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Nocon v. Immigration and Naturalization Service

May 5, 1986

EDGARDO NOCON AND CHARITO NOCON, PETITIONERS
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review from an Order of the Board of Immigration Appeals BIA Docket Nos. A23 431 701 and A 23 427 007.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

In this petition for review we consider two questions: whether The Board of Immigration Appeals (BIA) abused its discretion in denying the petitioners' motion for reconsideration and whether the petitioners' failure to file timely a petition for review within six months of the final deportation order pursuant to 8 U.S.C. § 1105a(a)(1), though filing a timely motion for reconsideration with the BIA, bars our appellate review of the original final deportation order. This second question, involving a timeliness problem under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., presents for us an issue of first impression and constitutes the real crux of the appeal before us. Finding no abuse of discretion with regard to the Board's handling of the motion to reconsider and concluding that we have no jurisdiction to review the original deportation order, we will deny the petition for review.

I. The Case Before the BIA

The petitioners Edgardo Nocon and Charito Nocon are natives and citizens of the Philippines who entered the United States on February 20, 1980, as non-immigrant visitors for pleasure with permission to remain until March 31, 1980. This departure date was subsequently extended until June 11, 1980. When they failed to depart, the petitioners were summoned to a deportation hearing which commenced before an Immigration Judge on November 18, 1981. After a lengthy continuance, the hearing resumed on January 28, 1983 with additional evidence being offered on May 27, 1983 and June 20, 1983. The petitioners' counsel conceded deportability and submitted applications for asylum pursuant to § U.S.C. § 1158(a), and for the withholding of deportation pursuant to 8 U.S.C. § 1253(h). The Judge admitted into the hearing record an advisory opinion letter from the State Department counseling against the grant of asylum.

Following testimony by the petitioners and their witnesses to the effect that the petitioners would be arrested and persecuted under the Marcos regime if they returned to the Philippines because of their political affiliations, the Immigration Judge denied the requests for asylum and for the withholding of deportation on June 20, 1983. In his decision, the Judge concluded that the participation of the petitioners in political activity was "quite minimal", and was "basically in the nature of observing." The Judge further wrote that, "The Court is satisfied that neither of the (petitioners) have established that his life or freedom would be threatened in the Philippines on account of race, religion, nationality, membership in a particular social group, or because of political opinion. "The Judge then found both the petitioners to be deportable and granted them voluntary departure within thirty days.

On June 23, 1983, the petitioners filed an appeal to the BIA, which affirmed the denials of asylum and the withholding of deportation on October 11, 1984. Subsequently, on October 24, 1984, the petitioners moved to have the BIA reconsider its October 11, 1984 decision and offered three grounds: namely, 1) that they were the beneficiaries of a fourth preference visa petition;*fn1 2) that because a Philippine fourth preference visa had only a fourteen month waiting period, they would ask the BIA to withhold deportations and grant a one year voluntary departure; and 3) that there had not been a proper adjudication of the asylum petitions. This motion to reconsider was denied on April 30, 1985, on the grounds that neither the Immigration Judge nor the Board had the authority to grant extended voluntary departure and that the motion failed to state reasons for reconsideration or to cite pertinent precedent in compliance with 8 C.F.R. § 103.5 (1985).*fn2

On July 10, 1985, the petitioners filed a petition for review in the Court of Appeals, seeking review not only of the Board's April 30, 1985 order denying their motion for reconsideration, but also of the original final order of the BIA dated October 11, 1984 which affirmed the Immigration Judge's June 20, 1983 denial of their request for asylum and for the withholding of deportation. Because the petitioners are primarily interested in a review of the final deportation order, we turn to this issue first.

II. Jurisdictional Issue

In their petition for review the petitioners ask us to examine the Board's substantive denial of both asylum and of the withholding of deportation which was finalized in an order dated October 11, 1984. Given the governing statutory directive concerning the appropriate time for filing petitions for review and the applicable dates involved in this case, we are presented with a timeliness problem.

Under the Immigration and Nationality Act, once a final order of deportation has been issued, an alien has six months to file a petition for review of that order in a Court of Appeals. Specifically, the statute provides:

(1) a petition for review may be filed not later than six months from the date of the final deportation order or from the effective date of ...


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