Erskine Alleyne, Petitioner, v. United States Immigration and Naturalization Service, Respondent, 879 F.2d 1177 (3d Cir. 1989)

Erskine Alleyne petitions for review of an order of the Board of Immigration Appeals (Board) which affirmed an Immigration Judge's finding of deportability. After filing the petition, and within the statutory period for seeking judicial review, Alleyne asked the Board to reconsider or reopen its decision. Although that motion is still pending, we hold that given the Congressional policy evidenced in the immigration statutes we have jurisdiction over the petition for review.

On the merits, Alleyne argues that the Immigration Judge improperly admitted a criminal complaint associated with his conviction for violating various Pennsylvania firearms laws and that there was insufficient other evidence to prove his conviction of possession of a sawed-off shotgun as charged by the Immigration & Naturalization Service (INS). He also claims, even considering the criminal complaint, that there was no evidence of the weapon's barrel length, a requirement he finds in Board precedent, and that the Immigration Judge did not make required findings of fact. Since Alleyne did not raise these issues before the Board, we are unable to consider them. Accordingly, we will deny the petition for review.

Alleyne, a native and citizen of Barbados, entered the United States as a lawful permanent resident in 1971. On December 16, 1980, he was convicted of violating 18 Pa.Cons.Stat.Ann. Secs. 908 (Purdon Supp.1988) (repairing, selling or otherwise dealing in, using or possessing any "offensive weapon"), 6106 (Purdon 1983) (carrying a firearm in a vehicle or concealed on or about the person without a license) and 6108 (Purdon 1983) (carrying a firearm, rifle or shotgun on public streets or public property of Philadelphia without a license).¹  The INS commenced deportation proceedings on May 27, 1981, alleging that Alleyne had been convicted of possessing and carrying a sawed-off shotgun in violation of the above statutes and was therefore deportable under Sec. 241(a) (14) of the Immigration and Nationality Act, 8 U.S.C.A. Sec. 1251(a) (14) (West Supp.1989).² 

At a September 24, 1981 hearing before an Immigration Judge, Alleyne admitted the convictions but denied they established the deportable offense charges under Sec. 241(a) (14). Administrative Record (A.R.) at 26-27. No testimony was taken, but copies of the order to show cause and the criminal transcript evidencing the convictions were admitted. The INS also sought to introduce a copy of the criminal complaint, marked as Exhibit 2-A, which states that on August 12, 1980 Sergeant James McDonnell observed Alleyne throw into some hedges an object which proved to be a "sawed off 12 Gauge Shot gun which was loded [sic] with one rifled [sic] slug." Id. at 63. Alleyne objected, arguing that the copy was not authenticated and that the complaint was "not part of the trial, disposition or the conviction." Id. at 29. The INS then "request [ed] a continuance ... of the Exhibit 2-A proper and certify [sic]" and reserved the right to call Sergeant McDonnell. Id. at 33 (ellipsis in original).

Sergeant McDonnell was present when the hearing resumed on November 30, 1981, but the INS declined to call him and did not present an authenticated copy of the criminal complaint. After copies of the Pennsylvania statutes were admitted, the Immigration Judge found that the INS had proven by clear, convincing and unequivocal evidence that Alleyne had been convicted of possessing a sawed-off shotgun and was deportable. Id. at 45-46. The hearing was adjourned again so that Alleyne could seek a waiver of deportability under 8 U.S.C.A. Sec. 1182(c) (West 1970). On October 23, 1985, the Immigration Judge denied Alleyne's request for a waiver for lack of prosecution and ordered Alleyne deported. A.R. at 19.

Alleyne appealed, but the Board dismissed the appeal as untimely. We vacated that order, Alleyne v. INS, No. 86-3230 (3d Cir. Aug. 19, 1986) (order), and on remand the Board affirmed the order of the Immigration Judge. The Board found that deportability had been established by "clear, convincing and unequivocal evidence," and that " [t]he record before us contains the respondent's record of being convicted on December 16, 1980, of possessing a sawed-off shotgun in violation of 18 G.P.S.A. [sic] Secs. 6106, 6108 and 908 (Exhs. 2-4)." A.R. at 1. This timely petition for review followed.

