Unpublished Disposition, 931 F.2d 59 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 59 (9th Cir. 1990)

Teresita GAO-AY, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70163.

United States Court of Appeals, Ninth Circuit.

Submitted April 11, 1991.* Decided April 17, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


MEMORANDUM** 

Teresita Gao-Ay, a native of the Philippines, petitions for review of a decision of the Board of Immigration Appeals ("the Board") dismissing her appeal from an order of the immigration judge ("IJ") which found her deportable and granted her voluntary departure in lieu of deportation following her failure to file a timely petition for asylum. We affirm the Board's decision but stay the order of deportation for sixty days from the filing of this memorandum to allow time for petitioner to file a motion to reopen and, if a motion to reopen is filed with the Board, for such further time as is necessary for the disposition of the motion by the Board.

BACKGROUND

Petitioner is a 44-year old native and citizen of the Philippines who entered the United States on May 3, 1986 as a nonimmigrant visitor authorized to remain until November 3, 1986. On June 9, 1988, petitioner was charged with failing to depart upon the expiration of her visa. At a deportation hearing held on June 30, 1988, the petitioner conceded deportability under 8 U.S.C. § 1251(a) (2), but requested an opportunity to file an application for asylum and withholding of deportation pursuant to Secs. 208(a) and 243(h) of the Immigration and Naturalization Act, 8 U.S.C. §§ 1158, 1253(h). The IJ allowed the petitioner until August 1, 1988 to apply for asylum and withholding of deportation, and expressly warned the petitioner and her counsel twice during the hearing that if the applications were not submitted by the deadline, petitioner would lose the right to apply for those forms of relief and would receive voluntary departure.

On September 7, 1988, the IJ issued a decision noting that an asylum application had not been filed and ordering petitioner to depart voluntarily by October 15, 1988. Petitioner filed a timely notice of appeal on September 13, 1988, asserting that the issuance of a voluntary departure order without prior notice to her violated her due process rights. She claimed that she had attempted to file her application for asylum in a timely manner, on July 15, 1988, but that because of a clerical error, all of the copies of the application were left with a clerk in the district counsel's office and none was filed with the immigration court. (A date-stamped copy of the application confirms that the district counsel did, in fact, receive copies of the application on July 15th.) Neither petitioner nor her counsel was aware of the clerk's failure to file the application until after they received the IJ's September 7th order granting voluntary departure.

On November 29, 1988, counsel for petitioner wrote a letter to the IJ inquiring whether he would consider a motion to reopen. The IJ responded with a letter stating that he could not offer an "advisory opinion" as to whether he would allow reopening and that he could not consider a motion to reopen while the appeal was pending. Petitioner never filed a motion to reopen the case before the IJ, but instead proceeded with her appeal before the Board, which the Board treated as an application for remand.

By order dated February 6, 1990, the Board held that petitioner had "an absolute obligation to file the asylum claim with the immigration judge's office pursuant to 8 C.F.R. Sec. 3.29," and that the serving of the application on the district counsel's office, and the district counsel clerk's inadvertent acceptance of all copies of the asylum claim, did not relieve the petitioner's obligation to file the asylum application with the immigration court. The Board further observed that petitioner's "counsel's representations on appeal [were] completely unsubstantiated by evidence or affidavit" and were thus entitled to no evidentiary weight. Based on the petitioner's failure to file a timely application, and on the insufficient detail and evidentiary basis offered on appeal to support a showing of good cause for that failure, the Board dismissed the appeal and ordered the respondent to depart voluntarily within 30 days.

Following the Board's order, the petitioner obtained new counsel and filed a motion for reconsideration, alleging that her failure to file a timely asylum application was due to the negligence of previous counsel. Subsequently the petitioner reengaged her original counsel (who represented her in the initial deportation proceedings and before the Board and who likewise filed the briefs on her behalf in this proceeding), withdrew her motion for reconsideration, and filed the instant petition for review.1 

Petitioner asserts that the Board abused its discretion in dismissing her petition where her failure to make a timely application was unintentional and for "a just reason not amounting to neglect." She contends that she presented a reasonable excuse for having missed the filing deadline. She argues as well that the application became part of the administrative record when it was filed with the district counsel on July 15, 1988, "even though the filing of the application did not technically meet the deadline set by the Court." Finally, the petitioner argues that the IJ's decision contravenes the policy of family unity and substantially interferes with the right of petitioner's children to an adjudication on the merits of their asylum applications and that the IJ's decision is inconsistent with the standard of review required in deportation proceedings.2 

The petition for review was timely and we have jurisdiction to review the Board's final orders of deportation pursuant to 8 U.S.C. § 1105(a) (1).

STANDARDS OF REVIEW

We must give controlling weight to the Board's construction and application of administrative regulations unless its interpretation is "plainly erroneous or inconsistent with the regulation." United States v. Larionoff, 431 U.S. 864, 872 (1977) (quotation omitted). Thus, the Board's determinations that 8 C.F.R. Sec. 3.29 creates an "absolute obligation" to file an asylum application in immigration court, that the IJ may set time limits for the filing of applications, and that an in absentia order is an appropriate action by the district judge where the petitioner fails to file a timely application, may be reversed only if they are "plainly inconsistent with the wording of the regulations." Id. at 873.

