
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1224                                    LUCAS P. BAEZ,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                              _________________________                        ON PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                              _________________________                                        Before                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                              _________________________               Paul F. Murphy,  with whom  MacDonald, Murphy &  May was  on               ______________              ________________________          brief, for petitioner.               Joan E. Smiley, Attorney, Office  of Immigration Litigation,               ______________          Civil Division, Department of Justice, with whom Frank W. Hunger,                                                           _______________          Assistant Attorney  General,  Civil Division,  and  Lauri  Steven                                                              _____________          Filppu,  Attorney,  Office  of Immigration  Litigation,  were  on          ______          brief, for respondent.                              _________________________                                   December 6, 1994                              _________________________                    SELYA, Circuit  Judge.  Petitioner Lucas  P. Baez, also                    SELYA, Circuit  Judge.                           ______________          known as Lucas Porfirio Baez-Soto,  also known as Domingo Guzman,          an alien who was deported following a state narcotics conviction,          attempts to  challenge the  refusal of  the Board of  Immigration          Appeals  (BIA or  Board) to  reopen its  decision to  deny him  a          waiver of  deportability.  Petitioner's case  requires this court          to  make its  initial  interpretation of  the jurisdictional  bar          contained  in  the departure  clause  of  section  106(c) of  the          Immigration and  Nationality Act (the  Act), 8 U.S.C.    1105a(c)          (1988).1   The  courts of  appeals have  divided on  whether this          statute signifies what it  appears to say.  We conclude  that the          statute's plain meaning must  prevail, and, therefore, an alien's          departure  from   the  United   States,   whether  voluntary   or          involuntary,  deprives the  federal  courts  of  jurisdiction  to          entertain  challenges  to  an antecedent  order  of  deportation.          Because the  instant petition solicits judicial  inquiry into the          correctness  of  the   deportation  order   that  brought   about          petitioner's  departure,  we dismiss  it  for  want of  appellate          jurisdiction.          I.  BACKGROUND          I.  BACKGROUND                    Petitioner  is a  native and  citizen of  the Dominican          Republic.  He  lawfully entered the United  States as a child  in          1972.  In  1986, he was convicted in  a Massachusetts state court                                        ____________________               1The statute provides in  material part that "[a]n  order of          deportation . . . shall not be reviewed by any court if the alien          . . . has departed  from the United States after the  issuance of          the order."  8 U.S.C.   1105a(c) (1988).                                          2          of   distributing  cocaine,   and  received   a  five-to-ten-year          incarcerative sentence.  An alien's  commission of a serious drug          offense invites deportation.  See 8 U.S.C.    1251(a)(11) (1988);                                        ___          see also 8 U.S.C.A.   1251(a)(2)(B)(i) (West Supp. 1994) (current          ___ ____          version).  Adhering to the statutory scheme,  the Immigration and          Naturalization Service (INS) issued an order asking petitioner to          show cause why he should not be deported.                    Following petitioner's release from  prison in 1988, an          immigration judge  (IJ) held a  hearing on the  show-cause order.          Under section 212(c) of the Act,  8 U.S.C.   1182(c), a  lawfully          admitted resident  alien domiciled in  this country for  no fewer          than  seven years who  has been convicted  of a drug  offense may          secure relief from deportation on the basis of that conviction if          the  Attorney General determines that  a waiver appears  to be in          the national  interest because  social and  humane considerations          outweigh   the   adverse    factors   evidencing   the    alien's          undesirability.2  See Gouveia  v. INS, 980 F.2d 814,  816-19 (1st                            ___ _______     ___          Cir. 1992) (elucidating balancing test); Matter of Marin, 16 I. &                                                   _______________          N. Dec. 581 (BIA 1978) (similar).  During the hearing, petitioner          conceded deportability, invoked  section 212(c), and  requested a          discretionary waiver.  