoto was constitutionally foreclosed from applying § 3.29's
waiver principle because he had not given Mr. Whitehill express
warning that a failure to file on time could be the catalyst for
a finding that the proposed § 212(c) application -- which on this
record appears to have been the only potential mode of relief
from deportation for a client whose deportability Mr. Whitehill
had conceded on the record -- had been abandoned.5
We know of no authority for the notion that, as a
general matter, the due process clause imposes on courts an
obligation to advise lawyers personally of the potential adverse
consequences of not complying with procedural rules. To the
contrary, we think that, as a general proposition, the American
legal system presumes that lawyers who handle litigation have the
responsibility of familiarizing themselves with procedural rules
and the ways in which those rules are applied. And we see no
5
. The INS contends, inter alia, that in fact Judge Fujimoto
"did explicitly put petitioner and her counsel on notice that the
filing of her application for relief was a prerequisite to a
further hearing in her case." Brief for Respondent at 9-10.
Presumably the INS has in mind Judge Fujimoto's recital at the
August 18, 1993, telephone status conference that "October 1st is
the call-up date for that [the § 212(c) application] as well.
And, then we'll hold a hearing, assuming the application has been
filed, on November 4th, 1993, 9:00 a.m., in Pittsburgh." A.R.
107. The contention is not without some weight. However, given
our disposition of the case, we find it unnecessary to determine
whether the Judge's recital adequately conveyed the thought that
the filing of a § 212(c) application on time was a necessary
predicate for a hearing at which Mr. Whitehill could present the
case for avoidance of deportation.
reason to suppose that this general proposition is without
application to the particular sorts of procedural rules -- those
that govern the timing of various phases of litigation -- at
issue in this case. We note that some of the rules that govern
timing incorporate recitals, akin to that in § 3.29, as to the
consequences of non-compliance, but that others do not. An
example of the former sort of rule is Rule 13 of the Rules of the
Supreme Court: Rule 13 provides that a petition for certiorari
to review a judgment of a court of appeals, or of "a state court
of last resort," or of the Court of Military Appeals, must be
filed within ninety days of the entry of the judgment, and that
one of the Justices may extend the time for no more than sixty
days; and the rule further provides: "The Clerk will refuse to
receive any petition for a writ of certiorari which is
jurisdictionally out of time." An example of the latter sort of
rule is Rule 13(a) of the Federal Rules of Appellate Procedure:
Rule 13(a), which governs appeals from the Tax Court, provides
that "[r]eview . . . shall be obtained by filing a notice of
appeal with the clerk of the Tax Court within 90 days after the
decision of the Tax Court is entered," but the rule is silent as
to the consequences of failing to file on time. No case that has
come to our attention gives ground for the inference that either
of the quoted rules is, from the perspective of the Fifth
Amendment, unenforceable in the absence of an express admonition
by a clerk of court, or by a judge or by one of the Justices,
that the rule means what it says.
It is contended, however, that § 3.29 is a special
case. Mr. Whitehill's brief points to a paragraph in a manual of
guidance for immigration judges referred to as the "Immigration
Judge's Benchbook" (Benchbook) -- a paragraph pursuant to which,
so it is urged, Judge Fujimoto should have given Mr. Whitehill an
express "admonishment" with respect to the consequences of a
failure to conform to the filing date the Judge had announced.
The paragraph in question is as follows:
Impress the importance of filing briefs and
relief applications on a timely basis. Those
who fail to do so can be quickly cured of the
practice if you summon them to court for an
interim hearing, take pleadings and set up a
filing schedule with an admonishment. Such
admonishment should state that if the
application is not timely filed, you presume
that it will not be forthcoming and you will
enter a written decision cancelling the IC
trial date and ordering deportation or
voluntary departure, as appropriate.6
The INS contends that, since the Benchbook's first
appearance in this case was in Mr. Whitehill's brief in this
court, the Benchbook is not properly before us.7 The INS also
contends that -- assuming the Benchbook can be considered by us
6
. Benchbook (pre-1989 version), § III, ¶ B.2.f.(8). Attachment
B at III-17, to letter of Oct. 25, 1994, from Jane Gomez, Esq.,
Attorney, Office of Immigration Litigation, Civil Division,
Department of Justice, to Ms. Pamela Lester, Deputy Clerk of this
court.
