USCA1 Opinion
June 27, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2293
MARTA LEYLA HERNANDEZ PINEDA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Raymond Rivera on brief for petitioner.
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Frank W. Hunger, Assistant Attorney General, Mark C. Walters,
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Assistant Director, Office of Immigration Litigation, and Kristen A.
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Giuffreda, Attorney, Civil Division, U.S. Department of Justice,
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Office of Immigration Litigation, on brief for respondent.
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Per Curiam. Petitioner Marta Leyla Hernandez
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Pineda, a citizen of Nicaragua, has filed a petition for
review of an order of the Board of Immigration Appeals (the
Board) denying her motions to reopen and reconsider. She
sought to have the Board reconsider its final decision, dated
July 6, 1993, dismissing her appeal from the order of the
immigration judge which denied her applications for
suspension of deportation and asylum. The Board dismissed
the appeal as untimely.
I.
_
Petitioner illegally entered the United States in
July 1984. The Immigration and Naturalization Service (INS)
issued an order to show cause on April 26, 1991, based on
petitioner's failure to present herself for inspection upon
entering this country. See 8 U.S.C. 1251(a)(1)(B). A
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hearing was held before an immigration judge. Petitioner was
represented by counsel at this time. She conceded
deportability and informed the immigration judge that she
would apply for asylum, see 8 U.S.C. 1158, and suspension,
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see 8 U.S.C. 1254.
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Accordingly, a hearing on these applications was
held on January 14, 1992. Although petitioner had requested,
and received, a postponement of the hearing on the ground
that she was seeking new counsel, she appeared pro se at the
hearing. In an oral decision, the immigration judge denied
both applications. Petitioner then expressed her desire to
appeal this decision to the Board. At this point, the
immigration judge stated:
And if you decide to appeal, the
appeal deadline is January 24, '92. Now
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I'm handing you the appeal forms which
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must be filed by the deadline date. And
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a form that you were given before, a 618
form that explains your appeal rights.
Now, if you want to appeal, the fee for
an appeal has to be filed here at this
office. And then the appeal form has to
be mailed to my office in Arlington,
Virginia. And I'll give you the address.
We'll find the address. I'm going to
give you a summary of my decision and
order and my address is listed at the top
of that form. And I'm going to add our
phone number there, too. Now if you hire
a lawyer to help you with the appeal, the
lawyer needs to fill out the gold
appearance form.
Administrative Record, at 123-24 (emphasis added).
On January 22, 1992, petitioner asked for an extension
of time to file her appeal. She was notified of the denial
of her request on January 24th. She then used next-day mail
to send her appeal. However, her documents were returned to
her on January 27th because she had not used the proper
appeal forms. By this time, petitioner had retained counsel.
In March 1992, he filed an appeal using the correct forms,
but had not made out the money order for the fee to the right
entity. The appeal was perfected in April. After receiving
several extensions of time, petitioner filed her brief in
support of her appeal in October 1992.
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On July 6, 1993, the Board issued its order
dismissing petitioner's appeal as untimely. The motions for
reopening and reconsideration ensued. Petitioner argued that
the Board had made an error in its decision. Specifically,
petitioner claimed that, at the hearing, she had not been
informed that she was required to use specific forms to file
an appeal. She acknowledged that she had been told of the
January 24, 1992 deadline and asserted that by express-
mailing her appeal on the 24th, she had appealed by the
deadline. She also argued that she had been misinformed by
the local INS office concerning to whom the money order
should be made payable. Further, she pointed out that when
her appeal was returned to her on January 27th, she was not
told by anyone that her appeal had not been perfected
according to the regulations.
She next asserted that to reject her appeal which
had been "timely appealed but untimely filed," violated due
process. That is, she went on, she should not be penalized
when she had "fully complied" with the instructions given to
her. Finally, petitioner maintained that the immigration
judge violated due process when she failed to tell petitioner
about the correct forms even though the immigration judge
knew that petitioner was proceeding without counsel.
The Board, in a per curiam order, denied the
motion. As for the request for reconsideration, it re-
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examined its decision in light of petitioner's arguments. It
first pointed out that the appeal was mailed, using next-day
delivery, on the day it was due. Next, the Board stated that
the record revealed that the immigration judge had, in fact,
handed the proper application forms to petitioner. Further,
the immigration judge had given petitioner "explicit
instructions" concerning when and where the form should be
filed and where the fee should be paid. Next, the Board
considered the request for reopening. It rejected it out of
hand, though, because petitioner had failed to submit "new,
previously unavailable evidence in support of her motion. . .
." Administrative Record, at 2.
II.
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In determining motions to reopen and reconsider,
the Board is exercising "discretionary authority." 1 C.
