
USCA1 Opinion

	




          October 22, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 91-2113               93-1420                                 GILBERTO E. GARCIA,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                           PETITION FOR REVIEW OF ORDERS OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Carl Krueger, with whom the International Institute of Rhode               ____________                ________________________________          Island, Inc., was on brief for petitioner.          ____________               Charles   E.   Pazar,   Attorney,   Office   of  Immigration               ____________________          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.          ___                                 ____________________                                 ____________________                    Per   Curiam.    Petitioner  Gilberto  Garc a  contests                    ____________          decisions  of  the Board  of  Immigration  Appeals (the  "Board")          ordering deportation  and refusing  to reopen and  reconsider his          case.                    Petitioner  is a  native and  citizen of  the Dominican          Republic.  He has been a lawful permanent resident  in the United          States  since  1979.   On August  19,  1988, the  Immigration and          Naturalization Service ("INS") commenced  deportation proceedings          against  petitioner,  alleging  his deportability  under  section          241(a)(11) of  the Immigration  and Nationality Act  (the "Act"),          8 U.S.C.    1251(a)(11), as  an alien  convicted of  a controlled          substance  violation  (cocaine).   At  a  deportation hearing  on          February 27,  1989,1 petitioner  conceded that he  was deportable          as  charged and requested  an opportunity to  file an application          for a waiver of deportation under section 212(c) of the Act.  See                                                                        ___          8 U.S.C.    1182(c).  The immigration judge assigned the case for          a hearing  on the merits  on June 26, and  directed petitioner to          file his  waiver application by June  16.  On  June 6, petitioner          received  notice  that  his   hearing  had  been  rescheduled  to          September  27.  The notice did not mention the application filing          deadline.                    On  September   14,  petitioner  filed  his      212(c)          application  by paying  the  application fee  at the  Providence,          Rhode Island office of the INS.  The application was delivered to          the Office of the  Immigration Judge in Boston,  Massachusetts on                                        ____________________          1  Unless otherwise specified, all dates are during 1989.                                         -2-          September 15.                    On   September  18,   the  immigration   judge  ordered          petitioner's deportation because petitioner failed to timely file          his  written  application for  relief.   The  Board  affirmed the          decision and denied a subsequent motion to reopen.                                          I                                          I                    Petitioner asks that we  remand the case for  a hearing          on  the merits.   He asserts that  his attorney did  not file the          application  on  June 16  because  the  immigration judge  stated          during  the February  27 hearing that  the application  should be          filed ten days prior to  the hearing.  As a result,  his attorney          allegedly met  the deadline  by sending the  application thirteen          days  prior  to the  postponed  hearing  date  of  September  28.          Because  the record clearly states that the application was to be          filed  by June 16,  petitioner's attorney contends that the judge          must have made  the statement on which he relies  off the record.          Moreover, he  pleads that  the immigration judge  stated that  no          application  had  been  filed  when  he  ordered  deportation  on          September 18.   From this, petitioner's attorney  infers that the          immigration  judge also  believed  the relevant  filing date  was          September 18 and that the judge only ordered  deportation because          he had not received, through some error, the application filed on          September  14.     Petitioner   finally  urges  that   remand  is          appropriate  because the  application was  filed late due  to the          attorney's error  (not  petitioner's) and  because  no  prejudice          occurred as a result of the tardy submission.                                         -3-                    Board  regulations  authorize an  immigration  judge to          "set  and extend time limits for the  filing of applications."  8          C.F.R.    3.31(c)  (1993).   Applications  not  timely filed  are          deemed waived or abandoned.  Id.  The Board found,  and we agree,                                       ___          that the record  clearly states  that the application  was to  be          filed by June 16.2   Since  the application was  not filed  until          September 14, the Board found the application waived and affirmed          the immigration judge's deportation order.                      Petitioner proposes no substantial argument against the          Board's decision.   