Malvoisin v. INS, Docket No. 01-4001
| Decision Date | 01 August 2000 |
| Docket Number | Docket No. 01-4001 |
| Citation | 268 F.3d 74 |
| Parties | (2nd Cir. 2001) SANDIA MALVOISIN, PETITIONER/RESPONDENT, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT/MOVANT |
| Court | U.S. Court of Appeals — Second Circuit |
Motion to dismiss a petition for review of a deportation order issued by the Board of Immigration Appeals. Petitioner argues that, although her petition was untimely, we have jurisdiction to review the BIA's order because extraordinary circumstances prevented her from complying with the filing deadline. We hold that we lack jurisdiction, dismiss her petition, and deny her motion for a stay of deportation as moot.
Ralph J. DiPietro, DiPietro & Peppard, Grand Neck, New York, for Petitioner/Respondent.
Megan L. Brackney, Assistant United States Attorney (Janet Reno, United States Attorney General, Mary Jo White, United States Attorney, Kathy S. Marks, Assistant United States Attorney, Gideon A. Schor, Assistant United States Attorney, Diogenes P. Kekatos, Assistant, United States Attorney, and William Slattery, of counsel), New York, New York, for Respondent/Movant.
Before: Winter, Straub, and Pooler, Circuit Judges.
Sandia Malvoisin, a citizen of Haiti, petitions for a review of a deportation order issued by an immigration judge and affirmed by the Board of Immigration Appeals ("BIA"). Malvoisin did not file her petition within the statutory deadline but argues that her failure to do so is excused because of extraordinary circumstances. The Immigration and Naturalization Service ("INS") has moved to dismiss her petition for lack of jurisdiction. We conclude that we lack jurisdiction and grant the motion.
After concluding that Malvoisin had illegally entered and stayed in this country, an immigration judge ordered Malvoisin's removal from the United States. According to the immigration judge's findings, Malvoisin had: (i) committed fraud or made a willful misrepresentation of a material fact to procure admission into the United States; (ii) falsely claimed to be a citizen of the United States; and (iii) stayed in the United States without a valid immigrant visa or other entry document. See 8 U.S.C. § 1182(a)(6). Malvoisin, represented by counsel, appealed the deportation order to the BIA. In her appeal, she asked for asylum in the United States, explaining that she feared for her safety if she were to return to Haiti.
On December 1, 2000, the BIA dismissed Malvoisin's appeal and affirmed the deportation order. At that time, Malvoisin was incarcerated by the INS in a facility located in York, Pennsylvania. She asserts that her attorney failed to inform her of the BIA's decision. On December 28, 2000, Malvoisin was transferred to another facility located in Jamaica, New York, at which time she learned of the BIA's December 1 actions. On January 3, 2001, represented by a new attorney, she filed the present petition for review of the BIA's dismissal of her appeal and moved for an emergency stay of deportation. The INS, in response, filed a motion to dismiss, arguing that Malvoisin's petition was untimely and that we therefore lack jurisdiction.
Under the Immigration and Nationality Act, a "petition for review must be filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). The BIA rendered such a final order on December 1, 2000 when it dismissed Malvoisin's appeal and affirmed the immigration judge's deportation order. Accordingly, Malvoisin had thirty days from that date to file her petition for review.
Because December 31, 2000 fell on a Sunday and January 1, 2001 was a holiday, the effective final day for Malvoisin to file her petition was January 2, 2001. See Fed. R. App. P. 26(a)(3). Because she did not file her petition until January 3, 2001, it was untimely.
Malvoisin argues that her delay was excusable because she never heard from her first attorney about the BIA's December 1, 2000 order and learned of it only after arriving at the Jamaica facility on December 28, 2000, in the middle of the holiday season. At that time, she immediately obtained a new attorney.
Although Malvoisin's reasons for the failure to file a timely petition might be cause for extending the deadline under a more liberal standard,...
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