A request that a case be remanded to the immigration court to permit the filing of an application for relief from deportation is analogous to a motion to reopen. We therefore review for abuse of discretion the Board's denial of Gao-Ay's motion to remand on the grounds that she did not reasonably explain her failure to file a timely application. See INS v. Abudu, 485 U.S. 94, 105, 107 (1988).

DISCUSSION

A. IJ's "in absentia" voluntary departure order.

Petitioner asserts that it was improper for the IJ to enter an order of deportation following her failure to submit an application for asylum by the August 1, 1988 deadline. She takes issue with the Board's statement that an asylum applicant has "an absolute obligation to file the asylum claim with the immigration judge's office pursuant to 8 C.F.R. Sec. 3.29," contending that it conflicts with INS v. Abudu, 485 U.S. 94 and Matter of Jean, 17 I & N Dec. 100 (BIA 1979), both of which hold that an alien may be entitled to reopening of her deportation proceeding to allow consideration of a late asylum application where she reasonably explains her failure to file a timely application. Petitioner also suggests that the IJ was required to give her notice of her default before entering such an order and, in the alternative, that her application for asylum was a part of the administrative record which the IJ had an opportunity to review because it was filed at the separate office of the district counsel. These contentions are without merit.

The regulation governing the filing of documents and applications, 8 C.F.R. Sec. 3.29, provides in relevant part:

All documents and applications to be considered in a proceeding before an Immigration Judge must be filed with the Office of the Immigration Judge having administrative control over the Record of Proceeding.... The Immigration Judge may set and extend time limits for the filing of applications and related documents and the responses thereto, if any. If an application or related document is not filed within the time set by the Immigration Judge, the opportunity to file that application shall be deemed waived. (emphasis supplied)

While the Board's use of the phrase "absolute obligation" may have been somewhat inaccurate in light of the regulations and case law allowing reopening, it is clear from the Board's own citation of Abudu, and from its analysis of the adequacy of Gao-Ay's explanation of her failure to file, that the Board recognized that the obligation to file a timely application in the correct location could be excused upon a showing of good cause presented by way of a motion to reopen. Its holding therefore does not conflict with Abudu or Matter of Jean.

The plain language of the regulation does make clear that applications must be filed with the immigration court, and that the IJ may set reasonable deadlines which generally are binding on petitioners. In that sense, the location and time requirements are "absolute." Petitioner's argument that timely filing with the INS district counsel somehow constitutes adequate filing with the immigration court is thus contrary to the plain language of 8 C.F.R. Sec. 3.29. Moreover, it defies logic to suggest that a petitioner can file an application with any office of the INS and expect that it will become a part of the administrative record and receive appropriate review. Such a rule would make chaos of the asylum application process. It would be comparable to a rule that filing with a district court constitutes filing with the appeals court simply because the two are located in the same building. We reject petitioner's contention that her filing with the district counsel constituted a proper filing.

Petitioner's argument that it was incumbent upon the IJ to notify her of her failure to file a timely asylum application before entering a deportation order is likewise unavailing. While 8 C.F.R. Sec. 3.29 does not provide expressly for the in absentia entry of deportation orders following a petitioner's failure to file a timely application, its specification that "the opportunity to file ... shall be deemed waived" strongly suggests that the IJ may enter such an order. Clearly then, the Board's holding that the IJ may enter such an order is not plainly inconsistent with the language of the regulation. We note as well that the IJ in this case explicitly warned the petitioner twice during her deportation hearing that should she fail to file applications for asylum and withholding of deportation by the established deadline of August 1st, she would lose the right to file and be given thirty days voluntary departure. To require an IJ in such a situation to advise each petitioner who fails to file a timely application of her default in order to provide an additional opportunity to apply would needlessly prolong the deportation process. Where a petitioner has failed inadvertently to file a petition, relief is available by way of a motion to reopen.

B. Board's denial of a remand.

Petitioner also contends that the Board abused its discretion in finding that she had not reasonably explained her failure to file a timely application for asylum so as to warrant a remand to the IJ for consideration on the merits. A motion to remand is analogous to a motion to reopen. In both situations, a deportation order has been issued and the alien seeks a new hearing in which to present evidence in support of a new claim to relief. A motion to reopen is addressed to a decisionmaker (i.e., the IJ or the Board) after it has ruled initially against the alien, while a motion for remand is addressed to the Board before it has reviewed an adverse ruling by the IJ. In order to obtain a remand or reopening on the basis of a new request for asylum, the alien must "reasonably explain [ ] his or her failure to request asylum initially." INS v. Abudu, 485 U.S. at 107; 8 C.F.R. Sec. 208.11.

