Chu v. I.N.S., 85-7342

• Citation: 875 F.2d 777
• Decision Date: 26 May 1989
• Docket Number: No. 85-7342,85-7342
• Parties: Jian Gang CHU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 777

875 F.2d 777

Jian Gang CHU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7342.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 14, 1987.

Submitted Sept. 1, 1988.

Decided May 26, 1989.

Jon Wu, San Francisco, Cal., for petitioner.

Alison Drucker and Morris Deutsch, Dept. of Justice, Washington, D.C., for respondent.

Petition to Review an Order of the Immigration and Naturalization Service.

Before ALARCON and O'SCANNLAIN, Circuit Judges, and WILLIAMS, ^* District Judge.

O'SCANNLAIN, Circuit Judge:

We are called upon to decide once again whether a deportation order of the Immigration and Naturalization Service ("INS") rendered final by the INS Board of Immigration Appeals ("BIA") can be rendered nonfinal by a subsequently filed motion for reconsideration. Because the petition for judicial review in this case was filed before the deportation order became final, we lack jurisdiction and therefore the petition must be dismissed.

I

In 1983, Jian Gang Chu ("Chu") entered the United States as a member of a Chinese musical troupe. While passing through customs, he put a note on the back of his watch signaling to United States Customs officials that he wished political asylum. The INS took him into custody the next day.

The INS later issued an order to show cause why Chu should not be deportable as an immigrant alien not in possession of a valid immigrant visa. Chu admitted the facts alleged in that order and conceded his deportability at his deportation hearing in December of 1983. He then filed an asylum application, which the immigration judge treated as a request for both asylum and withholding of deportation. Chu's asylum application was forwarded to the State Department's Bureau of Human Rights and Humanitarian Affairs ("BHRHA") for a routine advisory opinion. The BHRHA concluded that Chu had "not established a well-grounded fear of persecution within the meaning of the United Nations Convention and Protocol relating to the status of refugees."

The immigration judge ("IJ"), relying on the State Department's opinion and testimony in the record, found Chu deportable and entered a deportation order which granted him thirty days within which to depart voluntarily from the United States.

Chu appealed that decision to the BIA, which affirmed the IJ on May 8, 1985. On June 7, 1985, Chu timely moved the BIA to reconsider its May 8th order. On June 19, 1985, but before the BIA had ruled on his motion to reconsider, Chu filed this petition for review. ¹ The June 19th petition for review is before this court.

II

Exclusive jurisdiction to review deportation orders is vested in the courts of appeals by 8 U.S.C. Sec. 1105a(a)(1) which provides: "Petition for review may be filed not later than six months from the date of the final deportation order...."

The INS contends that its deportation order was not final because the motion for reconsideration was still pending before the BIA when Chu sought review in this court. The INS argues that Fed.R.App.P. 4 which controls appeals in civil cases from final orders of the district courts should be applied to this case. Fed.R.App.P. 4(a)(4) states that "[a] notice of appeal filed before the disposition of [various motions] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion...."

Judicial review of federal agency action is generally controlled by the organic agency statute or the Administrative Procedure Act. Fed.R.App.P. 4 is limited by its terms to appeals from district court judgments. In any event, Fed.R.App.P. 15(a), which prescribes the manner in which judicial review of administrative orders is obtained, fails to provide for timeliness of filings beyond the cryptic "within the time prescribed by law." Neither the provisions of Title 8 of the United States Code which governs INS matters nor the regulations promulgated pursuant to it, articulate whether an INS decision is final for purposes of judicial review if post decision motions are pending. One curious provision in 8 C.F.R. Sec. 103.5a states that "[m]otions to open or reconsider shall state whether the validity of the order has been or is the subject of any judicial proceeding." See also 8 C.F.R. Sec. 3.8a (1982); cf. 8 C.F.R. Sec. 243.1 (1982). Nevertheless, these regulations fail to clarify finality of INS action.

Our own circuit has dealt with timeliness of judicial review of INS action on several occasions, and two of our decisions are particularly instructive. In Hyun Joon Chung v. INS, 720 F.2d 1471 (9th Cir.1983), we noted that it was the intent of Congress to

create a process in which there is a single judicial review of all questions relating to an alien's deportation. Where either a motion to reopen or a motion to reconsider has been filed not later than six months from the date of the final deportation order, an otherwise appealable final order becomes no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated.

Id. at 1474. There we considered whether a petition for review filed within six months of BIA dismissal of an appeal from IJ denial of suspension of deportation gave us jurisdiction to review an underlying order entered seven years earlier.

In the more recent case of Fayazi-Azad v. INS, 792 F.2d 873 (9th Cir.1986), the procedural situation was closer to the one before us now and is, indeed, controlling. There the BIA order upheld the IJ's denial of application for asylum and withholding of deportation. Fayazi-Azad then filed a timely motion to reopen his deportation proceedings. During the pendency of the motion to reopen, he filed what apparently was a protective petition for review of the original decision. Citing Chung, we dismissed the petition and noted:

Because the time for filing a petition for judicial review on the underlying order does not begin to run until the agency acts upon the motion to reopen, it is not necessary for a petitioner to file a protective appeal from the BIA's original decision in order to preserve the issues raised therein.

Id. at 874. Not only is a premature petition not necessary, it is a nullity because there is no final deportation order to review. 8 U.S.C. Sec. 1105a(a)(1). Our own circuit precedent compels dismissal of Chu's petition for lack of jurisdiction.

III

Aware of the harshness of such result in this case, we carefully examine policy arguments favoring jurisdiction to consider Chu's petition. Precedent exists for the proposition that judicial review may ensue while post order reconsideration continues before the agency. Section 10(c) of the Administrative Procedure Act (5 U.S.C. Sec. 704) provides for judicial review and states, in part, as follows:

Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented ... an application ... for any form of reconsideration.

One distinguished member of the Court of Appeals for the District of Columbia wrote that this section "permits judicial appeal and request for agency reconsideration to be pursued simultaneously."...