Atiqullah v. I.N.S.
Decision Date | 08 November 1994 |
Docket Number | No. 94-1078,94-1078 |
Parties | ATIQULLAH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Eighth Circuit |
Joseph Lopez Wilson, Omaha, NE, for appellant.
Richard M. Evans, Washington, DC, for appellee.
Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.
The Board of Immigration Appeals (BIA) summarily dismissed, as untimely filed, petitioner Atiqullah's appeal of an order deporting him to Pakistan. Atiqullah petitions for review of the dismissal. We grant the petition and reverse.
In 1986, Atiqullah escaped to Pakistan from his native Afghanistan. He entered the United States as an exchange visitor in May 1988 and stayed beyond his two-year visa. Following a deportation and asylum hearing, the Immigration Judge (IJ) concluded on June 4, 1991, that Atiqullah was eligible for withholding of deportation, but, in the exercise of discretion, ordered Atiqullah deported to Pakistan.
The IJ's memorandum of oral decision stated: "This decision is final unless an appeal is taken to the Board of Immigration Appeals by returning to this office on or before 6/14/91 three copies of Form EOIR-26, Notice of Appeal, properly executed, together with a fee of one hundred ten dollars." Atiqullah's counsel received a fax transmittal memo containing the Form EOIR-26 from the Immigration and Naturalization Service (INS) Omaha District Office on June 13 and informing Atiqullah that the IJ's new address was 536 Clark Street, Chicago, Illinois 60604. (The correct zip code was 60605.) Form EOIR-26 stated:
Filing. This notice of appeal with Certificate of Service on the opposing party must be filed with the Office of Immigration Judge having administrative control over the Record of Proceeding within 10 calendar days (or 13 calendar days if mailed ) after service of the decision of the Immigration Judge. The Notice of Appeal is not to be forwarded directly to the Board of Immigration Appeals (BIA).
Atiqullah mailed his Form EOIR-26 on June 14, 1991, using the incorrect zip code he was provided. The notice of appeal was filed on July 2, 1991. He also mailed a separate notice of appeal to the INS Omaha District Office; it arrived on June 17. More than two years later, on November 15, 1993, the BIA dismissed the appeal as untimely.
Atiqullah argues that his case presents "unique circumstances" justifying an exception to the filing deadline. First, 8 C.F.R. Sec. 3.38(b) 1 is ambiguous and can be interpreted as allowing thirteen days if the notice of appeal is mailed; second, the IJ's memorandum referred to "returning" (not filing) the notice of appeal to "this office," and the letterhead cited the Executive Office of Immigration Review, not the Office of the Immigration Judge; third, the separate notice of appeal Atiqullah mailed to the INS Omaha District Office was received on June 17, and thus the notice should be deemed filed on that date under 8 C.F.R. Sec. 3.3(a) (); and fourth, INS personnel misled him by giving him the wrong address of the Office of the Immigration Judge, which caused the fifteen-day delay.
The INS, arguing that the appeal was properly dismissed as untimely, concedes that 8 C.F.R. Sec. 3.38(b) could be construed to mean that, if the notice of appeal is mailed, the notice can be filed within thirteen days. The INS argues, however, that when section 3.38(b) is read in conjunction with 8 C.F.R. Sec. 242.21(a) (), it is clear that thirteen days are allowed only if the IJ's decision is mailed.
Generally, the time limit for filing a notice of appeal to the BIA is mandatory and jurisdictional. Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980). In unique circumstances, if "a party is 'misled by the words or conduct of the court,' an appellate tribunal may have jurisdiction to hear an otherwise untimely...
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