Nocon v. I.N.S.

• Decision Date: 19 March 1986
• Docket Number: No. 85-3375,85-3375
• Citation: 789 F.2d 1028
• Parties: Edgardo NOCON and Charito Nocon, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Submitted Pursuant to Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1028

789 F.2d 1028

54 USLW 2585

Edgardo NOCON and Charito Nocon, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-3375.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit

Rule 12(6) March 19, 1986.

Decided May 5, 1986.

Charlo E. Almeda, Jersey City, N.J., for petitioners.

Alexander Ewing, Jr., Asst. U.S. Atty., Philadelphia, Pa., Robert Kendall, Jr., James A. Hunolt, Allen W. Hausman, Linda S. Wendtland, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for respondent.

Before HUNTER, MANSMANN, Circuit Judges and McCUNE, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this petition for review we consider two questions: whether The Board of Immigration Appeals (BIA) abused its discretion in denying the petitioners' motion for reconsideration and whether the petitioners' failure to file timely a petition for review within six months of the final deportation order pursuant to 8 U.S.C. Sec. 1105a(a)(1), though filing a timely motion for reconsideration with the BIA, bars our appellate review of the original final deportation order. This second question, involving a timeliness problem under the Immigration and Nationality Act, 8 U.S.C. Sec. 1101 et seq., presents for us an issue of first impression and constitutes the real crux of the appeal before us. Finding no abuse of discretion with regard to the Board's handling of the motion to reconsider and concluding that we have no jurisdiction to review the original deportation order, we will deny the petition for review.

I. The Case Before the BIA

The petitioners Edgardo Nocon and Charito Nocon are natives and citizens of the Philippines who entered the United States on February 20, 1980, as non-immigrant visitors for pleasure with permission to remain until March 31, 1980. This departure date was subsequently extended until June 11, 1980. When they failed to depart, the petitioners were summoned to a deportation hearing which commenced before an Immigration Judge on November 18, 1981. After a lengthy continuance, the hearing resumed on January 28, 1983 with additional evidence being offered on May 27, 1983 and June 20, 1983. The petitioners' counsel conceded deportability and submitted applications for asylum pursuant to 8 U.S.C. Sec. 1158(a), and for the withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h). The Judge admitted into the hearing record an advisory opinion letter from the State Department counseling against the grant of asylum.

Following testimony by the petitioners and their witnesses to the effect that the petitioners would be arrested and persecuted under the Marcos regime if they returned to the Philippines because of their political affiliations, the Immigration Judge denied the requests for asylum and for the withholding of deportation on June 20, 1983. In his decision, the Judge concluded that the participation of the petitioners in political activity was "quite minimal", and was "basically in the nature of observing." The Judge further wrote that, "The Court is satisfied that neither of the (petitioners) have established that his life or freedom would be threatened in the Philippines on account of race, religion, nationality, membership in a particular social group, or because of political opinion." The Judge then found both the petitioners to be deportable and granted them voluntary departure within thirty days.

On June 23, 1983, the petitioners filed an appeal to the BIA, which affirmed the denials of asylum and the withholding of deportation on October 11, 1984. Subsequently, on October 24, 1984, the petitioners moved to have the BIA reconsider its October 11, 1984 decision and offered three grounds: namely, 1) that they were the beneficiaries of a fourth preference visa petition; ¹ 2) that because a Philippine fourth preference visa had only a fourteen month waiting period, they would ask the BIA to withhold deportation and grant a one year voluntary departure; and 3) that there had not been a proper adjudication of the asylum petitions. This motion to reconsider was denied on April 30, 1985, on the grounds that neither the Immigration Judge nor the Board had the authority to grant extended voluntary departure and that the motion failed to state reasons for reconsideration or to cite pertinent precedent in compliance with 8 C.F.R. Sec. 103.5 (1985). ²

On July 10, 1985, the petitioners filed a petition for review in the Court of Appeals, seeking review not only of the Board's April 30, 1985 order denying their motion for reconsideration, but also of the original final order of the BIA dated October 11, 1984 which affirmed the Immigration Judge's June 20, 1983 denial of their request for asylum and for the withholding of deportation. Because the petitioners are primarily interested in a review of the final deportation order, we turn to this issue first.

