Nowak v. I.N.S.

• Decision Date: 30 August 1996
• Docket Number: No. 96-2163,96-2163
• Citation: 94 F.3d 390
• Parties: Stanislaw NOWAK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 390

94 F.3d 390

Stanislaw NOWAK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-2163.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 7, 1996.

Decided Aug. 30, 1996.

Royal F. Berg (argued), Chicago, IL, for Petitioner.

Janet Reno, U.S. Attorney General, Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, Brian Perryman, Immigration & Naturalization Service, Chicago, IL, Philemina Jones, Stephen W. Funk (argued), Laura M. Friedman, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Stanislaw Nowak entered the United States in 1987 as a visitor for pleasure. When his visa expired he neither left nor applied for an extension. Instead he kept his head low until he was caught, and then he asked for asylum. Nowak's theory was that he had been, and would continue to be, persecuted in his native Poland for assisting the Solidarity labor union. In August 1989, a year before an immigration judge denied Nowak's request for asylum, Tadeusz Mazowiecki, a leader of Solidarity, became Poland's prime minister. In December 1990 Lech Walesa, the head of Solidarity, was elected the nation's president. Despite these developments, Nowak took an administrative appeal. After waiting four years for Nowak's lawyer to file a brief, the Board of Immigration Appeals dismissed the appeal for want of prosecution. Two years later, represented by new counsel, Nowak filed a petition for judicial review, arguing that the Board should have decided the appeal on the merits notwithstanding the lack of a brief. Nowak also filed a motion to reopen before the Board and asks us to defer consideration of the petition for review until the Board acts. That step would indefinitely extend the automatic stay of deportation under 8 U.S.C. § 1105a(a)(3).

Immigration cases move at a snail's pace. We cannot fathom why the Board dawdled four years before dismissing Nowak's appeal, or why the INS permitted Nowak to remain in the United States two years thereafter when no petition for review had been filed. (Nowak filed the petition for review only after he had been taken into custody as a prelude to deportation.) People have but one life to live, and they are entitled to know as quickly as possible where they must live it. Nowak must have made many decisions since the immigration judge ordered him deported that will make readjustment to Poland more difficult. Uncertainty affects decisions about education, marriage, and employment, not only for the alien but also for the alien's family. Nowak now has a son who is a U.S. citizen. We will not contribute to the delay by postponing consideration of the petition for review. It may be that the INS will whisk Nowak from the United States if we deny the petition, but that is a lawful consequence of an order of deportation. Nowak may, or may not, have grounds for a stay of deportation while the Board considers his current petition. Any request for a stay should be determined under the criteria that govern that question; it is altogether inappropriate to preempt the subject by continuing an automatic stay of deportation that is linked to review of the original order. There is no limit to the number of petitions to reopen an alien may file. Often they are filed for no reason other than delay--and many more would be filed for that reason if courts rewarded them with automatic, and indefinite, stays of deportation. We shall proceed to decision.

Under 8 U.S.C. § 1105a(a)(1) an alien has "90 days after the date of the issuance of the final deportation order" to file a petition for review. Nowak took 701 days. He even waited 36 days after being taken into custody, until the eve of his outbound flight. His excuse is that his former attorney, Walter Zarnecki, did not receive a copy of the Board's final order. Nowak blames the Postal Service, although all Zarnecki's affidavit actually says is that he was unaware of the Board's decision and could not locate a copy in his files. That may be Zarnecki's problem rather than the Postal Service's. He was not exactly attentive to Nowak's case and must have lost Nowak's entire file; how else could he fail to file a brief for four years? But let us assume that Zarnecki never received notice. The statute does not start the 90 days from the time notice is sent or received. Time runs from "the date of the issuance of the final deportation order". Stone v. INS, --- U.S. ----, ----, 115 S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995), says that § 1105a(a)(1) is among the "jurisdictional" rules that "must be construed with strict fidelity to their terms" and that are "not subject to equitable tolling." See also Fed. R.App. P. 26(b), which forbids any extension of the time to seek review of an administrative order, unless a statute expressly authorizes that step. No statute provides that authority for immigration cases.

What this means is that aliens who distrust the Postal Service must check with the Board every so often, just as litigants in district court must check periodically with the clerk given Fed.R.Civ.P. 77(d), which provides: "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." The "except" clause refers to Rule 4(a)(6), under which a district court may extend the time for appeal in...