Karimian-Kaklaki v. I.N.S.
| Decision Date | 06 August 1993 |
| Docket Number | K,No. 93-4158,KARIMIAN-KAKLAK,93-4158 |
| Citation | 997 F.2d 108 |
| Parties | Aliakbarobra Safari, Reza Karimian-Kaklaki, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Eugene J. Flynn, Dallas, TX, for petitioners.
Stuart M. Gerson, Acting Atty. Gen., U.S. Dept. of Justice, Anthony W. Norwood, Robert Kendall, Jr. and Thomas W. Hussey, Robert L. Bombough, Director, Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.
John B.Z. Caplinger, INS Dist. Director, New Orleans, LA.
Ronald Chandler, INS, Dallas, TX.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
Aliakbar Karimian-Kaklaki (Karimian), individually and on behalf of his wife and their son, petitions for review of a final order entered by the Board of Immigration Appeals (BIA) denying his request for asylum or withholding of deportation. Because the petition for review was not timely filed in this Court, we are without jurisdiction and accordingly dismiss the petition.
Karimian, along with his wife and their son, all natives and citizens of Iran, last entered the United States on December 2, 1984. They were admitted as non-immigrant visitors until June 1, 1985.
On March 28, 1985, while still lawfully in this country, Karimian filed an application for asylum, in his own name and on behalf of his wife and child, citing ethnic, religious, and political grounds. The District Director of the Immigration and Naturalization Service (INS) denied the request for asylum in January 1988 but granted petitioners thirty days to depart the United States voluntarily. 1
On March 24, 1988, the INS issued orders to show cause charging that petitioners would be deportable from the United States pursuant to (then) section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), for remaining in this country for a longer period of time than permitted. 2 At a deportation hearing before an Immigration Judge, petitioners conceded their deportability but claimed that they were authorized to remain in the United States during the consideration of their application for asylum, an application that they renewed during the deportation proceedings. In addition, they sought withholding of deportation, and, in the alternative, voluntary departure.
On August 9, 1988, after a full evidentiary hearing at which Karimian and other witnesses for the petitioners testified, the Immigration Judge issued an oral decision finding petitioners deportable. The Immigration Judge denied petitioners' request for asylum and for withholding of deportation but granted their application for voluntary departure for a period of three months. In the alternative, the Judge ordered them to be deported to Iran in the event that they did not voluntarily depart during the three month period. Petitioners appealed the Immigration Judge's decision to the BIA.
In a per curiam decision dated November 18, 1992, the BIA affirmed the Immigration Judge's order of deportation and allowed petitioners a thirty-day period of voluntary departure from the date of its decision. Petitioners now appeal from the BIA's decision. Their petition for review was mailed to this Court on February 14, 1993; the petition was received and filed in this Court on Thursday, February 18, 1993.
Petitioners raise several challenges to the BIA order denying their requests for asylum or withholding of deportation. Because their petition for review was not filed within the period provided in 8 U.S.C. § 1105a(a)(1), however, we do not have jurisdiction to reach the merits of their appeal.
In order to obtain review of a BIA decision in this Court, an alien must file a petition for review "not later than 90 days after the date of the issuance of the final deportation order...." 8 U.S.C. § 1105a(a)(1) (West Supp.1993). "[T]he time for filing a review petition begins to run when the BIA complies with the terms of federal regulations by mailing its decision to petitioner[s'] address of record." Ouedraogo v. Immigration and Naturalization Service, 864 F.2d 376, 378 (5th Cir.1989). The BIA order appealed from is dated November 18, 1992, and the record contains a copy of a BIA letter dated November 18, 1992, transmitting the decision to petitioners' counsel at his address of record. The ninety-day period for requesting review of this order in this Court expired on February 16, 1993, two days after petitioners mailed their petition from Dallas, Texas, but two days before the petition was received and filed by the clerk of this Court in New Orleans, Louisiana.
A timely petition for review is a jurisdictional requirement, and the lack thereof deprives this Court of authority to review final orders of deportation. Te Kuei Liu v. Immigration and Naturalization Service, 645 F.2d 279, 282 (5th Cir.1981) (); Gena v. Immigration and Naturalization Service, 424 F.2d 227, 231 (5th Cir.1970) (). See also Stajic v. Immigration and Naturalization Service, 961 F.2d 403, 404 (2d Cir.1992) ().
Petitioners assert several arguments, claiming that their petition for review should be considered timely. First, they contend that there is no evidence of record that the BIA actually mailed its decision on the date stamped thereon, November 18, 1992. This argument was successful in Ouedraogo v. Immigration and Naturalization Service, 864 F.2d at 378. There, the petitioner claimed that he was not ever advised of the BIA's decision nor ever provided a copy of its opinion. Because neither the record nor the INS could establish when the decision was mailed to the petitioner, we declined to dismiss the appeal from the BIA order.
In the instant case, however, petitioners have not asserted that they did not receive a copy of the BIA decision. Moreover, in contrast to the Ouedraogo case, the record now before us contains a transmittal letter enclosing a copy of the BIA decision, addressed to the attorney who represented petitioners before the Immigration Judge and the BIA. 3 The letter is dated November 18, 1993, the date the decision was issued by the BIA.
Petitioners do not assert when they received the decision, nor do they argue that the decision was in fact or must have been mailed at a later date because they received it later or on any other basis (nor is there any assertion that the mailing was misaddressed or the like). Instead, they essentially claim only that the decision might not have been mailed on November 18. They point to nothing indicating that letter was not properly mailed Wednesday, November 18, 1992, except to suggest (without evidence) that often government letters are not mailed on the date they bear. This unsupported, general assertion does not negate the objective evidence of the transmittal letter included in the record on appeal. 4
Because it adequately appears from the record that the BIA decision was properly mailed to petitioners' counsel on November 18, 1992, and because there is nothing before us to indicate otherwise, petitioners' reliance on our action in Ouedraogo is unavailing, and the date of the BIA decision is controlling.
Petitioners also claim that their petition for review was mailed in sufficient time, on February 14, 1993, for filing by this Court within the ninety-day period. They allege that a delay occurred in the delivery of the petition to this Court by the United States Postal Service; this delay, they contend, was beyond their control, and therefore the time period for filing should be tolled accordingly.
Petitioners cite Moss v. Immigration and Naturalization Service, 651 F.2d 1091 (5th Cir.1981), in support of their contention that a time period may be tolled by delay beyond a petitioner's control. Moss concerned a provision of the Immigration and Naturalization Act that allows admission for permanent residence of an alien who married a United States citizen within ninety days of entry into the United States; the same section provided for deportation in the event the marriage was not completed within the stated time period. This Court concluded that the ninety-day period was established to ensure that the alien intended "to soon marry upon entrance...
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