Baez v. I.N.S.

• Citation: 41 F.3d 19
• Decision Date: 08 November 1994
• Docket Number: No. 94-1224,94-1224
• Parties: Lucas P. BAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 19

41 F.3d 19

Lucas P. BAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-1224.

United States Court of Appeals First Circuit.

Heard Nov. 8, 1994.

Decided Dec. 6, 1994.

Paul F. Murphy, with whom MacDonald, Murphy & May, Cambridge, MA, was on brief, for petitioner.

Joan E. Smiley, Attorney, Office of Immigration Litigation, Civ. Div., Dept. of Justice, with whom Frank W. Hunger, Asst. Atty. Gen., Civ. Div., and Lauri Steven Filppu, Attorney, Office of Immigration Litigation, Washington, DC, were on brief, for respondent.

Before SELYA, CYR and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Petitioner Lucas P. Baez, also known as Lucas Porfirio Baez-Soto, also known as Domingo Guzman, an alien who was deported following a state narcotics conviction, attempts to challenge the refusal of the Board of Immigration Appeals (BIA or Board) to reopen its decision to deny him a waiver of deportability. Petitioner's case requires this court to make its initial interpretation of the jurisdictional bar contained in the departure clause of section 106(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. Sec. 1105a(c) (1988). ¹ The courts of appeals have divided on whether this statute signifies what it appears to say. We conclude that the statute's plain meaning must prevail, and, therefore, an alien's departure from the United States, whether voluntary or involuntary, deprives the federal courts of jurisdiction to entertain challenges to an antecedent order of deportation. Because the instant petition solicits judicial inquiry into the correctness of the deportation order that brought about petitioner's departure, we dismiss it for want of appellate jurisdiction.

I. BACKGROUND

Petitioner is a native and citizen of the Dominican Republic. He lawfully entered the United States as a child in 1972. In 1986, he was convicted in a Massachusetts state court of distributing cocaine, and received a five-to-ten-year incarcerative sentence. An alien's commission of a serious drug offense invites deportation. See 8 U.S.C. Sec. 1251(a)(11) (1988); see also 8 U.S.C.A. Sec. 1251(a)(2)(B)(i) (West Supp.1994) (current version). Adhering to the statutory scheme, the Immigration and Naturalization Service (INS) issued an order asking petitioner to show cause why he should not be deported.

Following petitioner's release from prison in 1988, an immigration judge (IJ) held a hearing on the show-cause order. Under section 212(c) of the Act, 8 U.S.C. Sec. 1182(c), a lawfully admitted resident alien domiciled in this country for no fewer than seven years who has been convicted of a drug offense may secure relief from deportation on the basis of that conviction if the Attorney General determines that a waiver appears to be in the national interest because social and humane considerations outweigh the adverse factors evidencing the alien's undesirability. ² See Gouveia v. INS, 980 F.2d 814, 816-19 (1st Cir.1992) (elucidating balancing test); Matter of Marin, 16 I. & N.Dec. 581 (BIA 1978) (similar). During the hearing, petitioner conceded deportability, invoked section 212(c), and requested a discretionary waiver. On June 16, 1989, the IJ issued a decision favorable to petitioner. The judge noted adverse factors, including petitioner's cocaine conviction and neglect of his children, but found those factors overbalanced by petitioner's extended residence, family ties, and the like.

The INS appealed the IJ's decision to the BIA. Under the briefing order applicable to its appeal, the INS had until August 23, 1990, to file its brief, but the matter apparently fell between the cracks. On August 28, petitioner filed a motion to dismiss the appeal with the IJ. The INS responded by serving the wayward brief the next day and, shortly thereafter, submitting its formal opposition to the dismissal motion. In early September, petitioner, apparently realizing belatedly that his motion should have been filed with the BIA rather than the IJ, refiled it with the BIA. After an unexplained three-year lull, the BIA issued an order on September 30, 1993, in which it reversed the IJ's decision, denied petitioner's request for a waiver, and ordered him deported.