On June 16, 1989, the IJ issued a decision          favorable  to  petitioner.    The judge  noted  adverse  factors,                                        ____________________               2The  Attorney General has duly  delegated this power to her          subordinates  within the  INS  apparatus, with  the proviso  that          applications "for the exercise of discretion under section 212(c)          of the Act shall  be submitted .  . . to:   (1) the  [appropriate          regional]  director . . .;  or (2) the  Office of the Immigration          Judge . . . ."  8 C.F.R.   212.3(a) (1994).                                          3          including  petitioner's cocaine  conviction  and  neglect of  his          children, but  found those  factors overbalanced  by petitioner's          extended residence, family ties, and the like.                    The INS appealed the  IJ's decision to the BIA.   Under          the  briefing order applicable to  its appeal, the  INS had until          August 23, 1990,  to file  its brief, but  the matter  apparently          fell between the cracks.  On August 28, petitioner filed a motion          to dismiss  the appeal with the IJ.  The INS responded by serving          the  wayward   brief  the  next  day   and,  shortly  thereafter,          submitting  its formal  opposition to the  dismissal motion.   In          early September, petitioner, apparently realizing  belatedly that          his motion should have  been filed with  the BIA rather than  the          IJ, refiled it  with the  BIA.  After  an unexplained  three-year          lull, the  BIA issued an order on September 30, 1993, in which it          reversed  the IJ's  decision, denied  petitioner's request  for a          waiver, and ordered him deported.                    On  November 22, 1993,  at 11:15 p.m.,  Paul F. Murphy,          counsel of record  for the petitioner, received  a telephone call          from  petitioner's sister  informing him that  the INS  had taken          petitioner  into custody  that  day and  intended  to deport  him          posthaste.   Attorney Murphy claims  that, as of  that moment, he          did not know of the Board's September 30 decision.  The next day,          the lawyer moved to stay deportation and  reopen the proceedings.          He filed these  motions at  the IJ's chambers  in Boston.   Early          that afternoon, the motions were forwarded to the BIA's office in          Falls Church, Virginia.  At 2:00 p.m., Attorney Murphy telephoned                                          4          the BIA and  supplied an  oral statement in  order to  facilitate          immediate  review of  the motion  to stay  deportation.   At 4:30          p.m., the BIA  notified Attorney  Murphy that it  had denied  the          stay because the  single member who  considered the matter  found          that the motion to reopen had little likelihood of success.3                    The INS deported petitioner  on November 24, 1993.   On          December 13, in pursuance of the  applicable regulation, 8 C.F.R.            3.2 (1994),  the BIA effectively denied petitioner's  motion to          reopen,  deeming it to be withdrawn by virtue of his deportation.          On  March  10, 1994,  petitioner  sought judicial  review  of the          "denial" of his motion to  reopen.  See 8 U.S.C.A.    1105a (West                                              ___          1970 & Supp. 1994) (prescribing the procedure for review of final          deportation orders in the  courts of appeals); see also  Giova v.                                                         ___ ____  _____          Rosenberg,  379 U.S. 18, 18 (1964) (per curiam) (holding that the          _________          BIA's  denial of a motion to reopen a deportation proceeding is a          judicially reviewable final order).  The petition appears to have          been filed within the time span fixed by statute.4                                        ____________________               3Petitioner did not seek judicial review of  the BIA's order          within  the time  then  allotted by  statute,  see 8  U.S.C.A.                                                            ___          1105a(a)(1)  (West  Supp.  1994) (providing  that  petitions  for          judicial review of such orders must be filed within 90 days); see                                                                        ___          also infra  note 4, despite the  fact that the time  for doing so          ____ _____          had not yet expired.  By  the same token, petitioner did not seek          a stay from this court.               4In 1990, Congress amended 8  U.S.C.   1105a(a)(1) to reduce          to 30 days the period within which an alien convicted of  certain          aggravated felonies on or after November 18, 1988 might  petition          for judicial review.   See Immigration Act of  1990, Pub. L.  No.                                 ___          101-649    502(a), 104 Stat.  4978 (1990).   