USCA1 Opinion

June 27, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2293
MARTA LEYLA HERNANDEZ PINEDA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________

Raymond Rivera on brief for petitioner.

______________
Frank W. Hunger, Assistant Attorney General, Mark C. Walte
________________
_______________
Assistant Director, Office of Immigration Litigation, and Kristen
_______
Giuffreda, Attorney, Civil Division, U.S. Department of Justi

_________
Office of Immigration Litigation, on brief for respondent.
____________________
____________________

Per Curiam.
___________
Pineda,

a citizen

review of an order
Board)

denying her

Petitioner

of Nicaragua,

Marta

has

Leyla

Hernandez

filed a

petition for

of the Board of Immigration

Appeals (the

motions to reopen

and reconsider.

She

sought to have the Board reconsider its final decision, dated

July 6, 1993,
immigration
suspension of

dismissing her
judge

which

appeal from the

denied

deportation and

her

asylum.

The

order of

the

applications

for

Board dismissed

the appeal as untimely.

I.
_
Petitioner

illegally entered the

United States in

July 1984.
issued

The

Immigration and Naturalization Service (INS)

an order

to show cause

petitioner's failure
entering

on April 26,

1991, based on

to present herself for

this country.

See
___

8 U.S.C.

inspection upon

1251(a)(1)(B).

hearing was held before an immigration judge.

represented

by

counsel

deportability and

hearing.

a hearing

She

conceded

judge that

1158,

she

and suspension,

on these

applications was

Although petitioner had requested,

a postponement

of the

hearing on

the ground

was seeking new counsel, she appeared pro se at the

In an oral

both applications.
appeal

time.

immigration

see 8 U.S.C.
___

held on January 14, 1992.

that she

Petitioner was

1254.

Accordingly,

and received,

this

informed the

would apply for asylum,

see 8 U.S.C.
___

at

this decision

decision, the immigration judge denied

Petitioner then expressed

to

the Board.

At this

her desire to
point,

the

immigration judge stated:

And if you decide to appeal, the
appeal deadline is January 24, '92. Now
___
I'm handing you the appeal forms which
_________________________________________
must be filed by the deadline date. And
___________________________________
a form that you were given before, a 618
form that explains your appeal rights.
Now, if you want to appeal, the fee for
an appeal has to be filed here at this
office. And then the appeal form has to
be mailed to my office in Arlington,
Virginia. And I'll give you the address.
We'll find the address.
I'm going to
give you a summary of my decision and
order and my address is listed at the top
of that form.
And I'm going to add our
phone number there, too. Now if you hire
a lawyer to help you with the appeal, the
lawyer
needs to fill
out the gold
appearance form.
Administrative Record, at 123-24 (emphasis added).
On January
of

22, 1992, petitioner asked

time to file her appeal.

She was notified of the denial

of her request on January 24th.

to
her

send her appeal.

on

January 27th

appeal forms.
In

for an extension

She then used next-day mail

However, her documents were returned to

because she

had

not used

the proper

By this time, petitioner had retained counsel.

March 1992, he filed

an appeal using

the correct forms,

but had not made out the money order for the fee to the right
entity.
several

The appeal was perfected in April.

extensions of

time, petitioner

support of her appeal in October 1992.

-3-

After receiving

filed her

brief in

On

July

6,

1993,

the

dismissing petitioner's appeal as

Board

issued

untimely.

reopening and reconsideration ensued.

Petitioner argued that

an error in its decision.

petitioner claimed

that, at

She

acknowledged that she

January

24,

1992 deadline

mailing

her

appeal on

deadline.

She also

the local

INS

and

she had

not been

she

that by

whom the

money

had

not

been

order

that when

her on January 27th, she

her appeal

by the

misinformed by

Further, she pointed out

her appeal was returned to

that

to

the

express-

had appealed

argued that she had been

office concerning

anyone

had been told of

asserted

the 24th,

should be made payable.

by

the hearing,

Specifically,

that she was required to use specific forms to file

an appeal.

told

order

The motions for

the Board had made

informed

its

was not
perfected

according to the regulations.

