Gonzalez-Julio v. I.N.S.

• Decision Date: 01 September 1994
• Docket Number: GONZALEZ-JULI,No. 91-70687,P,91-70687
• Parties: Luis Albertoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 820

34 F.3d 820

Luis Alberto GONZALEZ-JULIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70687.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 3, 1993.

Submission Vacated and Deferred May 4, 1993.

Resubmitted Aug. 25, 1994.

Decided Sept. 1, 1994.

Robin Wurtzel, Honolulu, HI, for petitioner.

Ronald T. Oldenburg, Honolulu, HI, for amicus curiae.

Robert Keudall, Jr., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: GOODWIN, TANG and NOONAN, Circuit Judges.

TANG, Circuit Judge:

The Board of Immigration Appeals (BIA) summarily dismissed petitioner Luis Alberto Gonzalez-Julio's appeal of an Immigration Judge's deportation order on the basis that the appeal was untimely filed. Gonzalez-Julio petitions for review of the dismissal, joined by amicus curiae American Immigration Lawyers Association, Hawaii Chapter, claiming that the regulations for filing notices of appeal violated Gonzalez-Julio's due process rights. We agree and grant the petition.

BACKGROUND

Gonzalez-Julio, a citizen of Bolivia, entered the United States in 1983 as a lawful permanent resident alien. In 1986, he was convicted in the State of Hawaii of promoting a dangerous drug and sentenced to 20 years incarceration. The Immigration and Naturalization Service (INS) began deportation proceedings on August 10, 1988, charging Gonzalez-Julio with deportability as an alien who had been convicted of a controlled substance violation under Sec. 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(11).

At a March 24, 1989 hearing in Honolulu before an Immigration Judge, Gonzalez-Julio challenged deportability on the basis that he had suffered prejudice from the delay in initiating the deportation hearings and because the INS had failed to provide full discovery. The Immigration Judge rejected his claims, and found him to be ineligible for any relief from deportation.

At this hearing, Gonzalez-Julio was told that an appeal must be received in the Office of the Immigration Judge (the "Office") no later than the close of business on April 3, 1989. The Office is located in San Diego, California. Gonzalez-Julio executed a notice of appeal (Form I-290A) dated March 31, 1989. The certificate of service to the INS in Honolulu was also dated March 31, and the petitioner's attorney represents that it was mailed on that date. The appeal was filed by the Office on April 7, 1989.

On November 7, 1991, two-and-one-half years after the appeal was filed, the BIA dismissed the appeal as untimely under 8 C.F.R. Sec. 3.36(b) ¹ and 242.21(a) ² (1991). Both regulations require that an appeal be filed within 10 days of an oral decision or within 13 days of a written decision served on the petitioner by mail. ³

Most immigration hearings in Hawaii are held by a visiting Immigration Judge. Because there is no clerk or resident Immigration Judge in Honolulu, all documents, including notices of appeal, must be filed by mail in the Office of the Immigration Judge which presided over the hearing (generally San Diego for petitioners in Hawaii). The Office does not accept filing fees, however, so petitioners must first pay fees to the INS cashier in Honolulu and then send the notice of appeal to the Office for filing with proof of payment.

If a waiver of the filing fee is requested, the notice of appeal is sent directly to the Office and is not filed until the fee waiver is approved. The government has failed to adequately explain the procedure for approval of fee waivers, despite two separate supplemental briefing orders by this court. It is unclear whether the Immigration Judge or the BIA adjudicates the fee waiver. ⁴ It appears that at some time prior to 1988 the Immigration Judges adjudicated fee waivers. Although the government contends that the BIA now adjudicates fee waivers, Gonzalez-Julio has introduced affidavits demonstrating that Immigration Judges continued to rule on fee waivers at the time Gonzalez-Julio submitted his appeal to the BIA.

Although INS regulations provide that an appeal is "filed" upon receipt, 8 C.F.R. Sec. 3.13, no record is kept of when the notice of appeal is received, nor is a notice of appeal date-stamped upon receipt. Contrary to the representations of government counsel, the record is clear that at least some notices of appeal are not date-stamped upon receipt by the Office. Gonzalez-Julio's notice of appeal did not contain such a stamp for the date it was received.

