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Green v. I.N.S.

filed: January 27, 1995.



Before: Greenberg and McKEE, Circuit Judges, and Pollak, District Judge*fn*

Author: Pollak


POLLAK, District Judge.

This case is about the negligent failure of an attorney representing a deportable alien -- a woman who has lived in the United States for twenty-five years and has a husband and two children who are American citizens -- to file with the immigration Judge in timely fashion an application for discretionary relief that, if found meritorious, would have saved his client from deportation. Because of the attorney's lapse, the immigration Judge (1) ruled that the intended application for discretionary relief had been abandoned, and (2) ordered the alien deported. On appeal to the Board of Immigration Appeals (Board), the alien's attorney sought to persuade the Board that his client should not suffer disadvantage because of his negligence; but the Board upheld the decision of the immigration Judge. On petition for review of the decision of the Board the attorney for the alien repeats and elaborates his plea of mea culpa. The attorney contends that the crucial ruling of the immigration Judge which the Board sustained -- the ruling that the attorney's failure to file the intended application for discretionary relief in timely fashion constituted an abandonment of the application -- worked a denial of due process to his client, since the immigration Judge had not warned the attorney of the potential adverse consequences of a failure to file on time. The attorney also challenges the ruling of the immigration Judge, sustained by the Board, as an abuse of discretion. We find no error in the decision of the Board and we therefore deny the petition for review.


In January of 1993 respondent Immigration and Naturalization Service (INS) served on petitioner Bibi Fazallah Green -- a citizen of Guyana who came to the United States as a student in 1969 and became a permanent resident in 1983 -- an order to show cause why she should not be deported. According to the INS order to show cause, Green had twice been convicted of possession of a controlled substance: both convictions were in a Pennsylvania state court, the first was in 1990, the second in 1992. The INS alleged that these convictions made Ms. Green subject to deportation under two distinct provisions of the Immigration and Nationality Act of 1952 ("the Act"). Section 241(a)(2)(B)(i) of the Act provides that, "upon the order of the Attorney General," "any alien who at any time after entry has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana . . . is deportable."*fn1 And section 241(a)(2)(A)(iii) of the Act provides that, "upon the order of the Attorney General," "any alien who is convicted of an aggravated felony at any time after entry is deportable."*fn2

Ms. Green retained Robert S. Whitehill, a Pittsburgh attorney, to represent her before the INS. In a telephone status conference conducted by Immigration Judge Fujimoto on August 18, 1993, Mr. Whitehill disputed Ms. Green's deportability under the aggravated felony provision (section 241(a)(2)(A)(iii)) but conceded deportability under the possession-of-a-controlled-substance provision (section 241(a)(2)(B)(i)). At the same time, Mr. Whitehill advised Judge Fujimoto and INS District Counsel Richard Sharkey that Ms. Green would seek to avoid deportation by applying for a waiver of inadmissibility pursuant to section 212(c) of the Act.*fn3 The INS, for its part, reasserted the contention that Ms. Green was subject to deportation under the aggravated felony provision as well as the possession-of-a-controlled-substance provision.

At the close of the conference, Judge Fujimoto set deadlines for future proceedings. With respect to the aggravated felony issue, Judge Fujimoto postponed findings pending submission by Mr. Sharkey of documents establishing with precision the state charges pursuant to which Ms. Green was convicted; an October 1, 1993 deadline was set for the filing of these materials. Judge Fujimoto then addressed Mr. Whitehill (A.R. 107-08):


Q. You've already conceded deportability on the one charge, Mr. Whitehill, so as relief you're going to be requesting 212(c) waiver. Correct?

A. Sure are.

Q. All right. October 1st is the call-up date for that as well. And, then we'll hold a hearing, assuming the application has been filed, on November 4th, 1993, 9:00 a.m., in Pittsburgh. And, we'll send you a written notice of that hearing date.


Q. Is that acceptable, then, to both sides?


Q. [sic ] Yes, sir.


A. To the alien, it is acceptable.

Q. All right. Let me again run through it very briefly. I've -- you've conceded deportability on the controlled substance. Prior to rendering a finding on the aggravated felony charge, I'm asking the Service to submit the indictment and the state statute under which the respondent was convicted. Mr. Whitehill, you'll be submitting your 212(c) application on or before October 1st. If you wanted to make an argument with regards to why she is not deportable as an aggravated felon, please also have that argument tendered on or before that date. We'll then go forward with individual calendar hearing November 4th, 9:00 a.m. We'll allocate the entire morning, no interpreter required.

As of October 1, 1993, the date specified by Judge Fujimoto on August 18, Mr. Whitehill had filed neither a § 212(c) "call-up" application nor a motion to extend the time to file. Twenty-seven days later there had still been no filing by Mr. Whitehill. On that day -- October 28, 1993 -- Judge Fujimoto filed the following decision (A.R. 89-90):


The respondent is a female native and citizen of Guyana [*] who was admitted to the United States on August 22, 1969 as a nonimmigrant student. On February 24, 1983, her status was adjusted to that of a lawful permanent resident. Deportation proceedings were commenced against her through the issuance of an Order to Show Cause, charging her with deportability under the above-captioned sections of the Immigration & Nationality Act.

At her hearing, the respondent, through counsel, admitted allegations 1 and 3 through 7 contained in the Order to Show Cause and conceded deportability under Section 241(a)(2)(B)(i), relating to having ...

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