Stone v. I.N.S.

• Decision Date: 06 January 1994
• Docket Number: No. 93-3163,93-3163
• Citation: 13 F.3d 934
• Parties: P Marvin STONE, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 934

13 F.3d 934

1994 Fed.App. 1P

Marvin STONE, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 93-3163.

United States Court of Appeals Sixth Circuit.

Argued Nov. 18, 1993.

Decided Jan. 6, 1994.

Marvin Stone (briefed), pro se.

Robert Kendall, Jr., Lisa Dornell (briefed), U.S. Dept. of Justice, Immigration Litigation, Civ. Div., Washington, DC, Barbara L. Beran, Office of the U.S. Atty., Columbus, OH, for respondent.

Before: NELSON and BATCHELDER, Circuit Judges; and MATIA, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

Marvin Stone, the petitioner in this matter, seeks review of a deportation order that became final more than a year and a half before the petition for review was filed in this court. Under Sec. 106(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a)(1), a petition for review must be filed within 90 days after the date of the final order. The threshold question that we must answer is whether the filing of a motion for reconsideration within the 90-day period stopped the Sec. 106(a)(1) clock from running.

Mr. Stone's deportation order became final in July of 1991. Stone promptly filed a motion asking the Board of Immigration Appeals to reconsider the order, but he did not file a petition for review in this court until March of 1993, after the motion for reconsideration had been denied. We believe that a 1990 amendment to the Immigration and Nationality Act compels the conclusion that a motion to reconsider does not toll the time for seeking judicial review. Mr. Stone's petition was thus untimely insofar as it dealt with the 1991 order.

While we have no jurisdiction to review the underlying deportation order, we do have jurisdiction to determine whether the Board abused its discretion in denying the petitioner's motion to reconsider the order. Finding no abuse of discretion, we shall deny relief.

I

Petitioner Stone, a businessman and sometime lawyer, is a life-long citizen of Canada. A frequent visitor to the United States prior to 1977, ¹ he says that he has resided here continuously since that time--"but not with legal immigration documentation," as he puts it.

On January 3, 1983, Mr. Stone was convicted in a United States District Court on mail fraud charges. His conviction was affirmed on appeal, and he served approximately 18 months of a three-year sentence at a federal correctional institution.

The Immigration and Naturalization Service instituted deportation proceedings against Mr. Stone subsequent to his release from prison. In January of 1988, at the conclusion of a series of hearings before an immigration judge, a deportation order was issued against Mr. Stone on the ground that he had remained in the United States for a longer time than permitted. (Under 8 C.F.R. Sec. 214.2(b), as in effect in 1977, the initial stay in this country of a nonimmigrant business visitor was not supposed to exceed six months; the regulations authorized the granting of extensions in six-month increments, but Mr. Stone testified that he was unaware of the need to apply for an extension. Mr. Stone has remained in the United States for some years now without written authorization.)

The immigration judge also denied an application for suspension of deportation pursuant to Sec. 244(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254(a), which grants authority to suspend deportation of an alien who has been physically present in the United States for at least seven years, who has been of good moral character during that time, and whose deportation would work extreme hardship on him or his family. Because Mr. Stone had been confined to a penal institution for more than 180 days within the seven-year period, the immigration judge concluded, a finding of good moral character was foreclosed by 8 U.S.C. Sec. 1101(f)(7). That section provides, in pertinent part, that "[n]o person shall be regarded as, or found to be, a person of good moral character who ... has been confined, as a result of a conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been convicted were committed within or without such [seven-year] period."

Mr. Stone appealed the immigration judge's order to the Board of Immigration Appeals. In a decision dated July 26, 1991, the Board dismissed the appeal. The order of deportation became final on that date under 8 C.F.R. Sec. 243.1, which provides that "an order of deportation ... shall become final upon dismissal of an appeal by the Board...."

In August of 1991, proceeding pro se, ² Mr. Stone filed with the Board a pleading styled "Motion to Reopen and/or to Reconsider its Decision; Appeal to the Board of Immigration Appeals." The motion did not set forth any "new facts to be proved at [a] reopened hearing," as would have been required for a motion to reopen, and the Board treated the document as solely a motion to reconsider. Neither type of motion could have served to stay the deportation order. See 8 C.F.R. Sec. 3.8, which so provides.