DISCUSSION

I.

The government first argues that we do not have jurisdiction to review the BIA's dismissal because Gonzalez-Julio did not timely appeal the order of the Immigration Judge, and thus has not exhausted his administrative remedies. See 8 U.S.C. Sec. 1105a(c) ("An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations"); Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987) (statutory exhaustion requirement is jurisdictional); Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (9th Cir.1983) (order of deportation cannot be reviewed unless petitioner has exhausted administrative remedies), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984).

However, we are reviewing the BIA's summary dismissal of the appeal, not the Immigration Judge's order of deportation. The BIA's dismissal is a final agency action for which Gonzalez-Julio can petition for review. 8 C.F.R. Sec. 3.1(d)(2) (decision by Board is final).

Moreover, the BIA "has no jurisdiction to adjudicate constitutional issues," Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985), and thus could not have addressed Gonzalez-Julio's due process challenge. See also Vargas, 831 F.2d at 908 (due process claims generally exempt from exhaustion since BIA does not have jurisdiction to adjudication constitutional issues). We have jurisdiction to determine whether the BIA properly dismissed the appeal for untimeliness.

II.

Gonzalez-Julio challenges the constitutionality of the regulations governing the time and/or method for filing a notice of appeal. Whether administrative procedures infringe constitutional rights is a legal issue reviewed de novo. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985) (claim of violation of due process reviewed de novo).

The government does not dispute that the right to file an appeal is protected by the Due Process Clause. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982) (a cause of action is "property" protected under the Due Process Clause), citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Societe Internationale v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958) (constitutional limitations on court's dismissal of action without opportunity to be heard on the merits). The government also does not dispute that aliens are entitled to due process in deportation hearings. See Toquero v. INS, 956 F.2d 193, 196 (9th Cir.1992) ("it is clear that deportation proceedings must afford procedural due process"; "the BIA's procedures in summarily dismissing appeals must not be so arbitrary as to undermine the principles of due process") (citations omitted).

We must decide whether Gonzalez-Julio received what process is due to protect his right to appeal. Essentially, Gonzalez-Julio argues that it is fundamentally unfair to require him to file an appeal within such a short period of time because he is forced to mail his notice of appeal from Hawaii and he has no control over the mail nor over when the Office of the Immigration Judge files the appeal after receipt.

While procedural requirements such as statutes of limitations, filing fees, and reasonable evidentiary rules may be imposed on the right to adjudication, due process requires an "opportunity [to be heard] ... granted at a meaningful time and in a meaningful manner." See Logan, 455 U.S. at 437, 102 S.Ct. at 1159.

To determine whether the filing procedures grant a "meaningful" opportunity to appeal an order of deportation, we must weigh the interest of the petitioner in filing the appeal, the risk of erroneous deprivation of that interest through the procedures employed, the probable value of additional procedural safeguards, and the interest of the government in using the current procedures. See Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982). In immigration cases, "[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause." Id. at 34-35, 103 S.Ct. at 330.

Gonzalez-Julio's interest in filing the appeal from the order of deportation is, of course, a strong one. He "stands to lose the right to stay and live and work in this land of freedom." Id. at 34, 103 S.Ct. at 330 (quotation omitted).

Following the established procedures for filing an appeal, there is substantial risk that an appeal will not be timely filed. There are two risks of delay in filing which are not within the petitioner's control: delay in mail delivery and delay in filing after receipt by the Office.

A ten-day deadline for filing an appeal, without extra time given if the notice of appeal is mailed, entails a substantial risk that a notice of appeal will not be timely. Because a petitioner's attorney must obtain the client's signature and arrange for payment of the filing fee to the INS office in Honolulu (which has limited hours of operation) prior to mailing the notice of appeal, a notice of appeal is in many cases impossible to file immediately. A slight delay in mail delivery from Hawaii to the mainland United States may thus be fatal to an appeal which has...