Because petitioner's          conviction  occurred in  1986, he  had 90  days, rather  than 30,          within which  to file his  petition in this  court, see id.  at                                                                ___ ___          545(b)(1).                    INS nevertheless  argues that, because the  petition to                                          5          II.  THE PROFFERS ON APPEAL          II.  THE PROFFERS ON APPEAL                    An  INS  regulation  provides in  pertinent  part  that          "[t]he decision of the [BIA] shall be in writing . . . and a copy          shall be served upon  the alien or party affected  as provided in          part 292 of this chapter."  8 C.F.R.   3.1(f) (1994).  The cross-          referenced regulation stipulates that  service may be effected by          mail  upon  "the attorney  or  representative of  record,  or the          person  himself if unrepresented."   8 C.F.R.    292.5(a) (1994).          At all times material hereto, Murphy was petitioner's attorney of          record.   He claims  not to have  received timeous notice  of the          BIA's  September 30  decision.   Desiring to  shed light  on this          factual issue, we authorized  the parties to submit fact-specific          proffers  anent  the notification  issue.   See  Bemis  v. United                                                      ___  _____     ______          States,  30  F.3d 220,  222 &  n.2  (1st Cir.  1994) (authorizing          ______          factual proffers on appeal).                    Petitioner  submitted an  affidavit signed  by Attorney          Murphy's secretary,  Montsie Moreno, stating that  she sorted the          lawyer's mail  during October of 1993, but did not receive a copy                                        ____________________          review  was  not  filed  within  90  days  of  the  date  of  the          deportation  order  (September   30,  1993),  this  court   lacks          jurisdiction to review that  decision. INS's view is problematic.          Compare  Fleary  v.  INS, 950  F.2d  711,  713  (11th Cir.  1992)          _______  ______      ___          (reaching opposite conclusion  after considering 1990  amendments          to  the Act) and Fuentes v. INS, 746  F.2d 94, 97 (1st Cir. 1984)                       ___ _______    ___          (similar; considering earlier version of  the Act) with Stone  v.                                                             ____ _____          INS,  13 F.3d  934, 936-39 (6th  Cir. 1994)  (contra; considering          ___          1990 amendments) and  Nocon v.  INS, 789 F.2d  1028, 1032-33  (3d                           ___  _____     ___          Cir.  1986) (same; considering earlier  version of the  Act).  We          need not probe this point, for even if INS is correct in its view            a matter  on which we do not pass    it has not argued that the          petition  for review is untimely as to the Board's jettisoning of          the motion to reopen.                                          6          of the BIA's decision  in that time frame.  For its part, the INS          submitted two  sworn declarations.   The declaration of  April M.          Verner, supervisory  case management analyst of  the BIA's Docket          Unit,  certified, based on her knowledge of BIA procedure and the          record of the case, that  a copy of the BIA's September  30, 1993          decision had been mailed  contemporaneously to Attorney Murphy at          6 Faneuil Hall Marketplace, Boston, MA 02109 (which was counsel's          address of  record  as  indicated  on  BIA  Form  EOIR-27,  dated          September 7, 1990).                    The   second   declaration   dovetails  with   Verner's          statement but goes on  to strike a somewhat different chord.   In          it, Judith E. Arnott,  the Boston-based INS officer who  made the          arrangements for petitioner's  deportation, observed that  a copy          of  Form I-294 (the  official notice  of the  country to  which a          particular individual's deportation is  directed) had been mailed          to  Attorney  Murphy  at  his  address of  record  shortly  after          petitioner's deportation,  and that  the mailing was  returned to          the INS  on December 7,  1993, marked "forwarding  time expired."          Ms. Arnott added that  neither petitioner nor his representative,          Attorney  Murphy, ever  requested the  district director  to stay          petitioner's deportation.                    The  parties  filed  no  further  proffers.    At  oral          argument, however,  Attorney Murphy advised that  he continued to          maintain an office at 6 Faneuil Hall Marketplace and implied that          he had never arranged  to have mail forwarded from  that address.          Nevertheless,  he  conceded  that,  in  the  fall  of  1993,  his                                          7          principal offices  were located  elsewhere, and the  Faneuil Hall          office  was checked  for  mail at  infrequent intervals  (perhaps          twice a week).          III.  