Petitioner first emphasizes  that his counsel          recalls that the time  limit specified was ten days prior  to the          hearing and that the immigration judge waited until  September 18          to order deportation.  We cannot draw the inference he desires --          i.e., that the immigration judge also thought the application due          only ten days before  the rescheduled hearing -- in  light of the          plain  evidence  in the  record that  the  deadline was  June 16.          Perhaps, for  example, the  immigration judge did  not issue  the          order until September 18 because he reviewed his calendar on that          day;  we can  only speculate, a  procedure contrary  to appellate          review.  Second, failure to comply with time limitations is often          the  fault of  counsel rather  than the  client, and  clients are          bound  by the conduct of  their attorneys.  See Magallanes-Dami n                                                      ___ _________________          v. INS, 783  F.2d 931, 934 (9th Cir. 1986).  Time limits would be             ___                                        ____________________          2  The immigration judge stated at the February 27 hearing:  "I'd          ask that you  file that [application  for section 212(c)  relief]          not  later  than  June  16,  1989,  along  with   any  supporting          documents.  And we'll be adjourned then to June 26 at 8:00 in the          morning."                                         -4-          meaningless if we excused counsel's mistakes every time the error          prejudiced  the client.   Finally,  while petitioner  contends no          prejudice   has  occurred,   these  appellate   proceedings  have          substantially  delayed  petitioner's   deportation  despite   his          eligibility  for  deportation  under    241(a)(11).    Since  the          Board's  factual finding  that  petitioner untimely  filed his             212(c) application  is supported  by substantial evidence  in the          record, we affirm  its decision to affirm the  deportation order.          See Gouveia v. INS, 980 F.2d 814, 818 (1st Cir. 1992) ("[A] court          ___ _______    ___          must accept the  Board's factual determinations  so long as  they          are  supported  by substantial  evidence  .  . .  .")  (citations          omitted).                                          II                                          II                    The authority of the Board  or the Attorney General  to          reopen   a   deportation   proceeding  "derive[s]   solely   from          regulations  promulgated  by  the  Attorney  General."    INS  v.                                                                    ___          Doherty,  112 S. Ct. 719,  724 (1992) (citing  INS v. R o-Pineda,          _______                                        ___    __________          471 U.S.  444, 446 (1985)).   A motion to reopen  or reconsider a          final decision will not be granted unless petitioner presents new          material evidence previously  unavailable or identifies  a change          in the  applicable statutory or case  law.  See 8  C.F.R.   3.2;3                                                      ___          Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).  As a general          _______________          matter,  motions to reopen are  disfavored.  See  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          proceeding lies within the Board's discretion.  See id.; Williams                                                          ___ ___  ________          v. INS, 773 F.2d 8, 9 (1st Cir. 1985).  In the past we  have held             ___          that "'[t]he denial [of a motion to reopen] will be upheld unless          it was made without a rational explanation, inexplicably departed          from established  policies, or  rested on an  impermissible basis          such  as invidious  discrimination against  a particular  race or          group.'"   Williams, 773 F.2d at  9 (quoting Leblanc v.  INS, 715                     ________                          _______     ___          F.2d  685, 693 (1st Cir.  1983)).  This  standard is particularly          appropriate where  waiver of  deportation  under    212(c) is  in          issue  because whether  waiver is  granted is  firmly within  the          Board's discretion  and  depends  on  a balance  of  "social  and          humane" factors.  See Gouveia, 980 F.2d at 816.                            ___ _______                    Under  the above  standard,  the  Board's  decision  is          unassailable.  The only new evidence that petitioner offered is a          detailed affidavit from his attorney concerning the circumstances          of  his misunderstanding.4   As the Board  explained, however, it          considered counsel's error and found  that even if the proceeding          were reopened, the attorney's affidavit was not likely to  change          its  finding  that the  waiver  application  had been  abandoned.          Petitioner has not cited any change in the applicable law.                    We therefore affirm the decisions of the Board.                                        ____________________          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          not specifically oppose reopening the case.                                         -6-
