Edwards v. I.N.S.

• Decision Date: 20 June 1995
• Docket Number: D,No. 1434,1434
• Citation: 59 F.3d 5
• Parties: Gilbert Louis EDWARDS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 94-4069.
• Court: U.S. Court of Appeals — Second Circuit

Page 5

59 F.3d 5

Gilbert Louis EDWARDS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 1434, Docket 94-4069.

United States Court of Appeals Second Circuit.

Argued May 19, 1995.

Decided June 20, 1995.

Judith Z. Katz, New York City (Arthur S. Linker, Rosenman & Colin, of counsel), for petitioner.

Diogenes P. Kekatos, Asst. U.S. Atty. for the S.D. of N.Y., New York City (Mary Jo White, U.S. Atty., James A. O'Brien III, Sp. Asst. U.S. Atty., Steven M. Haber, Asst. U.S. Atty., of counsel), for respondent.

Before: ALTIMARI, MAHONEY and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner Gilbert Louis Edwards seeks review of an order rendered February 9, 1994 by the Board of Immigration Appeals (the "BIA") that dismissed Edwards' appeal from a decision by an immigration judge dated December 3, 1993 that found Edwards to be deportable under section 241(a)(2)(C) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1251(a)(2)(C), and ineligible for a waiver of deportation under section 212(c) of the Act, 8 U.S.C. Sec. 1182(c).

Edwards mistakenly filed his petition in the United States District Court for the Southern District of New York, and the proper parties were therefore not promptly served. As a result, he did not become entitled to a statutory stay until over a month after he filed his petition. Because he was deported in the interim, we dismiss his appeal for lack of subject matter jurisdiction.

Background

Edwards, a native and citizen of Jamaica, entered the United States in 1981 without being inspected by the Immigration and Naturalization Service (the "INS"). According to the INS, Edwards' status was adjusted to that of lawful permanent resident pursuant to Sec. 245A of the Act, 8 U.S.C. Sec. 1255a, on November 21, 1989. ¹ On July 15, 1993, Edwards was convicted, following a guilty plea, of criminal possession of a weapon in the third degree in the New York Supreme Court, New York County, and sentenced to a prison term of one year.

Following service upon Edwards of an order to show cause charging that his conviction rendered him deportable under Sec. 241(a)(2)(C), and a hearing at which Edwards was represented by an accredited representative, Immigration Judge Alan Vomacka ruled that: (1) Edwards was deportable; and (2) because Edwards did not meet the requirement of Sec. 212(c) that he have seven years of lawful unrelinquished domicile in the United States, ² he was not eligible for a waiver under that provision. Edwards appealed to the BIA, which ruled that Sec. 212(c) relief is unavailable to an alien who is deportable as a result of a weapons conviction.

On March 7, 1994, Edwards, proceeding pro se, mailed by certified mail to the United States District Court for the Southern District of New York a petition that sought review of the BIA decision, and a motion for stay of deportation, to proceed in forma pauperis, and for the appointment of counsel. Both the petition and the motion were headed by a district court caption. He also mailed these documents by certified mail to the United States Attorney for the Southern District of New York.

Although the clerk of the district court stamped the petition received as of March 15, 1994, he did not forward it to the clerk of this court until April 22, 1994; the petition was marked received in this court as of March 15, 1994. See 28 U.S.C. Sec. 1631 (if petition is filed in court lacking jurisdiction, court may transfer petition to proper court, and action shall proceed as if filed in proper court on date filed in transferor court). Four days later, the clerk of this court notified the United States Attorney by phone that the petition had been filed and mailed copies of the petition and motion to the United States Attorney and the INS district director. However, Edwards had been deported on March 23, 1994.

The INS then filed a motion to dismiss the petition on the ground that the deportation divested this court of subject matter jurisdiction. We denied the motion, but granted Edwards' motion to proceed in forma pauperis and for the appointment of counsel. Briefs were thereafter filed and argument was heard.

