Arango-Aradondo v. I.N.S.
| Decision Date | 10 January 1994 |
| Docket Number | D,No. 1929,P,ARANGO-ARADOND,1929 |
| Citation | 13 F.3d 610 |
| Parties | Jairoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 92-4224. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen J. Kloepfer, New York City (Lawrence J. Portnoy, Davis, Polk & Wardwell, New York City, of counsel), for petitioner.
Diogenes P. Kekatos, Asst. U.S. Atty. (Mary Jo White, U.S. Atty., Southern District of New York, Gabriel W. Gorenstein, Asst. U.S. Atty., New York City, of counsel), for respondent.
Before: WINTER, MINER, and WALKER, Circuit Judges.
Jairo Arango-Aradondo petitions this court for review of a decision of the Board of Immigration Appeals ("BIA") that dismissed his petition for a waiver of deportability pursuant to Sec. 212(c) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1182(c). In this appeal, we are asked to decide whether a pro se prisoner can timely file his petition for review if he delivers it to prison authorities within the filing deadline and whether we can hear a claim for ineffective assistance of counsel that has not been first presented to the BIA.
Arango, a Colombian citizen, was legally admitted into the United States as a permanent resident in 1965. He has remained in the United States ever since except for two trips to Colombia. On January 26, 1990, Arango pleaded guilty in New York State Supreme Court to attempted criminal sale of a controlled substance in the third degree. The court sentenced Arango to imprisonment for three to six years, and he is currently incarcerated at the Fishkill Correctional Facility. Arango's criminal record included twenty-one arrests, seven convictions, and several extended periods of incarceration.
On the basis of the 1990 drug conviction, the Immigration and Naturalization Service ("INS") began proceedings to deport Arango pursuant to 8 U.S.C. Secs. 1251(a)(4)(B) and 1251(a)(11). Arango conceded deportability, but petitioned for a waiver of deportability pursuant to Sec. 212(c) of the Act. Following a hearing, the immigration judge issued an oral decision denying Arango's petition and ordering him deported to Colombia. On October 28, 1992, the BIA affirmed the denial of the waiver and dismissed his appeal.
On November 27, 1992, Arango put his petition for review in a stamped envelope addressed to the clerk of this court and dropped it in the prison mailbox at Fishkill. On December 2, 1992, the clerk received the petition.
The Government argues that jurisdiction over Arango's petition is absent because it was untimely. A petition for review of a final deportation order must normally be filed no later than 90 days after the date the order is issued; however, in the case of an alien convicted of an aggravated felony, the petition for review must be filed no later than 30 days after the date the order is issued. 8 U.S.C. Sec. 1105a(a)(1) (Supp. IV 1992). The time limits imposed by the Act are jurisdictional prerequisites, and we have no authority to consider late petitions. Stajic v. INS, 961 F.2d 403, 404 (2d Cir.1992). Because the BIA's final deportation order in this case was filed on October 28, 1992, Arango, as an alien convicted of an aggravated felony, was required to file his petition for review no later than November 27, 1992.
Although Arango submitted his petition to prison officials within the statutory time limit, the clerk of the court did not receive it until after the deadline had passed. Arango contends that under the Supreme Court's decisions in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), a pro se prisoner's notice of appeal is "filed" at the moment it is conveyed to prison authorities for forwarding to the district court. While Lack and Fallen involved appeals from, respectively, a dismissal of a habeas petition and a criminal conviction and were governed by different rules of procedure, Arango argues that the rationale underlying these decisions applies with equal force to appeals from deportation orders by pro se prisoners.
We need not address this argument in light of a recent amendment to Rule 25(a) of the Federal Rules of Appellate Procedure which became effective while this appeal was sub judice. The amended Rule provides in relevant part that:
Papers filed by an inmate confined in an institution are timely filed if deposited in the institution's internal mail system on or before the last day for filing. Timely filing of papers by an inmate confined in an institution may be shown by a notarized statement or declaration (in compliance with 28 U.S.C. Sec. 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.
