Caruncho v. I.N.S.

• Decision Date: 19 October 1995
• Docket Number: 94-70753,Nos. 93-70448,s. 93-70448
• Citation: 68 F.3d 356
• Parties: 95 Cal. Daily Op. Serv. 8182, 95 Daily Journal D.A.R. 14,076 Domingo Guevara CARUNCHO; Susan Baylon Caruncho; Sir Jason Baylon Caruncho; Ser Nelson Baylon Caruncho; Richardson Baylon Caruncho, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Sir Jason Baylon CARUNCHO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 356

68 F.3d 356

95 Cal. Daily Op. Serv. 8182, 95 Daily Journal

D.A.R. 14,076

Domingo Guevara CARUNCHO; Susan Baylon Caruncho; Sir Jason

Baylon Caruncho; Ser Nelson Baylon Caruncho;

Richardson Baylon Caruncho, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Sir Jason Baylon CARUNCHO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 93-70448, 94-70753.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1995.

Decided Oct. 19, 1995.

Martin Resendez Guajardo and Kim Pederson, Law Office of Martin Resendez Guajardo, San Francisco, California, for petitioners.

Robert Kendall, Jr., and Terri J. Lavi, Department of Justice, Washington, D.C., for respondent.

Petition to Review Decisions of the Immigration and Naturalization Service.

Before: HALL, WIGGINS, and LEAVY, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Petitioner Domingo Guevara Caruncho, along with his wife and three sons as additional petitioners (Petitioner), requests review of the Board of Immigration Appeals' (BIA) summary dismissal of his appeal from a final deportation order. Petitioner argues that his Notice of Appeal form EOIR-26 was sufficiently specific, and that the dismissal procedures used by the BIA did not comport with due process. Petitioner also argues that the BIA abused its discretion by denying his motion to reopen.

Additionally, Petitioner's son, Sir Jason Baylon Caruncho, contends that the BIA abused its discretion in denying his separate motion to reopen based on his marriage to a newly-naturalized citizen of the United States.

For the reasons set forth below, we conclude that we do not have jurisdiction over Petitioner's appeal from the BIA's summary dismissal. Pursuant to 8 U.S.C. Sec. 1105a, we do have jurisdiction over Petitioner's and Jason Caruncho's appeals of the BIA's denials of their motions to reopen. We affirm the denials of the motions to reopen.

I.

Petitioner is a native and citizen of the Philippines. Nearly seven years ago, in October, 1988, he entered this country on a six-month tourist visa. On May 9, 1989, more than seven months later, the Immigration and Naturalization Service (INS) commenced deportation proceedings against Petitioner by ordering him to show cause why he should not be deported from the United States for overstaying his nonimmigrant visa in violation of 8 U.S.C. Sec. 1251(a)(1)(B). Petitioner admitted his deportability, and applied for asylum pursuant to 8 U.S.C. Sec. 1158, and for withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h). Alternatively, Petitioner requested voluntary departure under 8 U.S.C. Sec. 1254(e).

At the deportation hearing on February 23, 1990, the Immigration Judge (IJ) delivered an oral decision denying Petitioner's application for asylum and withholding of deportation, and granting him voluntary departure by June 1, 1990. On March 2, 1990, Petitioner timely filed a Notice of Appeal from the decision of the IJ with the BIA. Petitioner attached an addendum with his Notice alleging that the IJ abused his discretion in denying his asylum application, and indicated--both on that addendum and on the form itself--that he would submit an appellate brief following receipt of the transcripts of the oral decision. Despite these promises, and following receipt of the requested transcripts, Petitioner never submitted a brief.

On December 28, 1990, the INS moved for summary dismissal of Petitioner's appeal, citing the Notice of Appeal's lack of specificity, and dilatory purpose. On February 13, 1992, the BIA granted the Government's motion, summarily dismissing Petitioner's appeal for lack of specificity, as provided by 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A), and ordering voluntary departure within 30 days.

On May 8, 1992, Petitioner timely filed his first petition for review in this Court, thereby staying the deportation order. Shortly thereafter, however, Petitioner moved to withdraw the petition for review. On August 26, 1992, this Court allowed Petitioner to withdraw his petition, and stayed the deportation order for 60 days in order to allow him to file a motion to reopen the proceedings with the BIA.

