Matter of Escobar
| Citation | 18 I&N Dec. 412 |
| Decision Date | 28 June 1983 |
| Docket Number | Interim Decision Number 2944,A-26365952 |
| Parties | MATTER OF ESCOBAR In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) The regulations provide that an alien shall have 10 days within which to perfect an appeal from a decision of an immigration judge. 8 C.F.R. 242.21. The procedures for computing the period of time for taking an appeal are silent as to the effect of the last day of an appeal period falling on a Saturday. 8 C.F.R. 1.1(h).
(2) The Service's interpretation of this ambiguity would have the effect of shortening the period under 8 C.F.R. 242.21 within which an alien could take an appeal. Absent a showing that the Service's offices are open on Saturdays, there is no legitimate distinction between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect his appeal.
(3) Consistent with the Congressional authorization and approval manifested in Rule 6(a), Fed. R. Civ. P., and the principle of fairness, the last day of an appeal shall be included, in computing the appeal period, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
(4) Where the respondent conceded deportability at his hearing and does not contest that finding on appeal, has not shown eligibility for voluntary departure, and specifically declined to apply for asylum, he has not shown that he was prejudiced by the absence of counsel or that he was denied a full and fair hearing as required by due process.
(5) The respondent's motion to reopen for the purpose of applying for asylum will be denied where he has not reasonably explained his failure to assert the claim prior to the completion of the deportation hearing and where prima facie eligibility for the requested relief has not been established.
The respondent appeals from the May 4, 1983, summary decision of the immigration judge, finding him deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S. C. 1251(a)(2), and ordering his deportation to El Salvador. During the pendency of the appeal, the respondent filed a motion to reopen for the purpose of applying for asylum. See 8 C.F.R. 208.11. The motion will be denied and the appeal dismissed.
The respondent is a 40-year-old native and citizen of El Salvador. He entered the United States without inspection on March 2, 1983. At his deportation hearing the respondent admitted the factual allegations, conceded deportability, and informed the immigration judge that he did not wish to apply for asylum.
Before reaching the merits of the respondent's appeal we must address an initial question of our jurisdiction over this matter. The Servicé contends that the respondent's appeal was not timely filed, that the immigration judge's decision is, therefore, administratively final, and that as a result this Board lacks jurisdiction to hear the appeal. The Service argues correctly that an appeal, in order to be timely, must be taken within 10 days after an immigration judge renders a decision, and that failure to do so results in the decision becoming administratively final. See 8 C.F.R. 3.3, 242.21, and 243.1. The Service concludes that as the respondent's appeal period ended on Saturday, May 14, 1983, in order to perfect his appeal he was required to file his Notice of Appeal (Form I-290A) by the close of business on Friday, May 13, 1983. This conclusion is based on the Service's interpretation of 8 C.F.R. 1.1(h)1 that when the last day of the appeal period falls on a Saturday that day is included in computing the 10 day appeal period. We do not agree with this interpretation.
We note that the language of 8 C.F.R. 1.1(h) tracks the language contained in Rule 6(a) of the Federal Rules of Civil Procedure prior to that rule's amendment in 1963.2 Rule 6(a) was amended in 1963 to bring it into conformity with the amendment of Rule 77(c), deleting Saturday as a day in which the clerk's office was to be open during business hours. Rule 6(a) now provides:
In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The amended language clearly reflects Congress' intent not to include as the last day of an appeal period a day in which the clerk's office is not open for business.
The regulations provide that an alien shall have 10 days within which to perfect an appeal from a decision of an immigration judge. 8 C.F.R. 242.21. The procedures outlined in 8 C.F.R. 1.1(h) for computing the period of time for taking an appeal are silent as to the effect of the last day of an appeal period falling on a Saturday. The Service's interpretation of this ambiguity would have the effect of shortening the period under 8 C.F.R. 242.21 within which an alien could take an appeal. Absent a showing that the Service's offices are open on Saturdays, there is no legitimate distinction between Saturdays, Sundays and legal holidays with regard to an alien's ability to perfect his appeal. We decline, therefore, to adopt the Service's interpretation of 8 C.F.R. 1.1(h). We defer, instead, to the Congressional authorization and approval manifested in Rule 6(a), Fed. R. Civ. P., and the interest of fairness in holding that in computing the period of time under 8 C.F.R. 1.1(h) for taking an appeal, the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
In the present case, the respondent's appeal period ended on Saturday, May 14, 1983. He filed his Notice of Appeal with the Service's San Francisco office on Monday, May 16, 1983, that office apparently not being open on Saturday. We conclude, pursuant to our interpretation of 8 C.F.R. 1.1(h), that the respondent's appeal was timely filed and that we may properly exercise our jurisdiction over this matter. See 8 C.F.R. 3.1(b)(2).
On appeal, the respondent contends that the immigration judge should have granted him voluntary departure and that he was denied his right to effective assistance to counsel. The appeal is without merit.
The respondent freely conceded his deportability for entry without inspection under section 241(a)(2) of the Act and does not now contest that finding. His deportability has been established by evidence which is clear, convincing, and unequivocal as required by Woodby v. INS, 385 U.S. 276 (1966). Furthermore, we find no indication in the record or in the respondent's brief and supporting documents on appeal that he requested or was eligible for voluntary departure. There has been no showing that the respondent had the available funds and the immediate means with which to depart promptly from the United States as required by the regulations. 8 C.F.R. 244.1. Accordingly, there is no basis to conclude that the respondent was improperly denied voluntary departure.
Nor is there any basis to conclude that the respondent was denied his right to counsel or that he was prejudiced by the absence of counsel at his deportation hearing. Respondent's counsel states on appeal that he is informed that the respondent waived his right to counsel. There is no evidence in the record and none submitted by the respondent on appeal that his waiver was not competently, understandingly, and voluntarily made. The requirements of due process under the Fifth Amendment are satisfied by a full and fair hearing. Ramirez v. INS, 550 F.2d 560 (9 Cir.1977). An alien has been denied a full and fair hearing as required by due process only if the matter complained of causes the alien to suffer some prejuduce. Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979). The respondent has not shown that he was prejudiced by the absence of counsel at his deportation hearing. The respondent conceded his deportability for entry without inspection and does not contest his deportability on appeal. He has not shown that he was statutorily eligible for voluntary departure and specifically informed the immigration judge that he did not wish to apply for asylum.
The only remaining issue to be decided is the respondent's motion to reopen for the purpose of applying for asylum and...
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