In a short decision dated February 3, 1993, the Board denied the reconsideration motion as frivolous. Mr. Stone filed his petition for review in this court on March 25, 1993.

II

With the enactment in 1961 of the Immigration and Nationality Act, Pub.L. 87-301, 75 Stat. 650, Congress effected a major overhaul of this country's immigration laws. One of the objects of the 1961 legislation was to streamline judicial review of deportation orders. In a section codified at 8 U.S.C. Sec. 1105a, the Act denied the district courts any role in the review process; subject to stated modifications, the procedure for direct review by the courts of appeals (a procedure prescribed by what is now Chapter 158 of Title 28) was made "the sole and exclusive procedure" for obtaining judicial review of final orders of deportation. 8 U.S.C. Sec. 1105a(a). The "fundamental purpose" of Sec. 1105a was "to abbreviate the process of judicial review ... in order to frustrate certain practices ... whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Foti v. I.N.S., 375 U.S. 217, 224, 84 S.Ct. 306, 311, 11 L.Ed.2d 281 (1963).

Under Sec. 1105a(a)(1), as originally enacted, persons against whom deportation orders were issued were given up to six months within which to seek appellate court review. In the Immigration Act of 1990, Pub.L. 101-649, 104 Stat. 4978, however, that period was reduced to 90 days for aliens who had not been convicted of aggravated felonies. In the case of an alien convicted of an aggravated felony, the filing period was cut to 30 days. 8 U.S.C. Sec. 1105a(a)(1), as amended by Pub.L. 101-649, Sec. 502(a).

Prior to 1990 a split of authority had developed among the circuits as to whether the filing of a motion to reopen or reconsider a final order of deportation operated to extend the time for seeking judicial review. In an opinion issued in 1986, Nocon v. I.N.S., 789 F.2d 1028, 1033 (3rd Cir.1986), the Court of Appeals for the Third Circuit rejected the contention that the filing of a motion to reopen or reconsider a final deportation order suspends the statutory time limit on seeking judicial review. "[T]o hold otherwise," the court said, "would defeat the purpose of [a] statute [that] ... was designed to prevent undue delay in deportation once the alien's immigration status had been decided." Id. (internal quotations and citation omitted). ³ The court acknowledged that its approach was at odds with the approach of other courts of appeals, id. at 1031, citing Bregman v. I.N.S., 351 F.2d 401 (9th Cir.1965), and 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), ⁴ but the Third Circuit declined to accept the rationale of those cases.

The Ninth Circuit's rationale reflects that court's understanding of the logic implicit in Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), a one-sentence per curiam opinion in which the Supreme Court reversed a Ninth Circuit decision reported at 308 F.2d 347 (1962). A deportation order against Mr. Giova had become final on September 15, 1957. Mr. Giova moved to reopen the proceedings before the Board of Immigration Appeals, and his motion was denied on November 3, 1961. He then sought judicial review of the denial of the motion to reopen, but did not appeal from the underlying order of deportation. The Court of Appeals dismissed the matter for want of jurisdiction, but the Supreme Court reversed the dismissal and remanded the case with directions to entertain the petition for review.

It is clear that Mr. Giova's petition for review dealt only with the denial of his motion to reopen and not with the deportation order itself. See 308 F.2d at 348. In Bregman, 351 F.2d 401, however, the Ninth Circuit reasoned that the Supreme Court had interpreted the reference in Sec. 1105a(a) to "all final orders of deportation" as including denials of motions to reopen. It followed from this, in the Ninth Circuit's view, "that if the motion to reopen before the Board is within six months of the final order of deportation and the petition to this court is within six months of the denial of the motion ... this court has jurisdiction to review both the final order of deportation and the denial of the motion to reopen." Id. at 402. In other words, as the Ninth Circuit suggested in a subsequent opinion, "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review...." Yamada v. I.N.S., 384 F.2d 214, 218 (9th Cir.1967). Support for this view--which is consistent with the argument that the Solicitor General presented to the Supreme Court in Giova--was said to be found in the concern expressed by a...