In re Lei
| Decision Date | 16 July 1998 |
| Docket Number | Interim Decision #3356 |
| Parties | In re Guo Yu LEI, Respondent File A42 733 363 - San Francisco |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, and GRANT, Board Members. Concurring and Dissenting Opinions: ROSENBERG, Board Member; GUENDELSBERGER, Board Member. Dissenting Opinions: SCHMIDT, Chairman; VILLAGELIU, Board Member.
MATHON, Board Member:
In a decision dated September 14, 1995, an Immigration Judge ordered the respondent deported in absentia after he failed to appear for his scheduled hearing. On September 26, 1995, the respondent filed a motion to reopen, which was denied by the Immigration Judge. The Board affirmed the Immigration Judge's decision on April 30, 1996, and on September 30, 1996, the respondent filed this motion to reopen with the Board. The motion will be denied.
The record reflects that the respondent and his first attorney appeared at a hearing before the Immigration Judge on January 31, 1995. He conceded deportability on the charge under section 241(a)(1)(D)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(D)(i) (1994), but denied the remaining charges against him. The continued hearing was originally set for October 10, 1995, and the respondent's attorney was personally served with the notice of hearing in court. However, the hearing was later rescheduled for September 14, 1995. Notice of the rescheduled hearing was sent to the respondent's attorney of record by certified mail, and the signed certified mail receipt is included in the record. However, neither the respondent nor his attorney appeared for the September 14, 1995, hearing, and the Immigration Judge ordered the respondent deported in absentia pursuant to section 242B(c)(3) of the Act, 8 U.S.C. § 1252b(c) (1994).
On September 26, 1995, the respondent, through the same attorney, filed a motion to reopen requesting rescission of the in absentia deportation order under section 242B(c)(3)(B) of the Act, alleging that neither he nor his attorney received notice of the rescheduled hearing. On November 27, 1995, the Immigration Judge denied the motion after determining that sufficient notice had been provided to counsel in accordance with section 242B(a)(2) of the Act. See also 8 C.F.R. § 292.5(a) (1995) (). The respondent timely appealed the Immigration Judge's decision, reiterating his lack of notice claim. On April 30, 1996, the Board dismissed the respondent's appeal.1
On September 30, 1996, the respondent, through new counsel, filed a motion to reopen with the Board. He now contends that his original failure to appear was due to "exceptional circumstances" under section 242B(c)(3)(A) of the Act.2 The respondent concedes that the time limit for filing a motion seeking rescission of an in absentia deportation order on such a basis has expired. However, he contends that the time bar should not apply in this case, given the fact that the failure to timely file was due to the ineffective assistance of his former attorney. Specifically, he argues that due to his former attorney's lack of familiarity with immigration law, she failed to recognize the potential "exceptional circumstances" claim within the statutory time limit for such motions.
The issue before the Board is whether a claim of ineffective assistance of counsel constitutes an exception to the 180-day time limit under section 242B(c)(3)(A) of the Act.
Section 242B(c)(3) of the Act provides for the rescission of a deportation order entered in absentia under section 242B(c)(1) as follows:
RESCISSION OF ORDER. — Such an order may be rescinded only —
(A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2)), or
(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2) or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.
Section 242B(c)(3) of the Act.
The use of the term "only" makes this the exclusive method for rescinding an in absentia deportation order entered pursuant to section 242B(c) of the Act. See Matter of Gonzalez-Lopez, 20 I&N Dec. 644, 646 (BIA 1993).
Section 242B(c)(3)(A) of the Act expressly requires that a motion to reopen based on exceptional circumstances be filed within 180 days of the in absentia order. The record in this case reflects that the order of deportation was entered on September 14, 1995. The respondent did not file his current motion until September 30, 1996, well beyond the 180 days allotted by the statute. Therefore, we find that the respondent is statutorily barred from rescinding the deportation order under section 242B(c)(3)(A).3
The respondent concedes that the time limit for filing a motion to reopen to rescind based upon exceptional circumstances has elapsed. However, he essentially urges us to create an exception to the 180-day rule, where the failure to timely file a motion to reopen is due to ineffective assistance of counsel. We decline to do so.
It is well settled that the language of the statute is the starting point of statutory construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). The plain meaning of the words used in the statute as a whole has been held to be the paramount index of congressional intent. Id. at 431; Matter of W-F-, Interim Decision 3288, at 6 (BIA 1996). Moreover, it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984); see also Matter of Shaar, Interim Decision 3290 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir. 1998).
The language of section 242B(c)(3)(A) regarding the time limit within which a motion to reopen must be filed is clear on its face and unambiguous. It provides that an in absentia deportation order entered pursuant to section 242B(c) may be rescinded "only upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances." Section 242B(c)(3)(A) of the Act (emphasis added). The statute contains no exceptions to this time bar. Where the statutory language is clear, "that is the end of the matter" and we "must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); see also Matter of W-F-, supra, at 5-6. Accordingly, we are bound to uphold and apply the plain meaning of the statute as written. Had Congress intended to provide for an exception to the 180-day time limit based on the ineffective assistance of counsel, it could have done so.
This conclusion is consistent with the overall statutory scheme of section 242B of the Act. Section 242B was added to the Act by section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061-65 (enacted Nov. 29, 1990). See generally Matter of Gonzalez-Lopez, supra. It was enacted to provide stricter and more comprehensive deportation procedures, particularly for in absentia hearings, to ensure that proceedings are brought to a conclusion with meaningful consequences. See Matter of Grijalva, Interim Decision 3246, at 7 (BIA 1995); Matter of Villalba, Interim Decision 3310, at 5 n.2 (BIA 1997); 136 Cong. Rec. S17,109 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H8630 (daily ed. Oct. 2, 1990). The 180-day time limit reflects congressional intent to bring finality to in absentia deportation proceedings.
Therefore, given that the statute is explicit in its requirement that a motion to reopen based on exceptional circumstances must be filed within 180 days of the in absentia order, and considering the legislative history of section 242B of the Act, we conclude that a claim of ineffective assistance of counsel is not an exception to the 180-day time limit imposed by section 242B(c)(3)(A) of the Act.
Accordingly, we find the respondent is statutorily barred from rescinding the order of deportation based on "exceptional circumstances" pursuant to section 242B(c)(3)(A) of the Act, regardless of whether he can demonstrate that his failure to timely file the motion is attributable to ineffective assistance of counsel.4
ORDER: The respondent's motion to reopen is denied.
Vice Chairman Mary Maguire Dunne and Board Member Lori L. Scialabba did not participate in the decision in this case.
CONCURRING AND DISSENTING OPINION:Lory D. Rosenberg, Board Member
Our obligation to enforce the terms of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), does not require us to enforce section 242B and its subsections narrowly and restrictively, and it does not preclude us from enforcing section 242B in its entirety, and consistently with the United States Constitution, guided by fairness and compassion. To the contrary, I agree with the majority that we are bound to uphold the statute as written. I cannot agree, however, that the...
To continue reading
Request your trial