We consider first a question of our jurisdiction. After filing this petition, and within the time for seeking judicial review, Alleyne asked the Board to reconsider or reopen its decision. We must determine whether that motion, which is still pending, deprives the Board's order of finality and precludes our review.³ 

In Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986), we held that the filing of a reconsideration motion does not toll the six month time period for seeking judicial review under the Immigration and Nationality Act. Noting that we can independently review the denial of a motion to reopen or reconsider, we stated that "a proper petition for review must be filed within six months of the specific order sought to be reviewed, in compliance with 8 U.S.C. § 1105a(a) (1)." Id. (emphasis in original). We reasoned that to hold otherwise would conflict with the Congressional policy to

prevent undue delay in deportation once the alien's immigration status had been decided. Enacting the Immigration and Nationality Act, Congress was especially sensitive to what it designated as "the growing frequency of judicial actions being instituted by undesirable aliens whose cases ... are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country." H.R. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin.News 2950, 2967. Protracted litigation was viewed by Congress as a means of exploiting the judicial process. Thus, permitting aliens the benefit of additional time from their filing of motions to reopen or to reconsider would directly contravene Congressional intent to prevent successive, piecemeal appeals from being used as a dilatory tactic to postpone the execution of deportation orders. Moreover, the six month appeal period was seen by Congress to be "sufficient and far beyond the realms of any claim of unfairness, for an alien to determine whether he really has a case upon which he should seek judicial review and to prepare therefore." Id. at 2973.

Id. (footnote omitted).⁴ 

This result differs from the typical rule in administrative law cases. In ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 107 S. Ct. 2360, 96 L. Ed. 2d 222 (1987), the relevant statute provided that the agency's order was final on the date filed notwithstanding a provision authorizing motions to reconsider or reopen. Nevertheless, the United States Supreme Court, applying the rule developed under the Administrative Procedure Act (APA), 5 U.S.C.A. Sec. 704 (West 1977), concluded that the filing of such a motion rendered the underlying order nonfinal and tolled the appeals period. Id. 107 S. Ct. at 2369.⁵ 

In West Penn Power Co. v. EPA, 860 F.2d 581 (3d Cir. 1988), we reached a similar result where a party sought reconsideration before the agency and, simultaneously, judicial review.⁶  Unlike the sequential review in Locomotive Engineers, there was no risk that a party would inadvertently lose its right to appeal. Thus, one of the reasons supporting tolling was absent. Id. at 585. We concluded, however, that we were bound by Locomotive Engineers, seeing "no principled way to distinguish between the concept of finality for purposes of triggering the running of a time limit for appeals and the concept of finality for the purpose of appellate court jurisdiction." Id. We also found the rule that a reconsideration motion renders an agency's order nonfinal to be good policy, stating:

We can see no justification for allowing a petitioner to apply to both the court and the agency at the same time. On the contrary, such a regime could lead only to waste of resources on the part of the agency, the court, or both, without any countervailing benefit.

Id. at 586. See also United Transp. Union v. ICC, 871 F.2d 1114 (D.C. Cir. 1989) (finding reasoning of West Penn persuasive and holding that reconsideration motion pending before ICC rendered its order nonfinal, precluding judicial review).

West Penn does not refer to Nocon. However, as we noted in West Penn, "Under different circumstances it might have been appropriate to conclude that Congress has made a policy judgment that efficiency is always secondary in the context of judicial review of agency actions. However, the legislative history reflects no such judgment...." 860 F.2d at 587. We believe Nocon is distinguishable and that we remain constrained by it because of the Congressional policy underlying the Immigration and Nationality Act. In the immigration context, Congress has determined that the potential for abusive appeals outweighs efficiency concerns. Accordingly, following Nocon, we hold that the pending reconsideration motion does not render the order of deportation nonfinal.⁷  These policy concerns compel the same conclusion with respect to the motion to reopen.⁸ 

We therefore have jurisdiction and turn to the merits.