ISSUES PRESENTED          III.  ISSUES PRESENTED                    Petitioner  contends that  several errors  infected the          process leading to his  deportation.  First, he asseverates  that          the INS's failure punctually  to file its brief deprived  the BIA          of jurisdiction  to hear  the initial appeal,  and, consequently,          that the  IJ's decision  upholding petitioner's entitlement  to a          section 212(c) waiver became final agency action (or, put another          way, that the BIA's reversal  of the IJ's ruling had no  force or          effect  because the  BIA's  jurisdiction had  been pretermitted).          Second, petitioner asseverates  that, in violation  of applicable          statutory  and administrative  rules,  the BIA  did not  properly          notify his counsel of  its September 30 decision and,  therefore,          deported  petitioner  without requisite  notice.    See, e.g.,  8                                                              ___  ____          C.F.R.    243.3(b)  (1994)  (providing that  a deportation  order          "shall be executed no sooner  than 72 hours after service  of the          decision").                    We  are   powerless  to  reach  the   merits  of  these          asseverations,  however,  for  petitioner's deportation  deprives          this court of  subject matter jurisdiction  over the request  for          judicial review.          IV.  ANALYSIS          IV.  ANALYSIS                    Section 106(c) of the Act, 8  U.S.C.   1105a(c), quoted          supra note  1, is absolute  on its  face.  It  stipulates that  a          _____                                          8          deportation order "shall not  be reviewed by any court"  once the          alien  has departed.   This  flat rule  is couched  in obligatory          terms   that  reflect   Congress's  determination   to  eliminate          repetitive and unjustified appeals.  See H.R. Rep. No. 1086, 87th                                               ___          Cong.,  1st Sess.  (1961), reprinted  in 1961  U.S.C.C.A.N. 2950,                                     _________  __          2971-72.                    Despite the unambiguous language  of the statute,  some          courts, presumably troubled by its rigidity, have read exceptions          into  it,  thereby softening  its  impact  and authorizing  post-          deportation  judicial  review under  certain circumstances.   The          Ninth Circuit pioneered this view in Mendez  v. INS, 563 F.2d 956                                               ______     ___          (9th Cir. 1977).   There, an alien who  had been deported without          notice  to his counsel, on the basis  of a sentence that had been          vacated prior to deportation, pressed forward with a petition for          judicial review  of the deportation order.  The court entertained          the  petition  and ordered  the  alien readmitted  to  the United          States.  See id. at 959.  In reaching this result, the court read                   ___ ___          section 1105a(c) as a conditional,  rather than an absolute, bar,          opining  that "`departure'  in the  context of  8 U.S.C.    1105a          cannot   mean  `departure  in  contravention  of  procedural  due          process.'"   Id.  at 958.   On  this basis,  the court  held that                       ___          "`departure' means `legally executed'  departure when effected by          the government."  Id.                            ___                    Since the first seed was sown, the Mendez exception has                                                       ______          mushroomed  in  the  Ninth Circuit.    Today,  that court  allows          judicial review  of  deported  aliens'  claims  in  an  array  of                                          9          situations.   See,  e.g., Zepeda-Melendez v.  INS, 741  F.2d 285,                        ___   ____  _______________     ___          287-88  (9th  Cir. 1984)  (entertaining  petition  on claim  that          deportation occurred without notice to counsel); Thorsteinsson v.                                                           _____________          INS, 724  F.2d 1365,  1367-68 (9th  Cir.) (indicating that  court          ___          would  entertain  petition  on  claim  that  deportation occurred          through ineffective  assistance of  counsel),  cert. denied,  467                                                         _____ ______          U.S. 1205 (1984);  Estrada-Rosales v. INS,  645 F.2d 819,  820-21                             _______________    ___          (9th Cir. 1981) (entertaining  petition on claim that deportation          was based on invalid conviction).                    Mendez has  not fared  as well outside  its birthplace.                    ______          To the  limited extent that  the decision has  evoked admiration,          its admirers have doused it with faint praise.  