Singh v. I.N.S.

• Decision Date: 10 January 2003
• Docket Number: No. 01-71463.,01-71463.
• Citation: 315 F.3d 1186
• Parties: Ram SINGH, aka Singh Ram; Sukhdev Ram, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.3d 1186

Ram SINGH, aka Singh Ram; Sukhdev Ram, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 01-71463.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2002.

Filed January 10, 2003.

Robert B. Jobe, San Francisco, CA, for the petitioner.

Robert D. McCallum, Jr., M. Jocelyn Lopez Wright, Barry J. Pettinato, Audrey B. Hemesath (argued), Office of Immigration Litigation, Washington, DC, for the respondent.

Petition to Review an Order of the Board of Immigration Appeals.

Before STAPLETON,^* O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

STAPLETON, Senior Circuit Judge.

Sukhdev Ram, a.k.a. Ram Singh, ("Petitioner") seeks review of the Board of Immigration Appeals' ("BIA") denial of his petition for asylum and withholding of deportation. He submitted his petition for review after the expiration of the thirty-day period for such filings. The threshold issue is whether we have jurisdiction to entertain his petition. We conclude that we do not and, accordingly, dismiss the petition.

I.

The Immigration and Nationalization Service (the "INS") commenced deportation proceedings in April, 1992, alleging that petitioner was subject to deportation pursuant to INA § 241(a)(1)(B), because he had entered the United States without inspection. The Immigration Judge ("IJ") denied his applications for asylum and withholding of deportation and granted him voluntary departure.

Petitioner filed a timely pro se Notice of Appeal asking for review by the BIA. The form he utilized for this purpose advised him of his right to be represented by counsel, as well as the requirement that a notice of appearance be filed by any counsel secured. Thereafter, petitioner retained counsel, Virender Goswani ("Goswani"). Goswani filed a brief on petitioner's behalf but did not, at any point, file a notice of appearance.

Six years later, on October 4, 2000, the BIA issued its decision affirming the IJ's disposition. In accordance with the notice provision of the rules that is applicable to appeals in which the appellant is proceeding pro se, the BIA's decision was mailed to petitioner's last address of record. Because petitioner had moved from that address, Goswani and petitioner did not receive actual notice of the BIA's decision until August 13, 2001. On September 5, 2001, petitioner filed his petition for review by this court.

II.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") amended the Immigration and Nationality Act to provide that a "petition for judicial review must be filed not later than 30 days after the date of the final order of exclusion or deportation." IIRIRA § 309(c)(4)(C), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656. This provision applies to all final orders of exclusion or deportation entered after October 30, 1996. IIRIRA § 309(c)(4). This time limit is mandatory and jurisdictional, and cannot be tolled. Caruncho v. INS, 68 F.3d 356, 359-60 (9th Cir.1995).

Ninth Circuit case law, as well as that of other circuits, recognizes two situations in which petitions for review arguably filed after expiration of the time limitation may nevertheless confer jurisdiction on a court of appeals. First, "where there has been official misleading [by the court or the BIA] as to the time within which to file a notice of appeal, the late notice may be deemed to have been constructively filed within the jurisdictional limits." Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.1980). Second, the "[t]ime for filing a review petition begins to run when the BIA complies with the terms of federal regulations by mailing its decision to the petitioner's [or his counsel's] address of record." Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (quoting Zaluski v. INS, 37 F.3d 72, 73 (2d Cir.1994) (changes in original)). The rationale for this rule is that "the petitioner should not be penalized for the BIA's failure to comply with the terms of the federal regulations." 94 F.3d at 1259.

III.

Petitioner does not, and could not, claim that anyone associated with the BIA or with this court misled him or his counsel as to the time within which the petition had to be filed. Rather, he relies on Martinez-Serrano and its progeny. He claims that the BIA should have known that petitioner had secured representation and should have sent its decision, in accordance with its rules governing counseled cases, to Goswani's address, rather than to that of petitioner. Because the BIA did not do so, petitioner argues, he had 30 days from August 13, 2001, the date of actual notice to file his petition for review. We are unpersuaded.

8 C.F.R. § 3.1(f) (2000) provides:

(f) Service of Board decisions. The decision of the Board shall be in writing and copies thereof shall be transmitted by the Board to the Service and a copy shall be served upon the alien or party affected as provided in part 292 of this chapter.

8 C.F.R. § 292.5(a) (2000) provides in part:

§ 292.5 Service upon and action by attorney or representative of record.

(a) Representative capacity. Whenever a person is required by any provisions of this chapter to give or be given notice; ... such notice ... shall be given by or to ... the attorney or representative of record, or the person himself if unrepresented.

There is no dispute that petitioner was unrepresented at the time he filed his appeal to the BIA and at the time he received the briefing schedule. It is also undisputed that a person may not become a representative of a party before the BIA without filing a notice of appearance. 8 C.F.R. § 3.38(d) (1994) provides:

In any proceeding before the Board wherein the respondent/applicant is represented, the attorney or representative shall file a notice of appearance on the appropriate form. Withdrawal or substitution of an attorney or representative may be permitted by the Board during proceedings only upon written motion submitted without fee.

Finally, there is no dispute that no notice of appearance form was ever filed with the BIA by anyone on behalf of the petitioner.

Thus, the state of the record before the BIA when it rendered its decision was that there was no counsel of record and petitioner was unrepresented. It follows that, when the BIA sent notice of its decision to petitioner at his last known address, it did exactly what the federal regulations contemplated. Thus, dismissal of the petition by this court would not penalize the petitioner "for the BIA's failure to comply with the terms of the federal regulations" and Martinez-Serrano is inapposite. Martinez-Serrano, 94 F.3d at 1259.

The foundation of petitioner's argument, critical in his view, is the fact that the cover of his brief disclosed that it had been prepared by an attorney named thereon, i.e., Goswani. Petitioner contends that, as a result of this record information, the BIA should have notified either counsel or petitioner that counsel needed to file a notice of appearance and that, in the absence of one, petitioner would be treated as unrepresented. This argument can succeed only if this court is willing to hold that the BIA is not entitled to refuse to recognize a purported representative who has not filed a notice of appearance. This is not the law.

The notice of appearance required by § 3.38(d), now § 3.38(g), serves important purposes. The BIA has a substantial interest in assuring that, at any given time, there is no ambiguity as to who has been given, and who has accepted, the responsibility of representing a party before it. Under the regulations, the notice of appearance constitutes an affirmative representation by the purported representative to the BIA that he or she is qualified to be a representative under the applicable regulations, that he or she has been authorized by the party on whose behalf he or she appears, and that he or she accepts the responsibility of representation until relieved.¹ It also allows the clerk or the computer dispatching notices for the court to scan the docket sheet to determine how to give the required notice correctly, without reviewing all documents in the record. While a petitioner undoubtedly has a statutory and constitutional Due Process right to counsel of his choice, requiring the filing of a notice of appearance does not deprive a petitioner of that right. His chosen representative may become counsel of record simply by filing the appropriate document.

In short, the failure to file a petition for review until ten months after the BIA's decision was rendered was the result of Goswani's having failed to file a notice of appearance, rather than of any impropriety on the part of the BIA. In this respect, the situation before us is analogous to that in Lee v. INS, 685 F.2d 343 (9th Cir.1982). The petitioners there were represented by counsel who had relocated without filing his new address with the BIA. The BIA sent the notice of its decision to counsel's address of record, and it was returned with an indication that counsel had moved. As a result, the petition for review was not filed within the statutory period. This court dismissed the untimely petition, noting that the statutory period was "mandatory and jurisdictional," id., that the BIA had complied with the applicable federal regulations, and that p...