Sewak v. I.N.S.

Decision Date26 June 1990
Docket NumberNo. 89-3531,89-3531
Citation900 F.2d 667
PartiesTameshwar SEWAK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Irving Edelman (argued), New York City, for petitioner.

Joan K. Garner, U.S. Attorney's Office, Philadelphia, Pa., and Mark C. Walters, Joseph F. Ciolino, Steven L. Barrios (argued) Before SLOVITER, HUTCHINSON and COWEN, Circuit Judges.

Office of Immigration Litigation, Washington, D.C., for respondent.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Petitioner Tameshwar Sewak (Sewak) seeks review of a final order of the Board of Immigration Appeals (BIA) upholding an immigration judge's deportation order. The immigration judge's order was entered in absentia and directed Sewak's return to his country of origin, Guyana. Sewak claims that he did not receive notice of his deportation hearing before the immigration judge, in violation of his constitutional right to due process and his statutory right to a "reasonable opportunity to be present" at his own deportation hearing.

Instead, Sewak states, the Immigration and Naturalization Service (INS) notified only an attorney who had entered an unauthorized written appearance for Sewak in the proceeding. Sewak claims that he did not know of this attorney's unauthorized entry of appearance, that he never had any contact with the attorney and that the attorney never informed him of the deportation hearing. The record shows that no one appeared at the deportation hearing on Sewak's behalf. Sewak contends that he and his real attorney had no opportunity to attend the hearing and present Sewak's side of the case.

Because of this case's procedural posture, the record before us lacks the evidence necessary to decide the merits of Sewak's petition. However, if the facts that Sewak asserts are true, then the immigration judge's entry in absentia of an order to deport Sewak implicates both his constitutional right to due process and his statutory right to a "reasonable opportunity to be present" at the hearing. We will therefore grant Sewak's petition for review and remand this matter to the BIA with instructions that it in turn remand the proceeding to the immigration court for consideration of Sewak's motion to reopen his deportation proceeding.

I.

On April 3, 1986, Sewak entered the United States through a crossing near Laredo, Texas, linking this country with Mexico. According to Sewak, immigration officials at the border assumed he was a Mexican visiting this country on a shopping trip. As a result, he was allowed to enter the country without undergoing immigration inspection. One hundred miles from the border, a border patrol agent stopped Sewak and detained him for having entered the country without inspection. Sewak was taken to Houston, Texas, questioned and given an order to show cause why he should not be deported.

The order, issued on April 4, 1986, informed Sewak that his deportation hearing would be held at a "DATE, TIME AND PLACE TO BE SET." Petitioner's Appendix (App.) at A-2. It charged Sewak with having violated 8 U.S.C.A. Sec. 1251(a)(2) (West 1970), which states, in relevant part:

(a) Any alien in the United States ... shall, upon the order of the Attorney General, be deported who--

(2) entered the United States without inspection....

On April 10, 1986, an attorney named Tom Brashier (Brashier) filed a written appearance on behalf of Sewak in the immigration court, using INS form G-28. See App. at A-3. On the form, Brashier stated that he was an attorney admitted to practice before the Supreme Court of Texas. The form also contained Sewak's name, file number and an address for Sewak in Bronx, New York. INS form G-28 has a space for the client to sign and consent to the INS's release of documents to the attorney. 1 No one had signed the G-28 that Brashier submitted. See id.

Sewak was released from INS custody on April 16, 1986, when a resident of Jersey City, New Jersey, posted Sewak's $4,500 bond. See id. at A-4. The INS on that date sent the bond's obligor a "Notice to Deliver Alien," informing her that she could forfeit her bond if she failed to surrender Sewak at his deportation hearing. See id. at A-5. The Notice to Deliver stated that the time, date and location of the deportation hearing still remained to be set. See id. Also on April 16, 1986, Sewak gave the INS notice that his mailing address would be the same as his bond obligor's, in Jersey City, New Jersey. See id.

On May 14, 1986, the INS sent notice to Brashier that Sewak's deportation proceeding had been scheduled. See id. at A-6. The INS does not dispute Sewak's assertion that no notice was sent to him or to the obligor on his bond. The notice to Brashier informed him that deportation proceedings would commence against Sewak on July 29, 1986, before Immigration Judge Robert Brown in Houston, Texas. The notice stated that Sewak's failure to appear could result in forfeiture of his bond, a hearing in his absence, entry of an order of deportation against him in absentia and issuance of a warrant for his arrest. See id.

