El-Gharabli v. I.N.S.
| Decision Date | 04 June 1986 |
| Docket Number | No. 85-2278,P,EL-GHARABL,85-2278 |
| Citation | 796 F.2d 935 |
| Parties | Mohammedetitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Edwin Meese, Attorney General of the United States, and A.D. Moyer, District Director of Immigration and Naturalization Service, Chicago Region, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard M. Evans, Asst. Director, Office, of Immigration Litigation, Mary Reed, Washington, D.C., for respondents.
Before WOOD, CUDAHY and COFFEY, Circuit Judges.
Petitioner, Mohammed El-Gharabli, asks us to review an immigration judge's decision not to reopen deportation proceedings. The Board of Immigration Appeals ("BIA") affirmed the judge's decision. We deny the petition for review.
El-Gharabli entered the United States in 1981 on a student visa. 1 He left college in late 1982, and in July 1983 the Immigration and Naturalization Service ("INS") ordered petitioner to show cause why he should not be deported for violating the conditions under which he was admitted to this country.
Five weeks later El-Gharabli married an American citizen. Thereafter his wife filed an immigrant visa petition, 2 and on October 27, 1983 the immigration judge granted the INS's motion to terminate deportation proceedings so that the INS could consider El-Gharabli's application for adjustment of status. 3 On December 1, 1983 petitioner's wife withdrew her immigrant visa petition, and the deportation proceedings against El-Gharabli were reinstated.
At a hearing on March 1, 1984 the petitioner (El-Gharabli) stated that he and his wife had reconciled and that his wife had filed a new immigrant visa petition. Accordingly, El-Gharabli requested another continuation of the deportation proceedings so that this second immigrant visa petition could be evaluated. The INS objected and offered the following facts to support its position. On December 1, 1983 El-Gharabli's wife told INS officials that she wanted to withdraw her petition; she said she wanted a divorce because her husband had beaten her. The INS talked to petitioner's wife again after El-Gharabli notified the INS that he would refile his wife's petition; at that time, the wife told the INS that petitioner and his counsel were harassing her and forcing her to sign the petition against her will. After hearing the INS's offer of proof the judge denied the request for a continuance and found El-Gharabli deportable, but allowed him until July 20, 1984 to leave the country voluntarily. 4
El-Gharabli did not depart. Instead, he filed a motion to reopen the deportation proceedings on July 20, 1984, alleging that he and his wife had lived together continuously except for two days in December 1983 and that his family would suffer extreme hardship if he were deported. No affidavits or exhibits were attached to the motion.
The immigration judge denied the motion on November 16, 1984. The judge ruled that El-Gharabli (1) had not established a prima facie case of eligibility for relief under 8 U.S.C. Sec. 1255, see note 3 supra, and (2) was not entitled to discretionary relief under In re Garcia, 16 I & N Dec. 653 (1978). 5 El-Gharabli appealed to the BIA, which summarily affirmed, after petitioner failed to file a brief, and dismissed his appeal. This appeal followed.
The scope of our review is extremely narrow. We recently decided that the denial of a motion to reopen will be overturned only if it (1) was made without a rational explanation, (2) inexplicably departed from established policies, or (3) rested on an impermissible basis such as invidious discrimination against a particular race or group. Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985). 6 The judge's decision need only be reasoned, not convincing. Id. at 1266. And although in a motion to reopen an alien must show prima facie eligibility for the relief he seeks, Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983), the INS has the discretion to deny a motion to reopen even if the movant has made out a prima facie case. INS v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985). See also INS v. Phinpathya, 464 U.S. 183, 188 n. 6, 104 S.Ct. 584, 588 n. 6, 78 L.Ed.2d 401 (1984); INS v. Wang, 450 U.S. 139, 144 n. 5, 101 S.Ct. 1027, 1031 n. 5, 67 L.Ed.2d 123 (1981) (per curiam).
El-Gharabli raises two issues on appeal. The first is that the judge abused his discretion in not considering the new evidence offered. The judge explained that El-Gharabli had not offered any significant evidence which had not previously been presented. In particular, the judge noted that the motion did not explain why Mrs. El-Gharabli withdrew her first petition and provided no evidence that she filed the second petition free of duress. This was not an abuse of discretion. El-Gharabli offered these same arguments unsuccessfully in March 1984. The only "new" evidence presented in the motion to reopen was that the couple had continued to live together. This was insufficient to address the judge's concerns about circumstances surrounding the refiling of the second petition. In addition, we note that the motion to reopen did not satisfy the requirements of 8 C.F.R. Sec. 103.5: "A motion to reopen shall state the new facts to be proved at the reopened proceedings and shall be supported by affidavits or other evidentiary material."
