Newton v. Immigration and Naturalization Service
| Decision Date | 17 June 1980 |
| Docket Number | No. 80-1172,80-1172 |
| Parties | Cedric NEWTON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
J. Steven Xanthopoulos, Legal Services of the V. I., Fredericksted, St. Croix, V. I., argued, for petitioner.
Chester J. Halicki, Atty., Dept. of Justice, Washington, D. C., with whom James B. Morris, Atty., Gen. Litigation and Legal Advice Section, Criminal Division, Washington, D. C., was on brief, argued for respondent.
Before ADAMS, MARIS and SLOVITER, Circuit Judges.
This is a petition to review an order of the Board of Immigration Appeals dismissing the appeal of Cedric Newton from an order for his deportation previously issued by an immigration judge. Pursuant to the order of the Board, a warrant of deportation was issued and on December 27, 1979, Newton was deported. The government urges that the petition was untimely, having been filed after Newton's deportation had been effected, and that it should, therefore, be dismissed for lack of jurisdiction.
Cedric Newton, on whose behalf the petition for review was filed, is a native of St. Kitts and a citizen of that associated British state. He first entered the United States in 1959 at the age of seven as the child of a nonimmigrant alien worker under 8 U.S.C.A. § 1101 (a)(15)(H)(ii). He remained in the United States Virgin Islands and on July 27, 1973, he married a United States citizen. As a result, he was able to enter the United States on June 25, 1974, with an immigration visa for permanent residence. On July 2, 1975, he was convicted in the District Court of the Virgin Islands of the offense of grand larceny and sentenced to imprisonment for ten years, later reduced to three. His conviction was affirmed on appeal by this court. His citizen wife divorced him while he was in prison.
On April 29, 1976, the Immigration and Naturalization Service (herein INS) issued an order to Newton to show cause why he should not be deported because of his conviction of a crime involving moral turpitude within five years of his entry upon which a sentence to imprisonment of a year or more had been imposed. Three sessions of deportation hearings were held before immigration judges. At the first two sessions Newton was represented by Russell B. Johnson, and at the third by Patricia M. Fron of the Legal Services of the Virgin Islands, each of whom in turn entered an appearance as counsel for Newton. Following the hearings, the immigration judge found Newton deportable and statutorily ineligible for either relief under 8 U.S.C.A. § 1182(c) or for the privilege of voluntary departure in lieu of deportation under 8 U.S.C.A. § 1254(e). Accordingly, deportation was ordered and the Board of Immigration Appeals dismissed a subsequent appeal taken on Newton's behalf by Miss Fron. During the pendency of the appeal, Miss Fron left the Legal Services of the Virgin Islands although she did not withdraw her appearance for Newton and J. Steven Xanthopoulos of that agency entered an appearance for Newton.
Newton was notified to report to the INS on December 27, 1979, for deportation. A copy of the notification was sent to Mr. Johnson who had originally appeared for Newton and whose appearance had not been withdrawn. Ostensibly because their forms for entry of appearance were not fully filled out and Mr. Johnson's appearance had not been withdrawn, copies of the notice were not sent to Miss Fron or Mr. Xanthopoulos. On the date fixed, December 27, 1979, Newton appeared at the office of the INS accompanied by...
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