Caseflicks

Court of Appeals for the Ninth Circuit • 1996

Samuel Martinez-Serrano v. Immigration and Naturalization Service

94 F.3d 1256 | 96 Cal. Daily Op. Serv. 6490 | 96 Daily Journal DAR 10674 | 1996 U.S. App. LEXIS 22407

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Takeaway

In short, this case holds that reopening motions do not extend the deadline to challenge an earlier deportation order, but the review period for a reopening denial begins only when the BIA properly mails its decision to the recorded address; a petitioner still must substantively brief the denial to obtain relief.

Background

Samuel Martinez-Serrano, a Mexican citizen, was placed in deportation proceedings after entering the United States without inspection. An Immigration Judge found him deportable and granted voluntary departure. Martinez-Serrano appealed to the Board of Immigration Appeals (BIA), but filed no promised supporting brief. In July 1991, the BIA dismissed his appeal, concluding that deportability had been established by clear, unequivocal, and convincing evidence.

In October 1991, Martinez-Serrano moved the BIA to reopen and reconsider. He sought a humanitarian waiver based on his efforts to help his three Mexican children cross the border when he was arrested, arguing that a statutory amendment made such relief available. The BIA denied the motion in June 1994. It explained that he had been charged with entry without inspection, not alien smuggling, and that the cited waiver provision did not apply to his 1990 conduct.

Although Martinez-Serrano's representative had informed the BIA of a new address in 1993, the BIA initially mailed its June 1994 decision to the old address. After recognizing the mistake, it mailed the decision to the correct address on July 22, 1994. Martinez-Serrano filed his petition for review on October 20, 1994. The Ninth Circuit considered both its jurisdiction over the petition and whether Martinez-Serrano had properly preserved a challenge to the denial of reopening and reconsideration.

Issues

Issue #1

Whether a timely petition for review of the BIA's denial of reopening or reconsideration also permits review of the BIA's earlier dismissal of the appeal from the Immigration Judge's deportability ruling.

Holding

No. The court lacked jurisdiction to review the BIA's 1991 dismissal because Martinez-Serrano did not petition for review within the statutory ninety-day period.

Reasoning

Under 8 U.S.C. § 1105a(a)(1), a petition for review had to be filed within ninety days after issuance of the final deportation order. The court treated that deadline as mandatory and jurisdictional.

Earlier Ninth Circuit cases had treated a motion to reopen or reconsider as tolling the time to seek review of the underlying deportation order. But the Supreme Court's intervening decision in Stone v. INS rejected that rule: an underlying deportation order remains final despite a later reconsideration motion, and review of that order must be sought within the specified period.

Martinez-Serrano filed no petition for review within ninety days of the BIA's July 1991 dismissal of his appeal. His 1994 petition, filed after the BIA denied reopening, could therefore reach only that later denial and not the earlier deportation ruling.

Issue #2

Whether the ninety-day period to seek review of the BIA's denial of reopening began when the BIA first mailed its decision to counsel's obsolete address or when it mailed the decision to counsel's properly recorded address.

Holding

It began when the BIA mailed the decision to the correct address; therefore, the petition for review of the denial of reopening and reconsideration was timely.

Reasoning

The statutory question was what constituted the 'date of issuance' of the BIA's final order. The Ninth Circuit had not previously resolved whether issuance occurred when the BIA mailed a decision to an outdated address despite having notice of counsel's new address.

The court adopted the approach of the Second and Fifth Circuits. Under that approach, the filing period begins only when the BIA complies with its service regulations by mailing its decision to the petitioner or counsel at the address properly recorded with the agency.

Martinez-Serrano's representative had notified the BIA of the address change well before the decision issued, but the BIA initially used the old address. Because the agency itself failed to comply with its mailing obligation, Martinez-Serrano could not be penalized by losing one-third of the statutory filing period. The later mailing to the correct address on July 22, 1994 started the ninety-day clock, making the October 20 petition timely.

Issue #3

Whether Martinez-Serrano preserved a challenge to the BIA's denial of his motion to reopen and reconsider.

Holding

No. He waived that challenge by failing to present argument showing that the BIA abused its discretion.

Reasoning

Federal Rule of Appellate Procedure 28 requires an appellant's brief to state contentions, supporting reasons, and relevant authority and record citations. In the Ninth Circuit, an issue mentioned without developed argument is treated as abandoned or waived.

Martinez-Serrano's opening brief argued only the timing of the filing period and the alleged error in the BIA's earlier dismissal of his appeal. It did not explain why the BIA abused its discretion in refusing to reopen or reconsider, including its conclusion that the requested smuggling-related waiver was unavailable because he was not charged with alien smuggling.

A party generally may not cure that omission by raising a new issue for the first time in a reply brief. Since Martinez-Serrano did not properly brief the only ruling over which the court had jurisdiction, the court denied the petition.