A decade ago, the          Sixth  Circuit referred  to the  Mendez exception  in approbatory                                           ______          terms, but did not squarely adopt it, see Juarez v. INS, 732 F.2d                                                ___ ______    ___          58, 59-60 (6th  Cir. 1984)  (citing Mendez in  connection with  a                                              ______          discussion  of an  alien's administrative  remedies), and  to our          knowledge has  not  revisited the  question.   More  recently,  a          diluted version  of the Mendez  exception has been  afforded safe                                  ______          passage  in two other courts  of appeals.   See Camacho-Bordes v.                                                      ___ ______________          INS,  33  F.3d 26,  27-28  (8th  Cir. 1994)  (hypothesizing  that          ___          judicial review should be permitted, notwithstanding execution of          a  deportation order,  if a  "colorable" claim  of a  due process          violation  emerges); Marrero v. INS,  990 F.2d 772,  777 (3d Cir.                               _______    ___          1993) (same).                    At  least  three other  circuits  have  given Mendez  a                                                                  ______          distinctly  unfavorable reception.   In  Umanzor v.  Lambert, 782                                                   _______     _______                                          10          F.2d 1299  (5th Cir. 1986), the Fifth  Circuit professed "serious          reservations" about the Mendez court's holding, and noted that it                                  ______          had  become  a  "sinkhole  that  has  swallowed  the  rule  of             1105a(c)."   Id. at  1303 &  n.5.   The  Fifth Circuit  expressly                       ___          rejected  Mendez in  a subsequent  case, explaining  that section                    ______          1105a(c) was written in plain language that brooked no exceptions          to  the jurisdictional  bar.  See  Quezada v. INS,  898 F.2d 474,                                        ___  _______    ___          476-77 (5th Cir. 1990).  The  Tenth Circuit also adopted a strict          interpretation  of section  1105a(c), ruling  that the  statute's          "unequivocal" language does not permit a Mendez-type exception to                                                   ______          flourish.   Saadi v. INS, 912 F.2d 428, 428 (10th Cir. 1990) (per                      _____    ___          curiam).   The  Second  Circuit recently  joined the  lengthening          anti-Mendez  parade.  See Roldan v. Racette,  984 F.2d 85, 90 (2d               ______           ___ ______    _______          Cir.  1993)  (observing  that  "[t]he  pertinent  language  of             1105a(c) constitutes a clear jurisdictional bar, and admits of no          exceptions").  Still another court of  appeals has signalled that          it is skeptical of Mendez.  See Joehar  v. INS, 957 F.2d 887, 890                             ______   ___ ______     ___          (D.C. Cir. 1992)  (declining to consider the  Mendez exception in                                                        ______          respect to an alien who had departed voluntarily).5                                        ____________________               5In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the                   _____________    _____________          Supreme  Court held  that  due process  requires that  collateral          review of  a  deportation  order be  available  in  a  subsequent          criminal  prosecution  for   unlawful  reentry  when  substantial          defects  in the underlying  administrative proceedings foreclosed          direct judicial  review.  Id. at 838.  In dissent, Justice Scalia                                    ___          suggested  that  the majority's  opinion necessarily  betokened a          rejection of  the Mendez holding.   See  id. at 849  (Scalia, J.,                            ______            ___  ___          dissenting).   But  Justice Marshall,  writing for  the majority,          took pains  to "express  no view"  on Mendez.   Id. at  837 n.13.                                                ______    ___          Thus, we take the  majority's disclaimer at face value  and treat          the question as an open one.                                          11                    We reject the Mendez exception.  Although Mendez itself                                  ______                      ______          presented  a compelling case on its peculiar facts and the desire          to  afford relief is understandable on that plane, we believe the          court's  willingness  to  take  liberties with  the  language  of          section  1105a(c) is mischievous and has produced bad law.6  This          straining,  dubious at the time,  has been rendered  all the more          suspect  by  recent  Supreme   Court  opinions  emphasizing   the          importance of a  statute's text  and plain meaning.   