El-Gharabli's second argument is closely related to his first. Citing Sida v. INS, 665 F.2d 851 (9th Cir.1981), he contends that the judge abused his discretion in not explaining why the evidence offered to reopen the case was insufficient. 7 First of all, the judge did explain: the evidence had been presented earlier and did not address the issues raised by the withdrawal and subsequent refiling of the immigrant visa petition. Second, under the standard we adopted in Achacoso-Sanchez, the judge need only have articulated a rational explanation for his decision. He did so in this case. There is no requirement that the judge explain why each piece of evidence is not enough to justify reopening the case.
The petition for review is denied. 8
Besides ruling on the merits of this case, we must also consider whether we should sanction petitioner's counsel, Elliott L. DuBois, for misconduct. By an order dated January 29, 1986 the court ordered that this issue be decided by the panel assigned to decide the merits. The factual background follows.
Petitioner's brief was originally due on September 3, 1985, and on August 30, 1985 DuBois filed a motion for a thirty-day extension, giving two reasons for his request. First, DuBois stated he had been "repeatedly engaged in lengthy administrative hearings and civil trials" in July and August. Second, he stated that "the major portion of research and drafting has been completed but due to complexities of issues involved additional time is requested." The motion was denied. Circuit Rule 8(a) requires a motion for an extension of time to contain specific factual statements that establish to the court's satisfaction that with due diligence, and giving priority to preparing the brief, it will not be possible to file the brief on time. 9 In particular, involvement in other litigation may be a ground for granting an extension of time provided the other litigation is described in detail, reasons are given why the other cases should receive priority and the movant explains why associated counsel (if any) cannot either prepare the brief or handle the other litigation. In addition, allegations of complexity must be supported with a specific factual description of the litigation on appeal. DuBois's motion clearly lacked the specificity required by our rule, and the court told him so when it denied his request for an extension. 10
Rather than file a motion that complied with Rule 8(a), DuBois did nothing. On November 20, 1985 we issued a rule to show cause why the case should not be dismissed for lack of prosecution. DuBois responded on December 6, 1985 (two days late; he was given fourteen days to respond) with a motion to file the brief instanter. Apparently attempting (unsuccessfully) to comply with Rule 8(a), 11 the motion gave two reasons for the long filing delay. First, DuBois stated that he had been involved in numerous immigration hearings. There was no identification of the cases by docket number and no explanation of the nature or timing of these hearings; rather, DuBois simply listed the names of 54 of his clients. The second reason was that DuBois had been ill.
We granted the motion to file instanter simply to get the briefing underway; it had already been delayed for three months and we saw no reason to delay it any further. Instead, we ordered DuBois to show cause why he should not be disciplined. We took this step because of the brief DuBois had submitted with his motion to file instanter. The case that DuBois had described in August as "complex" seemed much different in his brief: the brief contains two pages of argument and two case citations. At best, DuBois's August motion contains an extremely misleading description of the case; at worst, DuBois may have deliberately misrepresented the nature of the case to the court. 12
DuBois's response to the most recent rule to show cause has some explanation for his actions. 13 He states that he did not think that he could file a second request for an extension of time, 14 But DuBois had an opportunity to provide this explanation when we issued our November 20 rule to show cause; he did not do so.
...
To continue reading
Request your trial
-
M.A. v. U.S. I.N.S.
...Cir.1982). This standard is not difficult to satisfy: "The [BIA's] decision need only be reasoned, not convincing." El-Gharabli v. INS, 796 F.2d 935, 937 (7th Cir.1986). The principles of discretion discussed above also lead us to reject petitioner's formulation of his evidentiary burden. P......
- Smith v. Sheahan
-
Oviawe v. I.N.S.
...the INS has the discretion to deny a motion to reopen even if the movant has made out a prima facie case. El-Gharabli v. INS, 796 F.2d 935, 937 (7th Cir.1986) (per curiam) (footnote omitted); accord Shahandeh-Pey v. INS, 831 F.2d 1384, 1387 (7th Cir.1987); Hernandez-Patino v. INS, 831 F.2d ......
-
Wijeratne v. I.N.S.
...abuse of that discretion. Doherty, 112 S.Ct. at 724-25. See also Oviawe v. INS, 853 F.2d 1428, 1430-31 (7th Cir.1988); El-Gharabli v. INS, 796 F.2d 935, 937 (7th Cir.1986); Conti v. INS, 780 F.2d 698, 700-01 (7th Cir.1985); Achacoso-Sanchez, 779 F.2d at 1264-65. In this circuit, the BIA doe......