On September 17, 1992, Petitioner moved to reopen his deportation proceedings with the BIA, and to stay the deportation order. About a week later, the BIA issued its refusal to consider Petitioner's motions because deportation was not imminent. Approximately five months later, however, the INS served Petitioner with notice to surrender for deportation on March 10, 1993. In light of imminent deportation, on February 23, 1993, Petitioner again moved to reopen. On May 4, 1993, the BIA denied Petitioner's motion to reopen.

Petitioner then petitioned this Court a second time on May 20, 1993. He sought review of the BIA's denial of the motion to reopen, as well as of the underlying deportation order and summary dismissal. As a consequence of petitioning for judicial review, the deportation order was stayed once again.

On May 15, 1992, during the course of these events, Jason Caruncho married Cherie Sagueco, a lawful permanent resident of the United States. While awaiting the BIA's decision regarding Petitioner's second motion to reopen, Sagueco filed a relative immigrant visa petition on behalf of Jason Caruncho. On April 29, 1993, the INS approved that petition. Around this time, Sagueco asked the INS to expedite her pending naturalization application.

Sagueco was naturalized as a United States citizen on February 15, 1994. On the basis of his marriage to Sagueco, Jason Caruncho moved to reopen his deportation proceedings, and to seek adjustment of status to permanent resident pursuant to 8 U.S.C. Sec. 1255. On August 17, 1994, the BIA denied Jason Caruncho's motion to reopen. On November 14, 1994, Jason Caruncho timely petitioned this Court for review of that denial.

II. JURISDICTION TO REVIEW THE SUMMARY DISMISSAL

8 U.S.C. Sec. 1105a(a)(1) states that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." This Court has recognized repeatedly that statutory time limits are "mandatory and jurisdictional." Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). Jurisdiction lies over an untimely immigration appeal, therefore, only in rare instances. See, e.g., Hernandez-Rivera, 630 F.2d at 1355 (holding that the BIA can assert jurisdiction over late notice of appeal where there has been "official misleading as to the time within which to file a notice of appeal").

Here, the BIA summarily dismissed Petitioner's appeal on February 13, 1992. This summary dismissal constituted a final deportation order for the purposes of the statute. Stone v. INS, --- U.S. ----, ----, 115 S.Ct. 1537, 1542, 131 L.Ed.2d 465 (1995). We now have before us, however, a petition for review of the summary dismissal filed May 20, 1993, more than a year later. In our view, this observation should end the inquiry. The petition before us was filed more than ninety days after the issuance of the final deportation order of which it seeks review.

The Petitioner nonetheless makes several arguments in support of jurisdiction that we find unpersuasive. Primarily, he asserts that his filing and subsequent withdrawal of his timely-filed first petition somehow confers jurisdiction over the underlying deportation order, despite that the petition before us is untimely on its face. We addressed a similar argument in Chudshevid v. INS, 641 F.2d 780 (9th Cir.1981). In Chudshevid, we held that when an alien filed neither a motion to reconsider nor a petition for review within the time limit prescribed by section 1105a(a)(1), our jurisdiction attached to the BIA's denial of the motion to reconsider, but not to the underlying final deportation order. ¹ 641 F.2d at 784. Here, the Petitioner filed a first petition for review within the ninety-day period, but later withdrew it. He also failed to file a motion to reopen or a motion to reconsider within the ninety-day period. Thus, unless the first petition for review has some legal significance to the timeliness of the second petition, Chudshevid controls and we lack jurisdiction to review the underlying deportation order.

The Petitioner, however, argues that the first petition does have legal significance. Specifically, he argues that the timely filing and subsequent withdrawal of the petition for review "tolled" the ninety-day period, rendering his second petition timely. We reject this argument, for several reasons.

First, it calls upon us to extend a tolling doctrine that, although this Court had long approved, the Supreme Court recently rejected. This Court first established a tolling doctrine for late-filed petitions for review in Bregman v. INS, 351 F.2d 401 (9th Cir.1965). According to the tolling rule, a motion to reopen or reconsider, or a petition for review filed within the statutory time limit would make "an otherwise final appealable order ... no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated." Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (9th Cir.), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984). In other words, a motion to reopen or a petition for review filed within the section 1105a(a)(1) limit would serve to toll and restart that time limit. If the motion was denied and the applicant wished to petition for judicial review, the reviewing court would then have jurisdiction over both the denial of the motion to reopen, as well as the underlying order. ²

The Supreme Court, however, expressly disapproved this rule in Stone, --- U.S. ----, 115 S.Ct. 1537. In Stone, the Supreme Court settled a dispute among the Circuits involving use of the tolling doctrine. It rejected the tolling rule in favor of the no-tolling rule adopted...