Alleyne raises three claims of error in this Court. He asserts that Exhibit 2-A, the criminal complaint filed by the Philadelphia police for violation of Pennsylvania firearms laws, was inadmissible. Absent this evidence, he contends, it cannot be determined whether his convictions under Pa.Cons.Stat.Ann. Secs. 908, 6106 and 6108 constitute the deportable offense charged. He also argues that neither the Immigration Judge nor the Board made the findings of fact required by 8 U.S.C.A. Sec. 1252(b) (West 1970 & Supp.1989) and 8 C.F.R. Secs. 242.8(a), 242.14(a), 242.18(a) (1988). Finally, he claims that for purposes of the immigration laws the Board has determined that a sawed-off shotgun must have a barrel length of less than eighteen inches. Since the Pennsylvania laws do not specify barrel length, he contends that, even assuming he was convicted for possession of a sawed-off shotgun the INS did not prove deportability by clear, convincing and unequivocal evidence.

8 U.S.C.A. Sec. 1105a(c) (West 1970) provides in relevant part that " [a]n order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations." This provision precludes review when there is no appeal to the Board. Bak v. INS, 682 F.2d 441, 442 (3d Cir. 1982) (per curiam) (motion to reopen); Jacobe v. INS, 578 F.2d 42, 44 (3d Cir. 1978) (review of original deportation proceeding). It also bars consideration of particular questions not raised in an appeal to the Board. Campos-Guardado v. INS, 809 F.2d 285, 291 (5th Cir.), cert. denied, 484 U.S. 826, 108 S. Ct. 92, 98 L. Ed. 2d 53 (1987); Florez-De Solis v. INS, 796 F.2d 330, 335 (9th Cir. 1986); Kahlenberg v. INS, 763 F.2d 1346, 1352 (11th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S. Ct. 1636, 90 L. Ed. 2d 182 (1986), mandate recalled and remanded on other grounds, 796 F.2d 1327 (11th Cir. 1986); Chung Young Chew v. Boyd, 309 F.2d 857, 861 (9th Cir. 1962); see Cisternas-Estay v. INS, 531 F.2d 155, 160 (3d Cir.) ("if counsel wishes to preserve an issue on appeal, he must raise it in the proper administrative forum"), cert. denied, 429 U.S. 853, 97 S. Ct. 145, 50 L. Ed. 2d 127 (1976).

Alleyne's notice of appeal to the Board states that the Immigration Judge erred in:

a) determining that said alien was deportable based upon his plea of guilty to a Statute which the plea covered various offenses some deportable some not [.]

b) The Court erred in premitting [sic] the service to go behind the plea.

c) The Court erred in refusing to continue said matter [.]

A.R. at 17. Alleyne declined to file a brief to further elaborate his position at that time, and did not file a brief in the two years that the matter was on remand from this Court. Thus, in determining what issues were properly presented to the Board, we are limited to this notice of appeal.⁹ 

None of the errors asserted in that document even arguably raises the issue of whether the Immigration Judge made required findings of fact. To the extent Alleyne asserts that the Board's decision is defective under 8 U.S.C.A. Sec. 1252(b) and 8 C.F.R. Secs. 242.8(a), 242.14(a) and 242.18(a) (1988) because it too lacks specific findings of fact, his argument is without merit. The statute only requires that a determination of deportation be made on a record developed before an Immigration Judge and permits the Attorney General to delegate to those judges the right to make determinations. The regulations by their terms apply to the Immigration Judges, and not to the Board.¹⁰ 

The notice of appeal also does not implicate Alleyne's argument that the Board has established a federal standard for sawed-off shotguns necessary for deportation under 8 U.S.C.A. Sec. 1251(a) (14). However, his deportation for conviction of possessing a sawed-off shotgun under a statute that did not contain at least as restrictive a standard, and where there was no evidence that the standard was met, might raise due process problems. Some courts have reviewed constitutional claims not presented to the Board, on the theory that the Board does not have jurisdiction to decide those issues. See Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985). In this case, the Board could have corrected any constitutional error simply by applying its prior precedent, an action clearly within its competence. See Vargas v. United States Dep't of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir. 1987) (due process claim involving correctable "procedural errors" not reviewable unless first presented to Board).

