Opinion
Civ. No. 04-1116 (JNE/JSM)
March 11, 2004
Paschal O. Nwokocha, Esq., Paschal Nwokocha Law Offices, LLC, for Plaintiff
David Gerald Wilhelm, Esq., appeared for the Government
ORDER
On March 4, 2004, Luis Bongabong filed a petition for writ of habeas corpus and a complaint for declaratory and injunctive relief against the above-named defendants (collectively, the Government) after his motion for a stay of removal pending consideration of his appeal by the Board of Immigration Appeals (BIA) was denied. This case is before the Court on Bongabong's motion for a temporary restraining order. All parties were present at a hearing on March 10, 2004. Therefore, the Court will consider the motion as one for a preliminary injunction brought pursuant to Rule 65 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants the motion.
I. BACKGROUND
Based on the filings of counsel and arguments to the Court, the Court accepts the following facts as true for the purposes of this motion. Bongabong is a 33 year-old man from the Philippines. He entered the United States on June 6, 1999 as a K-1 non-immigrant fiancée of a United States Citizen. He later married his fiancée, Elsie, and together they have one child, John. Since he entered this country, there have been no allegations that he has been charged with or convicted of any crime. On December 21, 1999, his immigration status was changed to that of a Permanent Resident of the United States.Sometime in the fall of 2002, the Immigration Court sent Bongabong a notice to appear at a Master Calendar hearing for failing to timely file a 1-751 form. After receiving the notice, Bongabong retained counsel, Michael Verbrick. On December 2, 2002, Verbrick filed Bongabong's 1-751 form with the Office of District Counsel of the Immigration and Naturalization Service (INS) and asked that the INS terminate the proceedings against Bongabong because the Notice to Appear had been "improvidently issued." Verbrick then told Bongabong that he did not need to appear at the Master Calendar hearing because Verbrick had filed the 1-751 form.
On May 1, 2003, the Immigration Judge (IJ) issued an in absentia decision, ordering Bongabong removed from the United States after he failed to appear at the previously scheduled Master Calendar hearing. Bongabong received the decision by mail. Attached to that decision was a cover sheet signed by the Clerk of the Immigration Court, which erroneously instructed Bongabong that the decision was final "unless an appeal is filed with the Board of Immigration Appeals within 30 calendar days of the mailing of the decision." (emphasis added). On May 29, pursuant to those instructions, Verbrick filed a Notice of Appeal from a Decision of an Immigration Judge (Form EOIR 26), in which he noted that the reason for the appeal was that the "decision was not supported in law or fact and overriding equities merit reversal." At the same time, Verbrick requested additional time in which to file the required memorandum to explain the specific facts and law in support of Bongabong's appeal.
By an order dated December 9, 2003, the BIA treated the appeal as a timely filed motion to reopen and returned the record to the Immigration Court for consideration and adjudication as a motion to reopen. On December 12, 2003, the IJ issued an order giving Bongabong until January 9, 2004, to supplement the record to support his motion to reopen. Neither Bongabong nor Verbrick submitted any materials to supplement the record. On January 23, 2004, the IJ issued an order denying Bongabong's motion to reopen. In that order, the IJ found that Bongabong had been given proper notice of the May 1, 2003, hearing and that Bongabong had not offered any support to show that exceptional circumstances prevented his appearance at the hearing. Attached to the January 23 order was a cover sheet signed by the Clerk of the Immigration Court that instructed Bongabong that the decision was final and that he must appeal the decision to the BIA within 30 days of the mailing of the decision.
Sometime in January, Bongabong received a letter from Verbrick, which stated that Verbrick had stopped practicing law and that Bongabong needed to retain new counsel. It is unclear from the record when this letter was received.
