Hernandez Pineda v. INS

June 27, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2293

MARTA LEYLA HERNANDEZ PINEDA,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Cyr and Boudin,
Circuit Judges.

Raymond Rivera on brief for petitioner.

Frank W. Hunger, Assistant Attorney General, Mark C. Walters,

Assistant Director, Office of Immigration Litigation, and Kristen A.

Giuffreda, Attorney, Civil Division, U.S. Department of Justice,

Office of Immigration Litigation, on brief for respondent.

Per Curiam. Petitioner Marta Leyla Hernandez

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

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,

see 8 U.S.C. 1254.

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

I'm handing you the appeal forms which

must be filed by the deadline date. And

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.

In determining motions to reopen and reconsider,

the Board is exercising "discretionary authority." 1 C.

Gordon & S. Mailman, Immigration Law and Procedure

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

(1st Cir. 1992); LeBlanc v. I.N.S., 715 F.2d 685, 693 (1st

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

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

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

immigration judge is mailed, not when the appeal is mailed.

See 8 C.F.R. 3.38(b); Da Cruz v. I.N.S., 4 F.3d 721, 722

(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

at 722; Matter of G.Z., 5 I & N Dec. 295 (1953); 1

Immigration Law and Procedure, 3.05[4][a], at 3-54.

B. The Motion to Reopen

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,

"the Board is to be accorded a great deal of leeway in

exercising its authority." LeBlanc, 715 F.2d at 689. Under

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

reopen a case "solely to allow a late appeal"); Matter of D.,

5 I & N Dec 520, 521 (1953) (same).

C. Due Process Violation

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

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

(2d Cir. 1991), challenges to specific regulations, see

Toquero v. I.N.S., 956 F.2d 193, 196 (9th Cir. 1992), or

challenges to the sufficiency of the procedures used in a

specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37

(1982).

In contrast, petitioner complains here that in

following the applicable regulation concerning the filing of

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.

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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