The hearing took place as scheduled on July 29, 1986. Neither Sewak nor Brashier was present. No one presented any evidence on behalf of Sewak. On that date, Immigration Judge Michael Suarez found Sewak deportable as charged in the order to show cause and ordered Sewak deported to Guyana. See id. at A-7.

Sewak claims that he did not learn of the deportation hearing until he received in the mail a copy of the decision and order of the immigration judge finding him deportable in absentia. Instead of moving to reopen proceedings in the immigration court, 2 Sewak appealed the order of deportation to the BIA sometime in August of 1987. See id. at A-9. 3 In his brief in support of the appeal, Sewak stated that he never received notice of his deportation hearing and thus was prevented from introducing evidence in his favor and examining the witnesses and other evidence that the INS had put forth in support of its case.

While Sewak's appeal was pending before the BIA, the INS notified Sewak that it had arranged to have him deported from Houston, Texas, to Guyana on September 16, 1987. See id. at A-13. Sewak filed a motion seeking an emergency stay of deportation in the immigration court. Immigration Judge Robert Brown issued a stay in favor of Sewak on the day he was due to be deported, continuing until the BIA ruled on his appeal. See id. at A-14. 4

The BIA treated Sewak's appeal as a request for a new hearing before the immigration court. See id. at A-15. Finding Sewak's appeal was not filed in a timely manner, the BIA nevertheless reviewed the merits of his appeal on certification. See 8 C.F.R. Sec. 3.1(c) (1989). 5 The Board decided Sewak's case on what seem to be alternate grounds. First, it found that notice to Brashier was reasonable notice to Sewak and that the immigration judge properly conducted the deportation hearing in Sewak's absence. 6 Then, applying what appears to be a harmless error analysis, the BIA concluded that Sewak, in his appeal, did not dispute that he was deportable and did not raise any valid defense to deportation. 7 See App. at A-15. Sewak filed a timely petition with this Court seeking review of the BIA's final order of deportation.

II.

We have jurisdiction over this petition for review of the BIA's final order of deportation pursuant to 8 U.S.C.A. Sec. 1105a(a)(1) (West Supp.1989). As already noted, the BIA reviewed this matter on certification since it found that Sewak's appeal to it was filed out of time. The immigration court's authority to order Sewak deported to Guyana is based on 8 U.S.C.A. Sec. 1252(b) (West Supp.1989) and 8 C.F.R. Sec. 242.8(a) (1989).

The Immigration and Nationality Act provides that "[a]n order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations." 8 U.S.C.A. Sec. 1105a(c) (West 1970). In Alleyne v. United States INS, 879 F.2d 1177, 1183-84 & n. 10 (3d Cir.1989), we recognized that the exhaustion of administrative remedies is not always required when the petitioner advances a due process claim. See Vargas v. United States Dep't of Immigration & Naturalization, 831 F.2d 906, 908 (9th Cir.1987) ("due process claims generally are exempt from [the exhaustion requirement] because the BIA does not have jurisdiction to adjudicate constitutional issues"). But here, as in Alleyne and Vargas, Sewak's due process claim amounts to a procedural error correctable through the administrative process. Thus, before we can consider Sewak's petition, we must assure ourselves that he has exhausted his administrative remedies.

We have said that our jurisdiction over petitions to review INS orders depends upon the alien's exhaustion of "the administrative remedies available to him as of right." See Bak v. United States INS, 682 F.2d 441, 442-43 (3d Cir.1982) (per curiam) (holding exhaustion requirement is jurisdictional); Jacobe v. INS, 578 F.2d 42, 44 (3d Cir.1978) (same). Sewak raised before the BIA, and the BIA considered, the same issues he raises in his petition for review in this Court. 8 It cannot be denied that Sewak has exhausted his remedy of appeal to the BIA. Cf. Alleyne, 879 F.2d at 1182 (Sec. 1105a(c) "bars consideration of particular questions not raised in an appeal to the Board"). The question remains, however, whether Sewak failed to exhaust his administrative remedies as Sec. 1105a(c) requires because he did not exercise his procedural "right" to file a motion to reopen in the immigration court asking it to exercise the discretion it has to grant the relief he seeks. 9

Ordinarily, Sewak first could have sought reopening in the immigration court on the basis of newly discovered evidence instead of appealing its...

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