See,  e.g.,                                                                ___   ____          Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct.  2589, 2594-          ________________    ____________________          95 (1992); West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-                     ___________________________    _____          99 (1991); United States v. Ron Pair Enters., Inc., 489 U.S. 235,                     _____________    ______________________          241 (1989); see generally David L. Shapiro, Continuity and Change                      ___ _________                   _____________________          in Statutory Interpretation,  67 N.Y.U.  L. Rev. 921,  921 &  n.2          ___________________________          (1992)  (noting judicial  efforts  to  narrow  interpretation  to          coincide with the statutory text and citing recent examples).  To          embellish  section  1105a(c)  as  Mendez suggests  is  to  import                                            ______          ambiguity  into  words  that   are  as  unambiguous  as  ordinary          linguistic usage permits.  That  approach is unacceptable, for it          mutes the clarion  call that  Congress has sounded,  and, in  the          bargain,  muffles the  Court's string  of recent  "plain meaning"          cases.                    We think that the proper approach to construing section          1105a(c) is to begin with  the text of the statute and  grant its                                        ____________________               6One is reminded of  Lord Campbell's admonition that  "it is          the duty of  all courts of justice to take  care, for the general          good  of the  community, that  hard cases do  not make  bad law."          East India Co. v. Paul, 7 Moo. 85, 111 (P.C. 1849).          ______________    ____                                          12          words their ordinary meanings.  See Ardestani v. INS, 112 S.  Ct.                                          ___ _________    ___          515,  519 (1991);  Heno v.  FDIC, 20  F.3d 1204,  1207  (1st Cir.                             ____     ____          1994); United  States v. Charles  George Trucking  Co., 823  F.2d                 ______________    _____________________________          685, 688  (1st Cir.  1987).   Beginning  in this  way brings  our          inquiry swiftly to a close, for the plain language of the statute          prohibits judicial review of  a deportation order once the  order          has been  executed.  There is  certainly no slack  in the command          that the  order "shall not be reviewed by any court."  Having set          out  this command,  the statute  contains no  mention that  it is          subject  to any exceptions.   And contrary to  the Mendez court's                                                             ______          view,  563  F.2d at  958, we  do not  believe  that there  is any          principled way  to interpret the  word "departed"  as failing  to          encompass  the most  relevant  type of  departures    involuntary          departures  by  way  of  deportation.   See  Webster's  Third New                                                  ___  ____________________          International Dictionary 604 (1986) (defining "depart" to include          ________________________          "to go forth or away:  set forth:  LEAVE").                    When Congress  plainly marks a path,  courts are seldom          free  to leave  it and  roam at  will  in the  surrounding veldt.          Section  1105a(c) falls within this general rule.  Having found a          clear  meaning in the unvarnished language of the statute, we are          duty bound to  honor that meaning, not to alter  it by applying a          judicial gloss.                    Of course, there are exceptions  to this rule, such  as          when  statutory  language, though  unambiguous, leads  to results          that are absurd  or are  diametrically opposed  to the  drafters'          discernible  intentions.   See  Griffin v.  Oceanic  Contractors,                                     ___  _______     _____________________                                          13          Inc., 458 U.S. 564, 571, 575 (1982); Rubin v. United States,  449          ____                                 _____    _____________          U.S. 424,  430 (1981).   But  the terrain  on which this  statute          rests is  inhospitable to the  cultivation of  such an  exception          because the  statute, read  literally, yields a  sensible result.          On  the  whole,  a   literal  reading  helps  promote  Congress's          intention to eliminate excessive appeals and lend finality to the          deportation  process.     A   judge-made  exception  to   section          1105a(c)'s jurisdictional  bar, even  one limited  to "colorable"          due  process claims   whatever  that term may  eventually come to          mean     can  too  easily  expand  to  engulf  the  general  rule          prohibiting  review,  see Umanzor,  782  F.2d  at 1303  n.5,  and                                ___ _______          thereby  thwart achievement of the congressional  goal.  