Even assuming that we may consider Alleyne's claim that the Board established such a standard in In re Rodriguez, 14 I & N Dec. 706 (BIA 1974), we see no basis for granting the petition for review. Section 241(a) (14) of the Immigration and Nationality Act provides for deportation of an alien who "ha [s] been convicted of possessing or carrying in violation of any law ... a weapon commonly called a sawed-off shotgun." 8 U.S.C.A. Sec. 1251(a) (14) (emphasis added). The Board found Rodriguez deportable under this section based on his conviction for violating 26 U.S.C. §§ 5841 and 5851, which proscribe possession of an unregistered "firearm." The Board noted that Congress had redefined "firearm" in Sec. 5841 in 1960 to include a "shotgun or rifle having a barrel or barrels of less than 18 inches in length, or a rifle having a barrel or barrels of less than 16 inches in length." Rodriguez, 14 I & N Dec. at 707. Looking to the legislative history, it concluded that this change was made to include sawed-off shotguns and sawed-off rifles within the provisions Rodriguez was convicted of violating. Since the shotgun at issue had a barrel of less than eighteen inches, the Board held that "this firearm was a weapon commonly called a sawed-off shotgun" and that Rodriguez had been convicted under a statute punishing the possession of such a weapon. Id. at 708.

We do not read Rodriguez as establishing a federal standard for sawed-off shotguns. Under the plain language of Sec. 241(a) (14), conviction for possession of a sawed-off shotgun in violation of any law is a deportable offense. The Board simply looked to whether the relevant federal statutes reached possession of such a weapon and whether Rodriguez had been so charged. That a shotgun with a barrel length satisfying the terms of a federal law is "a weapon commonly called a sawed-off shotgun," does not imply that shotguns with other barrel lengths are not. Conviction of a state statute prohibiting possession of a sawed-off shotgun may also support deportation under Sec. 241(a) (14).

Finally, Alleyne maintains that Exhibit 2-A was improperly admitted and that his conviction for violating 18 Pa.Cons.Stat.Ann. Secs. 908, 6106 and 6108 does not, without more, establish that he was convicted of possessing a sawed-off shotgun. Alleyne's third claim of error to the Board--that the Immigration Judge erred in failing to grant a continuance--clearly does not raise the admissibility of Exhibit 2-A.

Likewise, the first issue in the notice of appeal to the Board--that he cannot be deported based on a "plea of guilty to a statute which the plea covered various offenses some deportable some not," A.R. at 17 (emphasis added)--does not fairly raise the admissibility of Exhibit 2-A. On its face, this statement indicates that Alleyne pled guilty to at least one deportable offense. It would not alert the Board to his position that it was improper to use Exhibit 2-A to determine the nature of his conviction. To the extent the statement makes the argument that a statute covering both deportable and non-deportable offenses cannot support deportation--the construction adopted by the INS, see Brief for Respondent at 8 n. 5--it was also inadequate to raise the admissibility of Exhibit 2-A. The Board properly rejected the purely legal argument based on the statutes' coverage; as long as Alleyne was convicted of possessing a sawed-off shotgun in violation of the statutes it is irrelevant that they also proscribe other acts. The statement does not embrace or include Alleyne's objection to determining that he was convicted of a deportable offense by reference to Exhibit 2-A, especially given the indication that he had pled guilty to a deportable offense.

