Georcely v. Ashcroft

• Decision Date: 12 July 2004
• Docket Number: No. 03-1922.,03-1922.
• Citation: 375 F.3d 45
• Parties: Dieudonna GEORCELY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 45

375 F.3d 45

Dieudonna GEORCELY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1922.

United States Court of Appeals, First Circuit.

Submitted April 29, 2004.

Decided July 12, 2004.

David Iverson on brief for petitioner.

Michelle R. Thresher, Office of Immigration Litigation, Civil Division, Department of Justice, Peter D. Keisler, Assistant Attorney General, Civil Division, Department of Justice, and Linda S. Wendtland, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before BOUDIN, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

BOUDIN, Chief Judge.

Dieudonna Georcely, a citizen of Haiti, arrived in the United States Virgin Islands on or about January 25, 2002. In January 2002, the Immigration and Naturalization Service ("INS"), as it was then named, charged Georcely with removability under 8 U.S.C. § 1182(a)(6)(A)(i) (2000) as an alien who had arrived in the United States without lawful authority. Georcely conceded removability but said that he intended to apply for asylum, withholding of removal, and relief under the Convention Against Torture.¹

On or about March 15, 2002, the immigration judge set a hearing to be held in St. Thomas, the Virgin Islands, on April 29, 2002. Georcely had by then apparently relocated to Boca Raton, Florida, to stay with a cousin. On April 11, 2002, his lawyer mailed to the immigration judge a motion to change venue to Miami, Florida. The day before the scheduled hearing Georcely's counsel called the immigration court and was informed that the court had not yet received the motion.

Neither Georcely nor his counsel appeared at the April 29, 2002, hearing. As is permitted by the statute, the immigration judge conducted the hearing in absentia, 8 U.S.C. § 1229a(b)(5)(A) (2000), and on that same day ordered Georcely removed to Haiti.

On June 25, 2002, Georcely's counsel filed a motion to reopen and change venue claiming that Georcely "in good faith believed that a change of venue to the Miami District, where he was residing, would be or had been granted." The apparent delay in the mail and failure of the immigration court to approve the transfer were, he asserted, events "beyond the knowledge much less control of the alien" and supported a finding of "exceptional circumstances" justifying relief. See 8 U.S.C. § 1229a(b)(5)(C), (e)(1).

The INS opposed the request to reopen and on July 18, 2002, the immigration judge denied Georcely's motion. The judge said that Georcely's attorney had "filed many motions for reopening claiming the same situation," that neither an alien nor his counsel was entitled to assume that a motion to change venue will be granted, and that Georcely's counsel was "well aware" that the motion had not been granted because he had called the court the day before and was told the motion had not arrived.

On August 16, 2002, Georcely filed a motion to reconsider. He said it was reasonable for him to believe that the motion would be granted because at an earlier bond reduction hearing for Georcely, the immigration judge had inquired of the INS whether it would oppose a change in venue to the Miami district if the petitioner so requested, and the INS attorney allegedly said she would have no objection. Georcely's counsel also argued that it was reasonable for him to think that his mailed motion would arrive within 5 to 7 days — well within the 18 days before the hearing.

Georcely's counsel stated that his alien client "had inquired repeatedly" as to whether the motion to change venue had been sent and was told that it had been. Accordingly, Georcely "was unaware" that the motion had not been received or granted and that he had not been excused from appearing in St. Thomas. Even if Georcely had known that he was not excused, said counsel, Georcely could not have arrived in St. Thomas "on one day's notice."

Finally, Georcely's counsel cited Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), as holding that "ineffective assistance of counsel is another ground for finding of exceptional circumstances." He described as "analogous" another case (Matter of Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996)), where relief was granted because counsel as a "tactic of delay" deliberately misinformed the respondent that he did not have to appear. Counsel continued:

Lozada required that a bar complaint be filed in order to claim ineffective assistance of counsel; however, [Esposito v. INS, 987 F.2d 108, 110-11 (2d Cir. 1993) and Figeroa v. INS, 886 F.2d 76 (4th Cir.1989)] hold that ineffective assistance of counsel can be established without such complaint being made. Obviously, undersigned is less than comfortable making a self-denunciation to the bar, but will do so if the Court so requires.