II. Jurisdictional Issue

In their petition for review the petitioners ask us to examine the Board's substantive denial of both asylum and of the withholding of deportation which was finalized in an order dated October 11, 1984. Given the governing statutory directive concerning the appropriate time for filing petitions for review and the applicable dates involved in this case, we are presented with a timeliness problem.

Under the Immigration and Nationality Act, once a final order of deportation has been issued, an alien has six months to file a petition for review of that order in a Court of Appeals. Specifically, the statute provides:

(1) a petition for review may be filed not later than six months from the date of the final deportation order or from the effective date of this section, whichever is the later.

8 U.S.C. Sec. 1105a(a)(1).

In this case, the petition for review was filed almost nine months after the final deportation order had been issued. After the final order of deportation was rendered, however, the petitioners filed with the Board a motion to reconsider on October 24, 1984, which was denied by the Board on April 30, 1985. We must decide whether this motion for reconsideration, which was filed within six months of the date of the final deportation order, stops the running of the six months' appeal period as outlined in 8 U.S.C. Sec. 1105a(a)(1) until the motion is denied or the proceedings have been effectively terminated.

Because this precise question is not covered by the Congressional statute nor directly addressed in legislative history or in prior decisions of our court, we turn to the approach of other courts of appeals. In essence, the petitioners urge us to review the underlying deportation order consistent with the "flexible interpretation" of this timeliness question set forth by the Court of Appeals for the Ninth Circuit in Bregman v. Immigration and Naturalization Service, 351 F.2d 401 (9th Cir.1965). In Bregman, the Court of Appeals held that the six month limitation period for seeking review of final orders of deportation under 8 U.S.C. Sec. 1105a(a)(1) is suspended when the alien files a motion to reopen before the Board within six months of the final order of deportation and the petition for review to the Court of Appeals is within six months of the denial of that motion.

Under the Bregman analysis, when this procedure is followed, the Court of Appeals has jurisdiction to review both the original final order of deportation and the denial of the motion to reopen. The same result obtains where a motion for reconsideration is filed by the alien within six months of the final deportation order, and the alien files his petition for review in the Court of Appeals within six months of the Board order disposing of the reconsideration motion. Hyun Joon Chung v. I.N.S., 720 F.2d 1471 (9th Cir.), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984). This position, according to the Court of Appeals for the Ninth Circuit, is "in keeping with the intention of Congress to create a process in which there was a single judicial review of all questions relating to an alien's deportation." Id. at 1474. ³

We reject the position and rationale of the Court of Appeals for the Ninth Circuit, and although we have not directly considered the issue previously, prior decisions of our court are instructive. In a concurring opinion in Bufalino v. Immigration and Naturalization Service, 473 F.2d 728 (3d Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973), Judge Adams, discussing the extent of the Court's jurisdiction with regard to a petition for review of a final deportation order, wrote:

Jurisdiction is here limited by 8 U.S.C. Sec. 1105a(a)(1): 'a petition for review may be filed not later than six months from the date of the final deportation order....' Although we may review judgments on motions to reopen, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), the right to appeal from an order of deportation is extinguished when the six-month period expires and is not revived by proceedings on a motion to reopen.

In Garcia v. Immigration and Naturalization Service, 690 F.2d 349 (3d Cir.1982), the alien had not filed a timely petition for review from either the original deportation order or the order denying the motion to reopen. ⁴ The alien had, however, moved the Board to reopen his case within three months of the original deportation order. Concluding that we lacked jurisdiction under these circumstances to review any of the decisions in the case, we wrote:

[O]nly those orders issued within the six month time limit can be reviewed by a court of appeals. Timely filing as to one order does not vest this court with jurisdiction to hear 'stale' challenges. Chudshevid v. I.N.S., 641 F.2d 780 (9th Cir.1981); Bufalino v. I.N.S., 473 F.2d 728 (3d Cir.1973) (Adams, J., concurring). To hold otherwise would defeat the purpose of the statute. Congress enacted the 6-month provision specifically to prevent the...