Gordon & S. Mailman, Immigration Law and Procedure
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305[7][a], at 3-68 (rev. ed. 1993) (footnote omitted). "In
reviewing a discretionary decision of the Board, we determine
only whether the decision was arbitrary, capricious, or an
abuse of discretion." Martinez v. I.N.S., 970 F.2d 973, 974
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(1st Cir. 1992); LeBlanc v. I.N.S., 715 F.2d 685, 693 (1st
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Cir. 1983) (court will uphold discretionary action of the
Board unless it had no rational explanation, did not follow
established policies, or was based on impermissible grounds
such as race discrimination). As for the Board's findings of
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fact, we review them under the "substantial evidence
standard." Martinez, 970 F.2d at 974. As set forth in 8
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U.S.C. 1105a(a)(4), "findings of fact, if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole, shall be conclusive. . . . "
A. Motion to Reconsider
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The Board found, as matters of fact, that
petitioner had been given the appeal forms by the immigration
judge and had been told where and when to file them. There
is no question that the record supports these findings. The
immigration judge announced, at the end of the hearing, that
she was handing the forms to petitioner. She then explained
that the fee was to be paid at the immigration office and the
appeal forms sent to the immigration judge's office in
Virginia. In light of such clear record evidence, the Board
had the authority to reject petitioner's contention that she
never received the forms.
Further, the Board's finding that the appeal was
filed late also is supported by substantial evidence.
Petitioner argues that January 24th was not the day the
appeal was due. Rather, she maintains that she had 13 days
(rather than 10) in which to appeal. Thus, the return, on
January 27th, of petitioner's appeal materials indicates that
her appeal must have arrived within the 13-day period.
Petitioner misreads the regulation; the longer period in
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which to file an appeal applies when the decision of the
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immigration judge is mailed, not when the appeal is mailed.
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See 8 C.F.R. 3.38(b); Da Cruz v. I.N.S., 4 F.3d 721, 722
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(9th Cir. 1993) (where decision of immigration judge was
mailed, petitioner had 13 days to file an appeal).
Based on the foregoing, there is no question that
the Board did not abuse its discretion in denying
petitioner's motion to reconsider. The facts establish that
her appeal was late. Where an appeal is not taken within the
10-day period, the right to appeal is lost. Da Cruz, 4 F.3d
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at 722; Matter of G.Z., 5 I & N Dec. 295 (1953); 1
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Immigration Law and Procedure, 3.05[4][a], at 3-54.
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B. The Motion to Reopen
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Motions to reopen are disfavored and a petitioner
bears a heavy burden in showing entitlement to this relief.
I.N.S. v. Abudu, 485 U.S. 94, 107, 110 (1988). Given this,
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"the Board is to be accorded a great deal of leeway in
exercising its authority." LeBlanc, 715 F.2d at 689. Under
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8 C.F.R. 3.2, the Board is prohibited from reopening a
proceeding "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. . . ." Similarly, 8 C.F.R. 3.8(a) states that
"[m]otions to reopen shall state the new facts to be proved
at the reopened hearing . . . . "
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Petitioner failed to meet the basic requirement
that she present "new facts" that previously were "not
available." First, petitioner knew that the appeal was to be
filed by January 24th. Second, the "fact" that the notice of
appeal was late was established as early as January 24, 1992
when petitioner mailed her appeal papers on the day the
appeal was due. Her argument that she did not know that her
appeal was late because the INS continued to process her
appeal after January 24th is not a "fact." The immigration
judge had made clear when to file an appeal and her lack of
authority to grant any extensions of time. As a result, we
find that the Board did not abuse its discretion in refusing
to reopen the proceeding to allow petitioner's late-filed
appeal to proceed. See Da Cruz, 4 F.3d at 722 (Board may not
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reopen a case "solely to allow a late appeal"); Matter of D.,
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5 I & N Dec 520, 521 (1953) (same).
C. Due Process Violation
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Petitioner maintains that by not informing her that
her appeal was late and by continuing to process the appeal
during the ensuing year and a half, the Board violated her
procedural due process rights. She characterizes the Board
as having made an "abrupt change" when it dismissed her
appeal as late on July 6, 1993. This change, she goes on,
deprived her of the chance to "effectively" present her case.
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To establish a due process violation, petitioner
must "demonstrate prejudice which implicates the fundamental
fairness of the proceeding." See Michelson v. I.N.S., 897
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F.2d 465, 468 (10th Cir. 1990). Petitioner's argument is
that by permitting her appeal to proceed, the Board's action
in "summarily" dismissing it was so arbitrary as to
constitute constitutional error. We do not agree. The cases
petitioner cites in support of her argument involved
challenges to the failure of the INS to follow its own rules
and regulations, see Montilla v. I.N.S., 926 F.2d 162, 166
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(2d Cir. 1991), challenges to specific regulations, see
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Toquero v. I.N.S., 956 F.2d 193, 196 (9th Cir. 1992), or
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challenges to the sufficiency of the procedures used in a
specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37
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(1982).
In contrast, petitioner complains here that in
following the applicable regulation concerning the filing of
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timely appeals, the Board violated her due process rights.
Although it would have been better if the Board had notified
petitioner earlier in the appeals process that her appeal was
late, it was not constitutional error to deny the motions to
reopen and reconsider.
III.
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Because this petition presents no substantial
question, we summarily affirm the decision of the Board. See
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1st Cir. Rule 27.1.
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