Edwards v. I.N.S., No. 1434

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMAHONEY
Citation59 F.3d 5
Decision Date20 June 1995
Docket NumberD,No. 1434
PartiesGilbert Louis EDWARDS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 94-4069.

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59 F.3d 5
Gilbert Louis EDWARDS, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 1434, Docket 94-4069.
United States Court of Appeals,
Second Circuit.
Argued May 19, 1995.
Decided June 20, 1995.

Judith Z. Katz, New York City (Arthur S. Linker, Rosenman & Colin, of counsel), for petitioner.

Diogenes P. Kekatos, Asst. U.S. Atty. for the S.D. of N.Y., New York City (Mary Jo White, U.S. Atty., James A. O'Brien III, Sp. Asst. U.S. Atty., Steven M. Haber, Asst. U.S. Atty., of counsel), for respondent.

Before: ALTIMARI, MAHONEY and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner Gilbert Louis Edwards seeks review of an order rendered February 9, 1994 by the Board of Immigration Appeals (the "BIA") that dismissed Edwards' appeal from a decision by an immigration judge dated December 3, 1993 that found Edwards to be deportable under section 241(a)(2)(C) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1251(a)(2)(C), and ineligible for a waiver of deportation under section 212(c) of the Act, 8 U.S.C. Sec. 1182(c).

Edwards mistakenly filed his petition in the United States District Court for the Southern District of New York, and the proper parties were therefore not promptly served. As a result, he did not become entitled to a statutory stay until over a

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month after he filed his petition. Because he was deported in the interim, we dismiss his appeal for lack of subject matter jurisdiction.

Background

Edwards, a native and citizen of Jamaica, entered the United States in 1981 without being inspected by the Immigration and Naturalization Service (the "INS"). According to the INS, Edwards' status was adjusted to that of lawful permanent resident pursuant to Sec. 245A of the Act, 8 U.S.C. Sec. 1255a, on November 21, 1989. 1 On July 15, 1993, Edwards was convicted, following a guilty plea, of criminal possession of a weapon in the third degree in the New York Supreme Court, New York County, and sentenced to a prison term of one year.

Following service upon Edwards of an order to show cause charging that his conviction rendered him deportable under Sec. 241(a)(2)(C), and a hearing at which Edwards was represented by an accredited representative, Immigration Judge Alan Vomacka ruled that: (1) Edwards was deportable; and (2) because Edwards did not meet the requirement of Sec. 212(c) that he have seven years of lawful unrelinquished domicile in the United States, 2 he was not eligible for a waiver under that provision. Edwards appealed to the BIA, which ruled that Sec. 212(c) relief is unavailable to an alien who is deportable as a result of a weapons conviction.

On March 7, 1994, Edwards, proceeding pro se, mailed by certified mail to the United States District Court for the Southern District of New York a petition that sought review of the BIA decision, and a motion for stay of deportation, to proceed in forma pauperis, and for the appointment of counsel. Both the petition and the motion were headed by a district court caption. He also mailed these documents by certified mail to the United States Attorney for the Southern District of New York.

Although the clerk of the district court stamped the petition received as of March 15, 1994, he did not forward it to the clerk of this court until April 22, 1994; the petition was marked received in this court as of March 15, 1994. See 28 U.S.C. Sec. 1631 (if petition is filed in court lacking jurisdiction, court may transfer petition to proper court, and action shall proceed as if filed in proper court on date filed in transferor court). Four days later, the clerk of this court notified the United States Attorney by phone that the petition had been filed and mailed copies of the petition and motion to the United States Attorney and the INS district director. However, Edwards had been deported on March 23, 1994.

The INS then filed a motion to dismiss the petition on the ground that the deportation divested this court of subject matter jurisdiction. We denied the motion, but granted Edwards' motion to proceed in forma pauperis and for the appointment of counsel. Briefs were thereafter filed and argument was heard.