Discussion

Edwards contends that because he served his petition upon the United States Attorney, the legal representative of the INS, on March 7, 1994, he thereby obtained a statutory stay, and that his deportation in violation of that stay does not divest this court of subject matter jurisdiction. He then addresses the merits of his petition.

Invoking Sec. 106(c) of the Act, 8 U.S.C. Sec. 1105a(c) ("An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order."), and Roldan v. Racette, 984 F.2d 85, 90 (2d Cir.1993) (even if events during administrative review raise due process concerns, Sec. 106(c) "admits of no exceptions"), the government argues that even if Edwards was deported in violation of a statutory stay, once he was deported, this court was divested of subject matter jurisdiction. The government contends in the alternative that Edwards did not meet the requirements to obtain a statutory stay, and also argues the merits.

We have serious doubts that our holding in Roldan permits the INS to deport an alien in violation of a stay or deprives this court of jurisdiction in such an eventuality, and we assume that the INS would not have the temerity deliberately to flout a statutory (or other) stay of a deportation order by deporting the alien subject to that deportation order. ³ See Baez v. INS, 41 F.3d 19, 25 (1st Cir.1994) ("Even if we were to acknowledge that some extreme situations, such as a knowingly unlawful deportation by the INS for the specific purpose of short-stopping an alien's right to review, might justify an exception to section 1105a(c)'s jurisdictional bar, petitioner's claims are not of this stripe."); Mejia-Ruiz v. INS, 51 F.3d 358, 362-63 (2d Cir.1995) ("We need not consider whether the proposed exception in Baez would square with this court's holding in Roldan [in view of alien's] voluntary departure.... [H]owever, our decision should not be read as condoning forced departures by the [INS] as a technique to avoid judicial review of its actions."); cf. Gordon v. INS, 36 F.3d 249, 251 (2d Cir.1994) (per curiam) ("The INS is not entitled to send an alien a formal notice to report 'for deportation' after counsel representing the INS has stipulated that deportation is stayed."). Because we agree with the government that no stay was in effect barring Edwards' deportation, however, we leave this question for another day.

The procedures for obtaining review of a deportation order, and the grant of jurisdiction to this court, are found in Sec. 106 of the Act, which provides in pertinent part:

(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 of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings ..., except that--

....

(3) Respondent; service of petition; stay of deportation

the action shall be brought against the Immigration and Naturalization Service, as respondent. Service of the petition to review shall be made upon the Attorney General of the United States and upon the official of the Immigration and Naturalization Service in charge of the Service district in which the office of the clerk of the court is located. The service of the petition for review upon such official of the Service shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony (including an alien described in section 1252a of this title), in which case the Service shall not stay the deportation of the alien pending determination of the petition of [sic] the court unless the court otherwise directs[.]

8 U.S.C. Sec. 1105a (emphasis added).

The pertinent provision of chapter 158 is 28 U.S.C. Sec. 2344, which specifies that Any party aggrieved by [an agency] final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.... The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.

Id.; see also Fed.R.App.P. 15(c) ("A copy of a petition for review ... shall be served by the clerk of the court of appeals on each respondent.... At the time of filing, the petitioner shall furnish the clerk with a copy of the petition ... for each respondent.").

Edwards claims that the statutory stay was triggered because on March 15, 1994 he served the United States Attorney, which put the INS on notice of his review proceeding. The INS correctly notes, however, that a stay ensues after service upon "the official of the [INS] in charge of the [INS] district in which the office of the clerk of the court is located." 8 U.S.C. Sec. 1105(a)(3). Edwards contends that service upon the United States Attorney is, for all practical purposes, service upon the INS district director. This argument rewrites Sec. 106, which requires service upon both the Attorney General and the district director generally, and upon the district director in particular in order to trigger the stay.

Moreover, Edwards' argument ignores Sec. 2344 and Rule 15(c) altogether, which require that service be undertaken by the clerk of the court. While Sec. 106 supplements the otherwise generally applicable chapter 158, there is no indication that Congress intended to alter the means by which a petition must be served upon the government. Rather, Sec. 106 augments chapter 158 by specifying who must be served and that a stay ordinarily becomes automatically effective upon...