She next

asserted that to reject

had been

"timely appealed but untimely

process.

That

is, she went on, she

when she had "fully complied" with

her.

Finally,

her appeal which

filed," violated due

should not be penalized

the instructions given to

petitioner maintained

that the

immigration

judge violated due process when she failed to tell petitioner

about

the correct

forms even

though the

immigration judge

knew that petitioner was proceeding without counsel.

The
motion.

Board,

As for

in

the

per curiam

request for

order,

denied

reconsideration,

the

it re-

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examined its decision in light of petitioner's arguments.

first

pointed out that the appeal was mailed, using next-day

delivery, on the day it was due.

Next, the Board stated that

the record revealed that the immigration judge had, in

handed the proper application
the

It

immigration

judge

instructions" concerning
filed and
considered

where the

forms to petitioner.

had

given

when and

fee should

Further,

petitioner

"explicit

where the form

should be

be paid.

the request for reopening.

hand, though,

fact,

Next, the

Board

It rejected it out of

because petitioner had failed

to submit "new,

previously unavailable evidence in support of her motion. . .

."

Administrative Record, at 2.
II.
__

In
the

determining motions

Board is

Gordon

&

exercising

S.

Mailman,

to reopen

and reconsider,

"discretionary authority."

C.

Immigration Law and Procedure

________________________________

305[7][a], at 3-68 (rev. ed.

1993) (footnote omitted).

"In

reviewing a discretionary decision of the Board, we determine

only whether
abuse

the decision

of discretion."

was arbitrary, capricious,

Martinez v. I.N.S., 970 F.2d 973, 974

________
______

(1st

Cir. 1992); LeBlanc v.

_______

Cir.

1983) (court

Board unless it

I.N.S., 715 F.2d

______

will uphold

or was based

such as race discrimination).

685, 693 (1st

discretionary action

had no rational explanation,

established policies,

or an

of the

did not follow

on impermissible grounds

As for the Board's findings of

-5-

fact,

we

standard."
U.S.C.

review

them

under

Martinez, 970
________
1105a(a)(4),

the

"substantial

F.2d at 974.

"findings

of fact,

As set

evidence
forth in 8

if supported

by

reasonable, substantial, and probative evidence on the record

considered as a whole, shall be conclusive. . . . "

A.

Motion to Reconsider
____________________

The

Board

found,

as

matters

of

fact,

that

petitioner had been given the appeal forms by the immigration

judge and had
is

been told where and when to

file them.

There

no question that the record supports these findings.

immigration
she

The

judge announced, at the end of the hearing, that

was handing the forms to petitioner.

She then explained

that the fee was to be paid at the immigration office and the
appeal

forms

Virginia.

sent

to

the immigration

judge's

office

in

In light of such clear record evidence, the Board

had the authority to

reject petitioner's contention that she

never received the forms.

Further,
filed

late

also

Petitioner argues
appeal was due.
(rather than

the Board's
is

finding that the

supported

that

by

January 24th

substantial
was

appeal.

evidence.

not the

Rather, she maintains that she

10) in which to

appeal was

Thus, the

day

the

had 13 days
return, on

January 27th, of petitioner's appeal materials indicates that

her

appeal

Petitioner

must

have

misreads

arrived within

the regulation;

-6-

the
the

13-day

period.

longer period

in

which

to file

an appeal

immigration judge is
_________________
See 8
___
(9th

C.F.R.

applies when

the decision of the

________________

mailed, not when the appeal

______

3.38(b); Da Cruz v. I.N.S., 4

________
______

Cir. 1993)

(where

decision of

is mailed.

F.3d 721, 722

immigration judge

was

mailed, petitioner had 13 days to file an appeal).

Based on
the

Board

did

the foregoing, there is

not

abuse

its

petitioner's motion to reconsider.

her appeal was late.

discretion

722;

Immigration Law and Procedure,

_____________________________

exercising
8

C.F.R.