Discussion

Edwards contends that because he served his petition upon the United States Attorney, the legal representative of the INS, on March 7, 1994, he thereby obtained a statutory stay, and that his deportation in violation of that stay does not divest this court of subject matter jurisdiction. He then addresses the merits of his petition.

Invoking Sec. 106(c) of the Act, 8 U.S.C. Sec. 1105a(c) ("An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order."), and Roldan v. Racette, 984 F.2d 85, 90 (2d Cir.1993)

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(even if events during administrative review raise due process concerns, Sec. 106(c) "admits of no exceptions"), the government argues that even if Edwards was deported in violation of a statutory stay, once he was deported, this court was divested of subject matter jurisdiction. The government contends in the alternative that Edwards did not meet the requirements to obtain a statutory stay, and also argues the merits.

We have serious doubts that our holding in Roldan permits the INS to deport an alien in violation of a stay or deprives this court of jurisdiction in such an eventuality, and we assume that the INS would not have the temerity deliberately to flout a...

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120 practice notes
  • U.S. v. Garcia-Echaverria, No. 03-3655.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 1, 2004
    ...notice to the government when a stay has been issued in order to avoid the situation that occurred in this case. See, e.g., Edwards v. INS, 59 F.3d 5, 7 n. 3 (2d Cir.1995). Moreover, the Second Circuit has "rejected the idea that an undocketed order [is] a nullity," citing cases holding tha......
  • Olle v. Columbia University, No. 02 Civ. 8552(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 15, 2004
    ...of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (quotation marks omitted); see also Edwards v. I.N.S., 59 F.3d 5, 8-9 (2d Cir.1995). Indeed, proceeding pro se "does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro......
  • Fuller v. I.N.S., No. 3:99CV00454 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 15, 2000
    ...of jurisdiction because petitioner had departed voluntarily during pendency of appeal of deportation order to the BIA); Edwards v. INS, 59 F.3d 5, 7 n. 2 (2d Cir.1995) (dismissing petition for lack of subject matter jurisdiction where alien had miscaptioned petition such that it did not rea......
  • Tavares v. Amato, No. 9:12–CV–563.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 18, 2013
    ...position is rejected. Plaintiff is presumed to be aware of the time period and procedure for filing such objections, see Edwards v. INS, 59 F.3d 5, 8 (2d Cir.1995) ( “While a pro se litigant's pleadings must be construed liberally, ... pro se litigants generally are required to inform thems......
  • Request a trial to view additional results
120 cases
  • U.S. v. Garcia-Echaverria, No. 03-3655.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 1, 2004
    ...notice to the government when a stay has been issued in order to avoid the situation that occurred in this case. See, e.g., Edwards v. INS, 59 F.3d 5, 7 n. 3 (2d Cir.1995). Moreover, the Second Circuit has "rejected the idea that an undocketed order [is] a nullity," citing cases holding tha......
  • Olle v. Columbia University, No. 02 Civ. 8552(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 15, 2004
    ...of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (quotation marks omitted); see also Edwards v. I.N.S., 59 F.3d 5, 8-9 (2d Cir.1995). Indeed, proceeding pro se "does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro......
  • Fuller v. I.N.S., No. 3:99CV00454 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 15, 2000
    ...of jurisdiction because petitioner had departed voluntarily during pendency of appeal of deportation order to the BIA); Edwards v. INS, 59 F.3d 5, 7 n. 2 (2d Cir.1995) (dismissing petition for lack of subject matter jurisdiction where alien had miscaptioned petition such that it did not rea......
  • Tavares v. Amato, No. 9:12–CV–563.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 18, 2013
    ...position is rejected. Plaintiff is presumed to be aware of the time period and procedure for filing such objections, see Edwards v. INS, 59 F.3d 5, 8 (2d Cir.1995) ( “While a pro se litigant's pleadings must be construed liberally, ... pro se litigants generally are required to inform thems......
  • Request a trial to view additional results

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