The claim that the Immigration Judge erred in "permitting the service to go behind the plea," A.R. at 17, also failed to alert the Board to the issue of whether Exhibit 2-A was admissible. In the immigration context, "going behind the plea" usually refers to a petitioner's attacks on the validity of a conviction by evidence outside the judicial record. See Longoria-Castenada v. INS, 548 F.2d 233, 236 (8th Cir.) (petitioner cannot attempt to show he did not commit crime of which he was convicted; " [i]mmigration authorities must look to the judicial record, and may not go behind it to make an independent determination of guilt or innocence."), cert. denied, 434 U.S. 853, 98 S. Ct. 169, 54 L. Ed. 2d 123 (1977); Rodriguez, 14 I & N Dec. at 708 ("A conviction may not be attacked in a deportation proceeding, since there is no authority to go behind the record of conviction to determine the respondent's guilt or innocence [.]"); see also Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985) (Immigration Judge properly excluded arguments that petitioner was innocent and that his conviction resulted from selective prosecution); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. Unit A July 1981) (per curiam) (independent determination of validity of guilty plea not permitted); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (determine conviction of a crime by looking only to judicial records), cert. denied, 423 U.S. 1050, 96 S. Ct. 776, 46 L. Ed. 2d 638 (1976). Similarly, the nature of an alien's crime is determined by the statute and record of conviction, not from the specific acts surrounding the conviction. See Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (whether crime involves moral turpitude depends on inherent nature of crime and is determined solely from the statute and record of conviction); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam) (look to statutory definition or nature of crime, not specific conduct); Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4th Cir. 1976) (per curiam) (look to crime for which convicted, not specific act resulting in conviction).

Alleyne's assertion of "going behind the plea" may have alerted the Board to the admission of evidence outside the judicial record to establish the nature of the crime for which he was convicted. Although it flirts with his argument that Exhibit 2-A is not part of that record, it is not specific enough to focus the Board's attention on that document. This is especially true since the notice of appeal suggests Alleyne pled guilty to a deportable offense. While a brief may have made clear Alleyne's objection, he declined to file one.

Under the circumstances, the Board could not have been expected to address the admissibility of Exhibit 2-A. See C. Gordon and G. Gordon, 2 Immigration Law and Procedure, Sec. 62.10 (1988) (" [s]pecificity [in notice of appeal] is especially important if counsel does not ask for oral argument and files no brief.... Generalized and vague statements of grounds for appeal in the Notice of Appeal do not inform the BIA what counsel thinks it should look for when it reviews the record."). As the Board recently stated in summarily dismissing an appeal from an Immigration Judge's denial of discretionary relief,

"it should be clear [from the notice of appeal] whether the alleged impropriety in the decision lies with the immigration judge's interpretation of the facts or his application of legal standards. Where a question of law is presented, supporting authority should be included, and where the dispute is on the facts, there should be a discussion of the particular details contested."

Townsend v. United States Dep't of Justice INS, 799 F.2d 179, 182 (5th Cir. 1986) (per curiam) (quoting In re of Valencia, Interim Decision No. 3006 (BIA 1986) (citation omitted)); see also 8 C.F.R. Sec. 3.1(d) (1-a) (1988) (Board may summarily dismiss if party fails to specify reasons for appeal in notice of appeal); Bonne-Annee v. INS, 810 F.2d 1077, 1078 (11th Cir. 1987) (per curiam) (where notice of appeal to Board failed to state specific grounds of appeal and no brief filed, summary dismissal appropriate); Reyes-Mendoza v. INS, 774 F.2d 1364, 1364-65 (9th Cir. 1985) (where six word statement of reasons in notice of appeal to Board failed to specify grounds for appeal and no brief filed, summary dismissal appropriate).

Finally, we recognize that Alleyne objected to Exhibit 2-A before the Immigration Judge. This is not, however, a sufficient substitute for providing the Board an opportunity to correct errors in the administrative proceedings. Accordingly, we are unable to consider Exhibit 2-A's admissibility.¹¹ 

For the reasons set forth above, the petition for review will be denied.