On November 22, 1993, at 11:15 p.m., Paul F. Murphy, counsel of record for the petitioner, received a telephone call from petitioner's sister informing him that the INS had taken petitioner into custody that day and intended to deport him posthaste. Attorney Murphy claims that, as of that moment, he did not know of the Board's September 30 decision. The next day, the lawyer moved to stay deportation and reopen the proceedings. He filed these motions at the IJ's chambers in Boston. Early that afternoon, the motions were forwarded to the BIA's office in Falls Church, Virginia. At 2:00 p.m., Attorney Murphy telephoned the BIA and supplied an oral statement in order to facilitate immediate review of the motion to stay deportation. At 4:30 p.m., the BIA notified Attorney Murphy that it had denied the stay because the single member who considered the matter found that the motion to reopen had little likelihood of success. ³

The INS deported petitioner on November 24, 1993. On December 13, in pursuance of the applicable regulation, 8 C.F.R. Sec. 3.2 (1994), the BIA effectively denied petitioner's motion to reopen, deeming it to be withdrawn by virtue of his deportation. On March 10, 1994, petitioner sought judicial review of the "denial" of his motion to reopen. See 8 U.S.C.A. Sec. 1105a (West 1970 & Supp.1994) (prescribing the procedure for review of final deportation orders in the courts of appeals); see also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam) (holding that the BIA's denial of a motion to reopen a deportation proceeding is a judicially reviewable final order). The petition appears to have been filed within the time span fixed by statute. ⁴

II. THE PROFFERS ON APPEAL

An INS regulation provides in pertinent part that "[t]he decision of the [BIA] shall be in writing ... and a copy shall be served upon the alien or party affected as provided in part 292 of this chapter." 8 C.F.R. Sec. 3.1(f) (1994). The cross-referenced regulation stipulates that service may be effected by mail upon "the attorney or representative of record, or the person himself if unrepresented." 8 C.F.R. Sec. 292.5(a) (1994). At all times material hereto, Murphy was petitioner's attorney of record. He claims not to have received timeous notice of the BIA's September 30 decision. Desiring to shed light on this factual issue, we authorized the parties to submit fact-specific proffers anent the notification issue. See Bemis v. United States, 30 F.3d 220, 222 & n. 2 (1st Cir.1994) (authorizing factual proffers on appeal).

Petitioner submitted an affidavit signed by Attorney Murphy's secretary, Montsie Moreno, stating that she sorted the lawyer's mail during October of 1993, but did not receive a copy of the BIA's decision in that time frame. For its part, the INS submitted two sworn declarations. The declaration of April M. Verner, supervisory case management analyst of the BIA's Docket Unit, certified, based on her knowledge of BIA procedure and the record of the case, that a copy of the BIA's September 30, 1993 decision had been mailed contemporaneously to Attorney Murphy at 6 Faneuil Hall Marketplace, Boston, MA 02109 (which was counsel's address of record as indicated on BIA Form EOIR-27, dated September 7, 1990).

The second declaration dovetails with Verner's statement but goes on to strike a somewhat different chord. In it, Judith E. Arnott, the Boston-based INS officer who made the arrangements for petitioner's deportation, observed that a copy of Form I-294 (the official notice of the country to which a particular individual's deportation is directed) had been mailed to Attorney Murphy at his address of record shortly after petitioner's deportation, and that the mailing was returned to the INS on December 7, 1993, marked "forwarding time expired." Ms. Arnott added that neither petitioner nor his representative, Attorney Murphy, ever requested the district director to stay petitioner's deportation.

The parties filed no further proffers. At oral argument, however, Attorney Murphy advised that he continued to maintain an office at 6 Faneuil Hall Marketplace and implied that he had never arranged to have mail forwarded from that address. Nevertheless, he conceded that, in the fall of 1993, his principal offices were located elsewhere, and the Faneuil Hall office was checked for mail at infrequent intervals (perhaps twice a week).

III. ISSUES PRESENTED

Petitioner contends that several errors infected the process leading to his deportation. First, he asseverates that the INS's failure punctually to file its brief deprived the BIA of jurisdiction to hear the initial appeal, and, consequently, that the IJ's decision upholding petitioner's entitlement to a section 212(c) waiver became final agency action (or, put another way, that the BIA's reversal of the IJ's ruling had no force or effect because the BIA's jurisdiction had been pretermitted). Second, petitioner asseverates that, in violation of applicable statutory and administrative rules, the BIA did not properly notify his counsel of its September 30 decision and, therefore, deported petitioner without requisite notice. See, e.g., 8 C.F.R. Sec. 243.3(b) (1994) (providing that a deportation order "shall be executed no sooner than 72 hours after service of the decision").

We are powerless to reach the merits of these asseverations, however, for petitioner's deportation deprives this court of subject matter jurisdiction over the request for judicial review.

IV. ANALYSIS

Section 106(c) of the Act, 8 U.S.C. Sec. 1105a(c), quoted supra note 1, is absolute on its face. It stipulates that a deportation order "shall not be reviewed by any court" once the alien has departed. This flat rule is couched in...