Dec.

295

(1953);

3.05[4][a], at 3-54.

a heavy burden in showing

Board

reopen are disfavored and

I.N.S. v. Abudu, 485 U.S. 94,

______
_____
"the

&

Da Cruz, 4 F.3d
________

The Motion to Reopen

____________________

Motions to
bears

denying

Where an appeal is not taken within the

Matter of G.Z.,
_______________

B.

in

The facts establish that

10-day period, the right to appeal is lost.

at

no question that

is to

be

3.2, the

entitlement to this relief.

107, 110 (1988).

accorded a

its authority."

a petitioner

great deal

Given
of

leeway in

LeBlanc, 715 F.2d at 689.

_______

Board is

prohibited from

this,

Under

reopening a

proceeding
sought
could

"unless it

appears

to be offered is
not have

hearing. .

to the

material and was

been discovered or

. ."

Board that

"[m]otions to reopen shall

not available and

presented at

Similarly, 8 C.F.R.

evidence

the former

3.8(a)

states that

state the new facts to

be proved

at the reopened hearing . . . . "

-7-

Petitioner
that

she

available."

present

failed
"new

when

facts" that

previously

were

"not

Second, the "fact" that the notice of

petitioner mailed

appeal was

her

appeal papers

on

Her argument that she did not

late

because the

appeal after January 24th

INS continued

is not a "fact."

had made clear when to file

authority to grant
find

basic requirement

was late was established as early as January 24, 1992

appeal was due.

judge

the

First, petitioner knew that the appeal was to be

filed by January 24th.

appeal

to meet

the day

the

know that her

to process

her

The immigration

an appeal and her lack of

any extensions of time.

As

a result, we

that the Board did not abuse its discretion in refusing

to

reopen the

proceeding to

appeal to proceed.

allow petitioner's

late-filed

See Da Cruz, 4 F.3d at 722 (Board may not

___ _______

reopen a case "solely to allow a late appeal"); Matter of D.,

____________
5 I & N

Dec 520, 521 (1953) (same).

C.

Due Process Violation

_____________________

Petitioner maintains that by not informing her that

her appeal was late
during

the ensuing year and

procedural due
as

and by continuing to process

having

process rights.

made an

appeal as

a half, the

"abrupt

late on July 6,

She

Board violated her

characterizes the Board

change" when
1993.

the appeal

it

dismissed her

This change,

she goes on,

deprived her of the chance to "effectively" present her case.

-8-

To

establish a

due process

violation, petitioner

must "demonstrate prejudice which implicates

fairness of

the proceeding."

the fundamental

See Michelson v.
___ _________

I.N.S., 897
______

F.2d

465, 468

(10th Cir. 1990).

that by permitting her appeal

in

"summarily"

dismissing

Petitioner's

to proceed, the Board's action

it

was

constitute constitutional error.

petitioner

cites

in

support

so

(2d Cir.
Toquero
_______

1991),

of

her

challenges

to the

to

956 F.2d

sufficiency of the

to

involved

follow its own rules

926 F.2d 162,

166

regulations,

see
___

specific

193, 196

as

The cases

argument

Montilla v. I.N.S.,
________
______

challenges

v. I.N.S.,
______

arbitrary

We do not agree.

challenges to the failure of the INS to

and regulations, see
___

argument is

(9th Cir.

1992), or

procedures used

in a

specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37

___ ______
_________
(1982).
In

contrast, petitioner

that

in

following the applicable regulation concerning the filing

_________

of

timely appeals,
Although

the Board

complains

violated her due

here

process rights.

it would have been better if the Board had notified

petitioner earlier in the appeals process that her appeal was

late,

it was not constitutional error to deny the motions to

reopen and reconsider.

III.
___
Because

this

petition

presents

no

substantial

question, we summarily affirm the decision of the Board.

-9-

See
___

1st Cir. Rule 27.1.

-10-