Beruflich Dokumente
Kultur Dokumente
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Nos. 91-2113
93-1420
GILBERTO E. GARCIA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Island, Inc., was on brief for petitioner.
____________
Charles
E.
Pazar,
Attorney,
Office
of Immigration
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Litigation, Civil Division, Department of Justice, with whom
Frank W. Hunger, Assistant Attorney General, and Robert Kendall,
_______________
_______________
Jr., Assistant Director, were on brief for respondent.
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____________________
____________________
Per
Curiam.
____________
decisions
of
Petitioner
the Board
ordering deportation
of
Gilberto
Immigration
and refusing
Garc a
contests
Appeals (the
"Board")
to reopen and
reconsider his
case.
Petitioner
Republic.
States
citizen of
the Dominican
in the United
since
1979.
is a
native and
On August
19,
1988, the
petitioner,
241(a)(11) of
alleging
the Immigration
Immigration and
deportation proceedings
his deportability
and Nationality Act
under
section
(the "Act"),
8 U.S.C.
1251(a)(11), as
substance
violation
February 27,
as
an alien
(cocaine).
1989,1 petitioner
At
convicted of
a
a controlled
deportation hearing
conceded that he
an opportunity to
was deportable
file an application
1182(c).
a hearing
on
See
___
on the merits
file his
received
notice
September
27.
that
his
hearing
16.
directed petitioner to
On
had
June 6, petitioner
been
rescheduled
to
deadline.
On
application
September
by paying
14,
the
petitioner
application fee
filed
his
at the
212(c)
Providence,
Massachusetts on
____________________
1
September 15.
On
September
18,
the
immigration
judge
ordered
written
application for
relief.
The
Board
affirmed the
the merits.
application
during
He asserts that
on
June 16
the February
because
days
prior
Because
filed
the
immigration judge
As a result,
by sending the
postponed
a hearing
the application
the hearing.
the deadline
to the
27 hearing that
hearing
stated
should be
his attorney
application thirteen
date
of
September
28.
had
September 18.
immigration
been
filed
when
he
ordered
believed
the relevant
stated that
no
deportation
on
was
deportation because
14.
Petitioner
because the
attorney's error
(not
finally
application was
petitioner's) and
urges
remand
that
no
is
to the
prejudice
Board
"set
regulations
authorize an
C.F.R.
3.31(c)
(1993).
Id.
___
clearly states
Since
judge to
filing of applications."
Applications
immigration
not
timely filed
are
and we agree,
was to
not filed
be
until
September 14, the Board found the application waived and affirmed
the immigration judge's deportation order.
to the
September 18
i.e., that the immigration judge also thought the application due
only ten days before
plain
evidence
Perhaps, for
in the
record that
example, the
the
light of the
deadline was
June 16.
not issue
the
we can
review.
the
only speculate, a
procedure contrary
to appellate
fault of
counsel rather
than the
client, and
clients are
bound
by the conduct of
v. INS, 783
___
their attorneys.
See Magallanes-Dami n
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____________________
the client.
prejudice
has
substantially
eligibility
Board's
Finally,
occurred,
delayed
for
these
212(c) application
record, we affirm
appellate
petitioner's
deportation
factual finding
while petitioner
that
is supported
proceedings
deportation
under
contends no
despite
241(a)(11).
petitioner untimely
his
Since
the
filed his
by substantial evidence
have
in the
deportation order.
See Gouveia v. INS, 980 F.2d 814, 818 (1st Cir. 1992) ("[A] court
___ _______
___
must accept the
are
supported
omitted).
evidence
. .
so long as
.")
they
(citations
II
II
The authority of the Board
reopen
deportation
regulations
promulgated
proceeding
by
Doherty,
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471 U.S.
the
Attorney
solely
General."
to
from
INS
___
v.
INS v. R o-Pineda,
___
__________
A motion to reopen
or reconsider a
unavailable or identifies
law.
See 8
___
C.F.R.
disfavored.
See
___
a change
3.2;3
As a general
Doherty, 112 S.
_______
____________________
3 8 C.F.R.
3.2 specifies that "[m]otions to reopen deportation
proceedings shall not be granted unless it appears to the Board
that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing." Id.
___
-5-
Ct.
at
724.
The
decision
whether
to
reopen a
deportation
In the past we
have held
policies, or
as invidious
group.'"
F.2d
discrimination against
appropriate where
issue
rested on an
because whether
Board's discretion
humane" factors.
Under
unassailable.
and
This
waiver is
under
granted is
on
race or
INS, 715
___
standard is particularly
deportation
depends
a particular
9 (quoting Leblanc v.
_______
1983)).
waiver of
impermissible basis
212(c) is
firmly within
a balance
of
in
the
"social
and
decision
is
standard,
the
Board's
his misunderstanding.4
As the Board
explained, however, it
finding
that the
waiver
application
had been
change
abandoned.
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4
Incidentally, appellant points out that the INS has not
opposed reopening the case and hearing the merits of the 212(c)
application.
We fail to see why the Board must sanction a
violation of an immigration judge's order because the INS does