Gando-Coello v. I.N.S.

• Citation: 888 F.2d 197
• Decision Date: 30 October 1989
• Docket Number: No. 89-1251,GANDO-COELL,P,89-1251
• Parties: Dalton Fernandoetitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 197

888 F.2d 197

Dalton Fernando GANDO-COELLO, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.

No. 89-1251.

United States Court of Appeals, First Circuit.

Submitted Oct. 6, 1989.

Decided Oct. 30, 1989.

John H. Ruginski, Jr., Providence, R.I., on brief, for petitioner, appellant.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Ellen Sue Shapiro, Acting Asst. Director, and Steven L. Barrios, Atty., Office of Immigration Litigation, Civil Div., on brief, for respondent, appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

PER CURIAM.

Petitioner, who has been ordered deported, seeks review of various decisions of the Board of Immigration Appeals (Board). We review the background.

In February 1985 petitioner was arrested. In his possession were 1258 grams of cocaine. Initially petitioner was found incompetent to stand trial, but subsequently, following a competency determination, he pled guilty in June 1986 to importing cocaine and received a suspended sentence. After a deportation hearing at which petitioner failed to appear (even though the hearing had been postponed several times so that petitioner might obtain counsel and the immigration judge had given petitioner a list of organizations to contact for help and warned him to appear for his hearing), petitioner was ordered deported in view of the drug conviction. See 8 U.S.C. Sec. 1251(a)(11) (any alien shall, upon the order of the Attorney General, be deported who has been convicted of a violation of law relating to a controlled substance). Petitioner appealed. Invoking 8 C.F.R. Sec. 3.1(d)(1-a)(i) (Board may summarily dismiss an appeal if party fails to specify the reasons for his appeal), the Board of Immigration Appeals summarily dismissed petitioner's appeal on July 9, 1987, as petitioner's notice of appeal had been extremely conclusory--it had simply asserted that the decision was not supported by substantial evidence and was arbitrary and capricious--and petitioner had failed to file a brief in support of the appeal. Petitioner did not timely seek judicial review of that decision, and hence the merits of that decision are not before us. 8 U.S.C. Sec. 1105a(a)(1) (six months for filing petition for review).

In March 1988, petitioner moved to reopen deportation proceedings and to stay deportation. In support, he submitted an affidavit explaining that he had failed to appear at his earlier deportation hearing because, despite visits to a number of groups or lawyers, he had been unable to obtain representation and, as his English at that time was poor, he felt he would be unable to represent himself. In his motion to reopen, petitioner sought discretionary relief from deportation under 8 U.S.C. Sec. 1182(c), which authorizes the Attorney General to waive deportation for certain aliens who have been lawfully domiciled in the United States for seven consecutive years. Petitioner stated that he had been living in the United States for almost 20 years, that he had been a lawful permanent resident since February 22, 1976, that he had family in the United States (two half-sisters and their families; a daughter with whom petitioner no longer lived), and that he was in need of expert doctors and medication as he had suffered from schizophrenia and he feared adequate medical attention would not be available in his native Ecuador.

The Board denied petitioner's motion to reopen on two independent grounds. First, the Board relied on 8 C.F.R. Sec. 3.2 which provides that "[m]otions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing...." The Board concluded that petitioner's difficulty retaining counsel and fear of proceeding without legal representation were not sufficient cause for his earlier failure to appear and to apply for discretionary relief at that earlier hearing. Secondly, the Board determined that petitioner had not established prima facie eligibility for discretionary relief under Sec. 1182(c) because in March 1988, when petitioner moved to reopen deportation proceedings, petitioner was not a lawful resident. The Board explained as follows:

To be eligible for relief under [8 U.S.C. Sec. 1182(c) ], a respondent must be an alien lawfully admitted for permanent residence and must have a "lawful unrelinquished domicile" of seven consecutive years. This respondent's status as a lawful permanent resident ended when his deportation order became administratively final on July 9, 1987. See ... 8 U.S.C. Sec. 1101(a)(20) ["the term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed"].

It is the Board's July 13, 1988 decision denying petitioner's motion to reopen deportation proceedings so that he might apply for discretionary relief that is now before us for review. ¹

Our review of a Board's decision not to reopen a deportation order is limited to determining whether the decision was arbitrary, capricious, or an abuse of discretion. I.N.S. v. Abudu, 485 U.S. 94, 108 S.Ct. 904, 908-09 n. 3, 912, 99 L.Ed.2d 90 (1988) (Board's determination regarding whether evidence sought to be offered on reopening was not previously available and could not have been presented at former hearing is subject to an abuse of discretion standard of review); Rodriguez...