While evidence of clerical error such as that alleged to have taken place in this case may well constitute sufficient grounds to warrant reopening or remand, we cannot say that the Board abused its discretion in this instance, where the petitioner presented only the conclusory statements of counsel in support of her motion for remand. Counsel's representations before the Board were completely unsubstantiated by evidence or affidavit. The sole evidence in support of petitioner's allegations was the date-stamped copy of the asylum application which indicated its timely receipt by the district counsel. Statements made by a petitioner or counsel in a brief or notice of appeal are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89, n. 6 (1984). Under the circumstances, the Board did not abuse its discretion in denying a remand based on the record before it.

C. Petitioner's remaining arguments.

Petitioner also asserts that the deportation order contravenes the policy of family unity and substantially interferes with the rights of her children to have an adjudication on the merits of their asylum applications. It appears that petitioner raises this argument for the first time before this court and we therefore lack jurisdiction to consider it. See Vargas v. U.S. Dept. of Immigration, 831 F.2d 906, 907-08 (9th Cir. 1987). In any event, the Executive Order cited by the petitioner is inapposite since it applies to the general "formulation and implementation of policies" having a "significant potential negative impact" on family well-being, not to the individual application of existing procedural regulations. Exec. Order 12606 of Sept. 9, 1987 (52 Fed.Reg. 34188). Moreover, while Congress and the courts have recognized family unification as a factor in the immigration field, to apply it in the way suggested by the petitioner would prohibit deportation of any alien with a spouse or children who have a different status or who have filed separate petitions. Petitioner's family unification argument is without merit.

Petitioner's argument, relying on Delgadillo v. Carmichael, 332 U.S. 388 (1947), that all doubts regarding the alien's eligibility for relief from deportation are to be decided in the alien's favor, is likewise without merit. The language quoted by the petitioner is inapposite to the present case.

D. Ineffective assistance of counsel.

Although the present petition for review does not contain an ineffective assistance of counsel argument, and the motion for remand likewise did not assert ineffective assistance as an explanation of the petitioner's failure to file a timely application (in all likelihood because the same counsel has appeared on behalf of the petitioner at all three stages of proceedings), it may be that petitioner was afforded representation of questionable quality. We are particularly troubled by the fact that petitioner's application for asylum will not be reviewed on the merits due to her counsel's failure to adhere to deadlines and follow procedures before both the IJ and the Board, in light of counsel's recent six-month suspension from practice before this court for his neglect of clients and failure to conform to the Federal Rules of Appellate Procedure and the Ninth Circuit Rules. See note 1, supra.

Because deportation proceedings are deemed to be civil rather than criminal in nature, petitioners have no constitutional right to counsel under the sixth amendment. Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986). Nevertheless, such petitioners are entitled to due process pursuant to the fifth amendment. Id. "Ineffective assistance of counsel in a deportation proceeding is a denial of due process ... 'if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.' " Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986), quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985). The alien must show "not merely ineffective assistance of counsel, but assistance which is so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Magallanes-Damian, 783 F.2d at 933. Thus, a petitioner shoulders a heavy burden in arguing ineffective assistance of counsel in the context of a deportation proceeding. "Petitioners are generally bound by the conduct of their attorneys ... absent egregious circumstances." Id. at 934.

Our review in this case does not extend to the question of ineffective assistance of counsel, or to what Gao-Ay potentially should have argued to the Board. Instead, our review is confined to the Board's decision and the bases upon which the Board relied. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988). We therefore take no view on whether Gao-Ay would be able to meet the heavy burden of demonstrating egregious circumstances so as to warrant a reopening of her deportation proceedings to allow consideration of her asylum application on its merits. We do believe, however, that Gao-Ay should at least have the opportunity to bring a motion to reopen based on her allegations of counsel's incompetence. Accordingly, we stay the order of deportation for sixty days to afford petitioner the opportunity to file a motion to reopen.

The petition for review is DENIED and the decision of the Board is AFFIRMED. The order of deportation shall be stayed for sixty days from the filing of this memorandum to allow time for petitioner to file a motion to reopen and, if a motion to reopen is filed with the Board, for such further time as is necessary for the disposition of the motion by the Board. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985); Alvarez-Ruiz v. INS, 749 F.2d 1314, 1316 (9th Cir. 1984) (as amended) (per curiam).

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

We take judicial notice of the orders in In re Martin Resendez Guajardo, No. 91-80091, initially disbarring and, on reconsideration, suspending from practice for six months petitioner's current counsel. The disciplinary panel stated that Mr. Guajardo "neglected his clients" in two unrelated cases and "repeatedly failed to respond to this court's orders to show cause." Feb. 19, 1991 Disbarment Order. The panel likewise stated that "the Clerk is aware of the respondent neglecting his clients in other petitions for review filed with this court" and "invited" the State Bar of California to "investigate [Mr. Guajardo's] misconduct." March 22, 1991 Suspension Order

 2

Petitioner's children, who are currently ages 21 and 18, have filed separate applications for asylum