Fed.R.App.P. 25(a); 61 U.S.L.W. 4395, 4400 (1993). The order of the Supreme Court transmitting to Congress this and other amendments to the Federal Rules of Appellate Procedure states "[t]hat the foregoing amendments ... shall take effect on December 1, 1993, and shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings in appellate cases then pending." 61 U.S.L.W. at 4395. We see no reason why it is not "just and practicable" to apply the amended Rule to the facts of this case, and the Government has proffered no argument as to why we should rule differently. Arango has complied with the requirements of the Rule by submitting an affidavit verifying that he deposited his petition for review in a properly wrapped and stamped envelope in the Fishkill mailbox on November 27, 1992. Accordingly, since Arango deposited his papers in the prison's internal mail system within the limitations period, the petition was timely filed and we have jurisdiction.
Arango challenges the BIA's denial of his Sec. 212 waiver application on the grounds that, inter alia: the BIA's denial was an abuse of discretion; he was deprived of his right to an attorney of his choice at the deportation hearings; and the non-lawyer who represented him provided ineffective assistance.
Arango first argues that the BIA's denial of a Sec. 212(c) waiver of deportability was an abuse of discretion. In considering applications for waiver of deportability, immigration judges must balance the adverse factors demonstrating an alien's undesirability as a permanent resident of the United States with the social and humane factors presented on his behalf. Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA 1978); see also Akrap v. INS, 966 F.2d 267, 271 (7th Cir.1992). We will only find an abuse of discretion where the decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group." Li Cheung v. Esperdy, 377 F.2d 819, 820 (2d Cir.1967) (citation omitted).
In this case, it is evident that the immigration judge carefully and thoroughly weighed the evidence in Arango's favor (including his drug and alcohol rehabilitation efforts, his longtime residency in the United States, his close family ties, and the hardship he will endure in Colombia given his HIV status and his lack of ties there) against the detrimental evidence (including his sporadic employment record, his failure to file taxes, and, most importantly, his "very lengthy and very severe" criminal record together with his long involvement in drug culture). Based on these considerations, the judge concluded that "the positive factors presented just do not outweigh the adverse factors." Since the judge considered the evidence presented by Arango, we are not empowered to reweigh the evidence and second guess his determination. Gouveia v. INS, 980 F.2d 814, 819 (1st Cir.1992).
We also reject Arango's contention that the BIA abused its discretion when it summarily dismissed his appeal "based upon and for the reasons set forth in [the immigration judge's] decision." We join our sister circuits in upholding a summary affirmance by the BIA when the immigration judge's decision below contains sufficient reasoning and evidence to enable us to determine that the requisite factors were considered. See, e.g., Youssefinia v. INS, 784 F.2d 1254, 1262 (5th Cir.1986); Marquez-Medina v. INS, 765 F.2d 673, 675 n. 3 (7th Cir.1985). The two cases cited by Arango in opposition to this conclusion are distinguishable because they involved situations where the BIA was the first forum to rule on an application and therefore could not have relied on the reasons set forth by the immigration judge. See Anderson v. McElroy, 953 F.2d 803, 805 (2d Cir.1992) (); Mattis v. INS, 774 F.2d 965, 967 (9th Cir.1985) ().
Arango next argues that he was denied the right to the attorney of his choice because the presiding officer at his deportation proceedings misled him into retaining Reverend Robert Vitaglione, a non-lawyer, by mischaracterizing Rev. Vitaglione as an attorney. However, the record does not support Arango's claim. At his first hearing, Arango appeared without a representative, but informed the immigration judge that he had contacted Rev. Vitaglione to represent him. The immigration judge informed Arango that he could contact Prisoners' Legal Services and adjourned the proceedings for more than two months to allow him to obtain an attorney or legal representative. At the next hearing, Arango appeared with Rev. Vitaglione and answered affirmatively when asked whether Rev. Vitaglione was his "representative and authorized to speak on his behalf." Arango also signed a notice of appearance which explicitly stated that Rev. Vitaglione was not an attorney, but rather, an "accredited...
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Arango-Aradondo v. Immigration & Naturalization Serv.
... ... Arango's criminal record included [13 F.3d 612] twenty-one arrests, seven convictions, and several extended periods of incarceration. On the basis of the 1990 drug conviction, the Immigration and Naturalization Service (“INS”) began proceedings to deport Arango pursuant to 8 U.S.C. §§ 1251(a)(4)(B) and 1251(a)(11). Arango conceded deportability, but petitioned for a waiver of deportability pursuant to § 212(c) of the Act. Following a hearing, the immigration judge issued an oral decision denying Arango's petition ... ...