7
. The INS argues that we should not consider the Benchbook for
two, related, reasons: first, the Benchbook was not made part of
-- Mr. Whitehill's reliance on the "admonishment" language is
misplaced, for the reason that, although the language appeared in
an early version of the Benchbook, it had been dropped from the
version of the Benchbook which would have been consulted by
immigration judges during the summer and fall of 1993 when Ms.
Green's case was before Judge Fujimoto.8 We find it unnecessary
to determine whether the Benchbook, in any of its versions, can
properly be relied on here, because, even if the "admonishment"
language was included in a version of the Benchbook which Judge
Fujimoto might have had occasion to refer to in 1993, Mr.
Whitehill's reliance on that language is unavailing. The preface
to the Benchbook -- a preface bearing the signature of Chief
Immigration Judge William R. Robie -- recites that "[t]he
procedures outlined herein (that are not contained within
specific Operating Policies and Procedures memoranda) are not
binding on the Immigration Judges, and are set forth solely as
(..continued)
the administrative record, and, second, the Benchbook was not
relied upon by Mr. Whitehill before the Board.
8
. After Mr. Whitehill cited the Benchbook paragraph in his
brief in this court, we requested counsel to submit pertinent
portions of the Benchbook. The INS submission shows the quoted
paragraph to have been paragraph B.2.f. of a version of section
III of the "Benchbook" that antedated 1989; the counterpart
paragraph in the revised section III -- paragraph C.2.b.(6)(g) --
does not include the "admonishment" language. The INS represents
that the revised version was the one which was current in the
summer and fall of 1993. There was no further submission from
Mr. Whitehill.
practical suggestions for their consideration."9 Thus, even if
the "admonishment" paragraph was part of the Benchbook guidance
that Judge Fujimoto might have consulted in 1993, that guidance
was not binding on Judge Fujimoto. In short, the Benchbook had
no regulatory weight. A fortiori it had no constitutional
weight.
In sum, we find that the arguments advanced by Mr.
Whitehill fail to demonstrate that Ms. Green has been denied due
process of law.
(B) Abuse of Discretion
For the reasons stated we have rejected the contention
that the action of the Board, affirming the decision of Judge
Fujimoto, constituted a denial to Ms. Green of due process of
law. It is contended, in the alternative, that the action of the
Board constituted an abuse of discretion.
9
. 8 C.F.R. § 3.9 sets forth the principal duties of the Chief
Immigration Judge:
The Chief Immigration Judge shall be
responsible for the general supervision,
direction and scheduling of the Immigration
Judges in the conduct of the various programs
assigned to them. This shall include:
(a) Establishment of operational
policies;
(b) Evaluation of the performance of
Immigration Judge offices, making appropriate
reports and inspections and taking corrective
action where indicated.
The abuse-of-discretion claim covers the same ground as
the due process claim, and we find it no more persuasive. Judge
Fujimoto did not act unreasonably in ruling, on October 28, 1993,
that Mr. Whitehill's failure (a) to file a § 212(c) application
due twenty-seven days before, or (b) to request an extension of
time to file, worked an abandonment of the application. Nor did
the Board act unreasonably when, in reliance on § 3.29 and its
own settled jurisprudence, it affirmed Judge Fujimoto's ruling.
III.
In his submissions to the Board, and subsequently to
this court, Mr. Whitehill has not contended that his
representation of Ms. Green before Judge Fujimoto was so
inadequate as to constitute ineffective assistance of counsel.
Cf. Lozada v. I.N.S., 857 F.2d 10, 13-14 (1st Cir. 1988). Thus,
that potential due process claim was not before the Board and is
not before us. It appears, however, that it is still open to Ms.
Green to raise such a claim before the Board. On oral argument
here, in response to questions from the court, counsel for the
INS said the following:
. . . Your Honor, she [Ms. Green] does have
that right and there are administrative means
to address that right. . . .
* * * * * *
. . . [W]hat the petitioner would need to do
is file a motion to reopen with the Board
asserting ineffective assistance. She would
also need to write down the agreement that
was made with counsel and if any legal action
had been taken such as reporting to a bar
association.
If, after the issuance of our mandate denying the petition for
review, Ms. Green does file with the Board a motion to reopen on
ineffective-assistance-of-counsel grounds, and if that motion is
denied, we may then be called upon, on a subsequent petition for
review, to determine whether the shortcomings of Ms. Green's
counsel in handling the proceedings before Judge Fujimoto
constituted a deprivation of due process.
Conclusion
Finding no error in the decision of the Board of
Immigration Appeals, we deny the petition for review.