The immigration judge denied the motion to reconsider, saying that this was the fifth time the court had to confront counsel's "way of representing clients before this Court" and that the court "will not tolerate any longer this counsel's way of representing clients before this Court"; that lawyers who file motions have to take account of the mails; and that "counsel was less than diligent in this and all the other cases where he brings up the same shaky excuses."

Georcely's counsel then filed an appeal to the Board of Immigration Appeals ("BIA"), repeating earlier arguments and adding that Georcely, "unemployed and indigent, would not have been able to afford a ticket to go to St. Thomas in any event." The BIA denied the appeal, saying in substance that the exceptional circumstances test was intended for compelling matters (e.g., a serious illness preventing attendance) and did not include an alien's voluntary absence from a scheduled hearing.

Georcely now appeals to this court. At the threshold, we face an issue of venue. Shortly before the scheduled oral argument, Georcely's counsel moved to submit the case without argument (a motion we granted), observing in passing that the case arose in the Virgin Islands and that the Third Circuit customarily had jurisdiction over cases arising in the Virgin Islands. See 28 U.S.C. § 1291 (2000); 48 U.S.C. § 1613a(c) (2000); Government of Virgin Islands v. Rivera, 333 F.3d 143, 146 (3d Cir.2003). Construing this as a motion to change venue, the government responded, saying that it

agree[d] with the Petitioner that because the hearing during which the Petitioner was ordered removed in absentia took place in the Virgin Islands, this case is not properly before this Court, and should be transferred to the Third Circuit.

The applicable statute for review of INS decisions, 8 U.S.C. § 1252(b)(2) (2000), provides (as to "venue and forms") that "[t]he petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." The question posed by this language — actually a double question of some difficulty — can be understood only against the background of the geographic operations of the immigration court in the Caribbean.

It appears from the information available to us that the immigration court responsible for the present case is based in Guaynabo, Puerto Rico, that it has jurisdiction over Puerto Rico, St. Thomas and St. Croix (the latter two being U.S. Virgin Islands), and that the immigration judge based in Guaynabo holds in person hearings in the Virgin Islands as well as telephonic hearings with St. Croix.² In our case — perhaps in all such cases — stamps on the documents indicate that filings by counsel with the immigration court were sent to and docketed in Guaynabo.

Here, the immigration judge conducted the in absentia hearing that resulted in the removal order in St. Thomas; but there is a reasonable likelihood that the order was officially filed and docketed at the headquarters in Guaynabo; admittedly, the record is unclear on this point.³ If the removal order "completed" the proceedings, the question posed would be whether the completion occurred in the Third Circuit where the ruling was made (St.Thomas) or the First Circuit (Guaynabo) where we think that the order was officially filed and docketed.

If the order was officially filed and docketed in Guaynabo, the most straightforward reading of the language of section 1252(b)(2) would probably lead us to conclude that the removal proceedings were completed in Guaynabo (assuming that they were completed by the removal order rather than by the later denial of the motion to reopen). This is so because a judicial order is normally effective when filed and docketed, see United States v. Fiorelli, 337 F.3d 282, 287 (3d Cir.2003); Willhauck v. Halpin, 953 F.2d 689, 701 (1st Cir.1991); 11 Wright, Miller, & Kane, Federal Practice and Procedure § 2785 (2d ed. 1995 & Supp.2004), although exceptions exist. As it happens, the appeal in this case was originally filed in the Eleventh Circuit, presumably because counsel hoped to associate it with the Miami office of the INS. When the INS then moved for a transfer to this circuit, a motion not opposed by Georcely, the INS said that "the immigration judge completed proceedings in San Juan, Puerto Rico."

This view that the place of filing and docketing controls must be tentative. The statutory language is so far from conclusive, see Ramos v. Ashcroft, 371 F.3d 948, 950 (7th Cir.2004), that absent legislative history, policy concerns would matter if they weighed heavily on either side. Further facts might affect the outcome (e.g., perhaps the removal order for some reason was effective when announced). And, most important, a definitive ruling is unnecessary here because — as we will see — the venue issue has been forfeited.

In the interest of getting issues on the table, a further complication should be mentioned. Even if the removal proceedings might otherwise be deemed to have been completed in St. Thomas (contrary to our tentative assessment), the removal order itself was followed by a motion to reopen, later...