We think          it is elementary  that a construction which emasculates a statute          is not eagerly to be embraced.7                    Nor can  petitioner's professions of good  faith make a          significant difference.  Although there is  no evidence that Baez          is  seeking  to  abuse  the  appellate  process,  his  individual          circumstances  are insufficient  to  protect him  from the  plain          language of  the statute.  As  we have noted before,  "[t]hat the          reasons for  Congress's decision to  adopt a particular  rule may          not be  present in an individual  case . . .  is no justification                                        ____________________               7Moreover, the strict construction  that the language of the          statute demands passes constitutional muster.  Congress has broad          discretion to restrict access  to the lower federal courts.   See                                                                        ___          Ankenbrandt v.  Richards, 112 S.  Ct. 2206, 2212  (1992) (listing          ___________     ________          cases).   Hence, we perceive  no constitutional infirmity  in the          outright   denial  of  appellate   review  following  an  alien's          deportation.     See  Roldan,   984  F.2d  at   90-91  (upholding                           ___  ______          constitutionality of    1105a(c) as jurisdictional  bar to habeas          corpus); Umanzor, 782 F.2d at 1304 (same).                   _______                                          14          for  failing to give  effect to the  rule in  that case."   In re                                                                      _____          Plaza  de Diego Shopping Ctr., Inc., 911  F.2d 820, 832 n.20 (1st          ___________________________________          Cir. 1990).                    We  add an  eschatocol of  sorts.  Even  if we  were to          acknowledge  that some  extreme situations,  such as  a knowingly          unlawful  deportation by  the  INS for  the  specific purpose  of          shortstopping  an  alien's  right  to review,  might  justify  an          exception to section 1105a(c)'s jurisdictional  bar, petitioner's          claims are  not of  this stripe.   His case hinges  on a  pair of          grievances.   Insofar as it  depends on INS's  deviation from the          briefing schedule, it is baseless; the BIA has wide discretion in          administering compliance with briefing orders and determining the          consequences of a late  submission.  See, e.g., Getachew  v. INS,                                               ___  ____  ________     ___          25 F.3d  841,  845 (9th  Cir. 1994)  (finding no  error in  BIA's          discretionary decision  to accept  untimely brief from  INS); see                                                                        ___          also 8 C.F.R.   3.1(d)(1) (1994) (providing that "the Board shall          ____          exercise  such discretion and authority  . . .  as is appropriate          and necessary for  the disposition  of the case").   Here,  INS's          six-day delay  seems fribbling,  and  the BIA's  decision not  to          vitiate the appeal on  that ground strikes us as  both reasonable          and lawful.                    Similarly,  petitioner's  other   grievance  does   not          indicate the need for heroic measures.  The likely explanation of          Attorney Murphy's failure to receive his copy of the BIA decision          does not implicate purposeful  scheming by the INS,  but suggests          the  accidental misdelivery  of  properly addressed  mail by  the                                          15          postal  service   a vagary that plagues  us all.  And despite the          late notification,  Attorney Murphy still  had time to  present a          motion for  a stay of deportation to  a member of the  BIA.  Once          that motion  was denied, he  had open, but  chose not to  pursue,          several  other remedial  avenues,  including asking  the district          director or a  court for a stay of the  deportation order.  Under          the circumstances, we  do not think  that petitioner has  alleged          the  type of extreme unfairness that might warrant overriding the          plain language of the statute.          V.  CONCLUSION          V.  CONCLUSION                    We need go  no further.   We join  those of our  sister          circuits  that  have  followed  the  plain  language  of  section          1105a(c)  and  found  its  jurisdictional  bar  to  be  absolute.          Reading the statute in  that manner, the petitioner's involuntary          departure from the United  States deprives us of jurisdiction  to          examine  the correctness  of  either  the underlying  deportation          order or  the  Board's  disposition  of  the  motion  to  reopen.          Accordingly, the petition for judicial review is           Dismissed.          Dismissed.          _________                                          16
