Alleyne v. U.S. I.N.S.

• Decision Date: 17 July 1989
• Docket Number: No. 88-3608,88-3608
• Parties: Erskine ALLEYNE, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 1177

879 F.2d 1177

Erskine ALLEYNE, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-3608.

United States Court of Appeals Third Circuit.

Argued Jan. 30, 1989.

Decided July 17, 1989.

James J. Orlow (argued), Orlow and Orlow, P.C., Philadelphia, Pa., for petitioner.

Mary Reed (argued), Richard M. Evans, Joseph F. Ciolino, Office of Immigration Litigation Civil Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Before HUTCHINSON, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Erskine Alleyne petitions for review of an order of the Board of Immigration Appeals (Board) which affirmed an Immigration Judge's finding of deportability. After filing the petition, and within the statutory period for seeking judicial review, Alleyne asked the Board to reconsider or reopen its decision. Although that motion is still pending, we hold that given the Congressional policy evidenced in the immigration statutes we have jurisdiction over the petition for review.

On the merits, Alleyne argues that the Immigration Judge improperly admitted a criminal complaint associated with his conviction for violating various Pennsylvania firearms laws and that there was insufficient other evidence to prove his conviction of possession of a sawed-off shotgun as charged by the Immigration & Naturalization Service (INS). He also claims, even considering the criminal complaint, that there was no evidence of the weapon's barrel length, a requirement he finds in Board precedent, and that the Immigration Judge did not make required findings of fact. Since Alleyne did not raise these issues before the Board, we are unable to consider them. Accordingly, we will deny the petition for review.

I.

Alleyne, a native and citizen of Barbados, entered the United States as a lawful permanent resident in 1971. On December 16, 1980, he was convicted of violating 18 Pa.Cons.Stat.Ann. Secs. 908 (Purdon Supp.1988) (repairing, selling or otherwise dealing in, using or possessing any "offensive weapon") 6106 (Purdon 1983) (carrying a firearm in a vehicle or concealed on or about the person without a license) and 6108 (Purdon 1983) (carrying a firearm, rifle or shotgun on public streets or public property of Philadelphia without a license). ¹ The INS commenced deportation proceedings on May 27, 1981, alleging that Alleyne had been convicted of possessing and carrying a sawed-off shotgun in violation of the above statutes and was therefore deportable under Sec. 241(a)(14) of the Immigration and Nationality Act, 8 U.S.C.A. Sec. 1251(a)(14) (West Supp.1989). ²

At a September 24, 1981 hearing before an Immigration Judge, Alleyne admitted the convictions but denied they established the deportable offense charges under Sec. 241(a)(14). Administrative Record (A.R.) at 26-27. No testimony was taken, but copies of the order to show cause and the criminal transcript evidencing the convictions were admitted. The INS also sought to introduce a copy of the criminal complaint, marked as Exhibit 2-A, which states that on August 12, 1980 Sergeant James McDonnell observed Alleyne throw into some hedges an object which proved to be a "sawed off 12 Gauge Shot gun which was loded [sic] with one rifled [sic] slug." Id. at 63. Alleyne objected, arguing that the copy was not authenticated and that the complaint was "not part of the trial, disposition or the conviction." Id. at 29. The INS then "request[ed] a continuance ... of the Exhibit 2-A proper and certify [sic]" and reserved the right to call Sergeant McDonnell. Id. at 33 (ellipsis in original).

Sergeant McDonnell was present when the hearing resumed on November 30, 1981, but the INS declined to call him and did not present an authenticated copy of the criminal complaint. After copies of the Pennsylvania statutes were admitted, the Immigration Judge found that the INS had proven by clear, convincing and unequivocal evidence that Alleyne had been convicted of possessing a sawed-off shotgun and was deportable. Id. at 45-46. The hearing was adjourned again so that Alleyne could seek a waiver of deportability under 8 U.S.C.A. Sec. 1182(c) (West 1970). On October 23, 1985, the Immigration Judge denied Alleyne's request for a waiver for lack of prosecution and ordered Alleyne deported. A.R. at 19.

