In re Beckford
| Citation | 22 I&N Dec. 1216 |
| Decision Date | 19 January 2000 |
| Docket Number | Interim Decision No. 3425.,File A31 288 979. |
| Parties | In re Gary Fitzroy BECKFORD, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case was before us on December 29, 1998, when we dismissed an appeal taken from an Immigration Judge's decision finding the respondent removable as charged and ineligible for relief from removal. On July 2, 1999, the respondent filed a motion to reopen. This motion is untimely and will be denied.
The respondent is a native and citizen of Jamaica who entered the United States in 1972 as a lawful permanent resident. A Notice to Appear (Form I-862) was issued by the Immigration and Naturalization Service on April 22, 1997, charging him with removability as an aggravated felon under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996). This charge was based on a July 8, 1996, conviction in the State of Connecticut. The record before us contains an "Information" regarding the respondent's conviction, which reveals that the respondent was convicted, upon a plea of guilty, of "Poss w/ intent to sell" in violation of section 21a-277(a) of the Connecticut General Statutes. That statutory provision relates to "any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance." Conn. Gen. Stat. Ann. § 21a-277(a) (West 1995). The respondent was sentenced to 27 months' confinement for his offense.
Removal proceedings were commenced on October 28, 1997, but were continued to enable the respondent to obtain counsel. At the continued hearing, the respondent again appeared without counsel. The Immigration Judge questioned him regarding the allegations in the Notice to Appear, including the allegation that the respondent was, "on July 8, 1996, convicted in the Superior Court at New Haven, CT for the offense of possession of narcotics with intent to sell, in violation of Section 21a-277(a) of the Connecticut General Statutes." The respondent admitted that allegation. The respondent then stated that he had obtained an attorney. The Immigration Judge noted that no attorney had filed a notice of appearance, but he continued the hearing to a later date.
The proceedings went forward and were completed on March 9, 1998. On that date, the Immigration Judge asked the respondent whether he had been convicted on July 8, 1996, of "possession of narcotics with intent to sell." The respondent again stated that he had been so convicted. The Immigration Judge then entered an order finding the respondent removable and ordering his removal to Jamaica. A timely appeal was filed, which argued that the Immigration Judge abused his discretion and did not take into account the respondent's family in the United States, his military service in the United States Marines, and the nature of the charge against him. The respondent also alleged that he believed his state court conviction "was improper." As noted above, we dismissed that appeal on December 29, 1998.
More than 6 months after our decision, the respondent filed his motion to reopen. This motion made a number of claims regarding ineffective assistance of counsel and the alleged inadequacy of proof of the respondent's removability.
The respondent's motion to reopen is clearly untimely. Under the regulations, a motion to reopen must be filed "no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 3.2(c)(2) (1999). In our precedent decision in Matter of J-J-, 21 I&N Dec. 976 (BIA 1997), we emphasized the importance of the time limits on motions to reopen, noting the need to discourage dilatory motions and Congress' mandate that we issue regulations to do so. We did recognize that we retained "limited discretionary powers" to reopen or reconsider cases on our own motion. Id. at 984. However, we cautioned that such powers should be exercised only in "exceptional situations." Id. We further indicated that it is the respondent's burden to demonstrate that such a situation exists. Id. at 984-85. An exceptional situation has not been shown in this case.
The respondent admitted at his removal hearing that he was convicted of a narcotics offense. This admission came when the Immigration Judge had the respondent plead to the allegations contained in the Notice to Appear, as required by the regulations. See 8 C.F.R. § 240.10(c) (1998). In fact, twice during the proceedings, at separate occasions on different days, the respondent admitted to having a narcotics conviction. These admissions, together with the record of conviction, adequately establish the respondent's removability.
Moreover, and more importantly, the issue before us in this untimely motion is not, as framed by the respondent, whether the Service has met its burden of proof to establish that the respondent is removable as an aggravated felon. It is whether the respondent has met his burden of showing an exceptional situation that warrants our considering this untimely motion.
The respondent has failed to overcome the untimeliness of his motion by demonstrating that an exceptional situation exists. In his brief in support of the motion to reopen, he makes detailed legal arguments explaining why he believes the Service did not meet its burden of proof at the hearing. These arguments miss the point that the issue now before us is not whether the Service met its burden of proof at the hearing. In fact, at no point in his motion papers does the respondent even recognize that his motion is untimely, and no effort has been made to overcome the untimeliness problem.
The current posture of this case is critical to our decision. Were this case now before us on direct appeal, we might be inclined to remand for a further hearing. However, the fact that this is an untimely motion necessarily changes our point of view. A criminal defendant is initially the beneficiary of the rule that the government must prove his guilt beyond a reasonable doubt. However, once having been found guilty, the defendant bears the burden of proof if he wishes to attack that finding. See generally Taylor v. Illinois, 484 U.S. 400, 414 (1988). Similarly, the Service initially bears the burden of proof in a removal proceeding, but once an alien is found removable (and that finding is upheld on appeal, if an appeal is taken), the burden shifts to the alien who wishes to attack that finding. We note that, even where a motion to reopen is not untimely, the motion will not be granted unless there is a reasonable likelihood of success upon reopening. See generally Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); see also INS v. Doherty, 502 U.S. 314 (1992) (); INS v. Abudu, 485 U.S. 94 (1988) (same). This is particularly so when the motion seeking further review of the finding is untimely.
The respondent in this case has not even attempted to claim, much less established, that he is not, in fact, removable. He has stated that the Service failed to prove that he was convicted of an offense involving narcotics or a controlled substance that would render him removable as an aggravated felon. However, he has not alleged, much less proved, that the controlled substance involved in his offense was one that would not render him removable. He has not raised an actual defense to the charge against him. He has suggested a potential theory under which he conceivably might not be removable as an aggravated felon. However, he has not taken the next, and critical, step of showing how the theory applies to his case. He has not, for example, produced any part of the record of conviction that might show what substance was involved in his conviction, and why that substance would not render him removable as an aggravated felon. He has not even claimed in his motion, by affidavit or otherwise, that his offense involved such a substance. At this point, we require such an affirmative showing from the respondent.
In fact, rather than stating what substance was involved in his offense and arguing that substance would not render him removable as charged, the respondent submitted an affidavit in support of his motion that further supports the finding of removability. In a sworn statement dated May 27, 1999, the respondent states that he was charged in Connecticut "with possession with intent to sell narcotics." Thus, the respondent's own motion papers would actually support a finding of removability. He has not attempted to prove that he is not actually removable as charged because he cannot make such a showing.
To warrant our taking this untimely motion sua sponte, the respondent needed to show the...
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