Alleyne appealed, but the Board dismissed the appeal as untimely. We vacated that order, Alleyne v. INS, No. 86-3230 (3d Cir. Aug. 19, 1986) (order), and on remand the Board affirmed the order of the Immigration Judge. The Board found that deportability had been established by "clear, convincing and unequivocal evidence," and that "[t]he record before us contains the respondent's record of being convicted on December 16, 1980, of possessing a sawed-off shotgun in violation of 18 G.P.S.A. [sic] Secs. 6106, 6108 and 908 (Exhs. 2-4)." A.R. at 1. This timely petition for review followed.

II.

We consider first a question of our jurisdiction. After filing this petition, and within the time for seeking judicial review, Alleyne asked the Board to reconsider or reopen its decision. We must determine whether that motion, which is still pending, deprives the Board's order of finality and precludes our review. ³

In Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir.1986), we held that the filing of a reconsideration motion does not toll the six month time period for seeking judicial review under the Immigration and Nationality Act. Noting that we can independently review the denial of a motion to reopen or reconsider, we stated that "a proper petition for review must be filed within six months of the specific order sought to be reviewed, in compliance with 8 U.S.C. Sec. 1105a(a)(1)." Id. (emphasis in original). We reasoned that to hold otherwise would conflict with the Congressional policy to

prevent undue delay in deportation once the alien's immigration status had been decided. Enacting the Immigration and Nationality Act, Congress was especially sensitive to what it designated as "the growing frequency of judicial actions being instituted by undesirable aliens whose cases ... are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country." H.R. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin.News 2950, 2967. Protracted litigation was viewed by Congress as a means of exploiting the judicial process. Thus, permitting aliens the benefit of additional time from their filing of motions to reopen or to reconsider would directly contravene Congressional intent to prevent successive, piecemeal appeals from being used as a dilatory tactic to postpone the execution of deportation orders. Moreover, the six month appeal period was seen by Congress to be "sufficient and far beyond the realms of any claim of unfairness, for an alien to determine whether he really has a case upon which he should seek judicial review and to prepare therefore." Id. at 2973.

Id. (footnote omitted). ⁴

This result differs from the typical rule in administrative law cases. In ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), the relevant statute provided that the agency's order was final on the date filed notwithstanding a provision authorizing motions to reconsider or reopen. Nevertheless, the United States Supreme Court, applying the rule developed under the Administrative Procedure Act (APA), 5 U.S.C.A. Sec. 704 (West 1977), concluded that the filing of such a motion rendered the underlying order nonfinal and tolled the appeals period. Id. 107 S.Ct. at 2369. ⁵

In West Penn Power Co. v. EPA, 860 F.2d 581 (3d Cir.1988), we reached a similar result where a party sought reconsideration before the agency and, simultaneously, judicial review. ⁶ Unlike the sequential review in Locomotive Engineers, there was no risk that a party would inadvertently lose its right to appeal. Thus, one of the reasons supporting tolling was absent. Id. at 585. We concluded, however, that we were bound by Locomotive Engineers, seeing "no principled way to distinguish between the concept of finality for purposes of triggering the running of a time limit for appeals and the concept of finality for the purpose of appellate court jurisdiction." Id. We also found the rule that a reconsideration motion renders an agency's order nonfinal to be good policy, stating:

We can see no justification for allowing a petitioner to apply to both the court and the agency at the same time. On the contrary, such a regime could lead only to waste of resources on the part of the agency, the court, or both, without any countervailing benefit.

Id. at 586. See also United Transp. Union v. ICC, 871 F.2d 1114 (D.C.Cir.1989) (finding reasoning of West Penn persuasive and holding that reconsideration motion pending before ICC rendered its order nonfinal, precluding judicial review).

West Penn does not refer to Nocon. However, as we noted in West Penn, "Under different circumstances it might have been appropriate to conclude that Congress has made a policy judgment that efficiency is always secondary in the context of judicial review of agency actions. However, the legislative history reflects no such judgment...." 860 F.2d at 587. We believe Nocon is distinguishable and that we remain constrained by it because of the Congressional policy underlying the Immigration and Nationality Act. In the immigration context, Congress has determined that the potential for abusive appeals outweighs efficiency concerns. Accordingly, following Nocon, we hold that the pending reconsideration motion does not render the order of deportation nonfinal. ⁷ These policy concerns compel the same conclusion with respect to the motion to reopen. ⁸

We therefore have jurisdiction and turn to the merits.

III.

Alleyne raises three claims of error in this Court. He asserts that Exhibit 2-A, the criminal complaint filed by the Philadelphia police for...