On February 18, 2004, Bongabong was detained and taken to a facility in Chaska, Minnesota. That same day, he obtained new counsel, who assisted in the filing of a motion to reopen and reconsider the final removal order. In that document, Bongabong asserts that he did not supplement the record by January 9, 2004, because he had ineffective assistance of counsel. The Government opposed Bongabong's motion, citing 8 C.F.R. § 1003.23 (2000), and stating that Bongabong was not allowed to file more than one motion to reopen. Shortly thereafter, Bongabong filed a motion to stay pending consideration by the BIA of his appeal of February 18. On March 1, 2004, the BIA issued an order denying the motion to stay, noting that it had concluded that there is "little likelihood that the appeal will be sustained." Shortly thereafter, Bongabong was flown to California, where he boarded a plane to the Philippines. Due to an error in paperwork, the Philippine Government would not accept him. At the motion hearing on March 10, 2004, the Government's counsel stated that Bongabong was on route back to Minnesota.
II. DISCUSSION
The parties agree that a temporary restraining order/preliminary injunction should not issue unless Bongabong can demonstrate the following: (1) a likelihood of success on the merits; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest. See Sofinet v. INS, 188 F.3d 703, 706 (7th Cir. 1999). For the purposes of this motion, the Government disputes only the first factor-likelihood of success on the merits.
The Government argues that Bongabong cannot prevail on the first element because he did not file his motion to reopen, based on the "exceptional circumstance" of ineffective assistance of counsel, within 180 days after the May 1 decision. See 8 U.S.C. § 1229(b)(5) (2000). Citing Kamara v. INS, 149 F.3d 904 (8th Cir. 1998), the Government argues that the 180-day period is a jurisdictional bar to the filing of a motion to reopen. Because Bongabong did not raise such arguments until February 2004, the Government contends that no agency or court has jurisdiction over which to hear Bongabong's arguments related to the ineffective assistance of counsel.
In essence, the Government's position would require the Court to expand the holding of Kamara to hold that Bongabong is jurisdictionally barred from filing an appeal of the January 23 denial of his motion to reopen. Kamara does not state such a proposition. Instead, it holds that no one can file a motion to reopen on the basis of exceptional circumstances more than 180 days after an order of deportation. Kamara, 149 F.3d at 906. Given the timing and circumstances of the various filings at issue in this case, the Court concludes that Bongabong's February 18 filing is not a motion to reopen. Instead, Bongabong's February 18 filing is an appeal of the IJ's January 23, 2004 denial of his motion to reopen. Bongabong's new counsel filed a motion in haste, shortly after Bongabong was taken into custody. The fact that it is titled both as a motion to reopen and a motion to reconsider is not fatal to his appeal. Indeed, in the BIA's March 1 denial of a stay of removal, the BIA described Bongabong's motion as an "appeal." Because it is an appeal, rather than a motion to reopen, Kamara is inapposite.
In advancing its argument, the Government cites to no authority for the proposition that an appeal may not be taken from a denial of a motion to reopen. Indeed, if this were true, the IJ's denial would be an unreviewable decision. Assuming a denial of a motion to reopen is appealable, the appeal must be made only after the denial occurs. In this case, the denial occurred on January 23, and as stated in the attached cover letter, Bongabong had 30 days from the mailing of the decision in which to appeal. He filed his appeal on February 18, well within the 30-day timeframe. Accordingly, Bongabong filed a timely appeal of the denial of his motion to reopen.
The Government properly points out that at no time prior to February 18, 2004 was the issue "exceptional circumstances" based on ineffective assistance of counsel raised. While it is true that the May 29 filing, which was deemed to be a timely filed motion to reopen, did not state that exceptional circumstances existed, it is also true that the May 29 filing-per the Immigration Court's erroneous instruction-was filed as an appeal, not as a motion to reopen. Thus, it would be illogical for Bongabong to note any "exceptional circumstances" in that filing because none were required for such an appeal. In any event, the Government is correct in noting that the circumstances now argued to be exceptional were never presented to the IJ, who denied Bongabong's motion to reopen. If such arguments had been made, the merits of Bongabong's ineffective assistance of counsel arguments could have been considered, and the propriety of the IJ's decision would have been reviewable on appeal.
As it is, Bongabong presently has an appeal pending before the BIA seeking review of the IJ's January 23 denial of his motion to reopen. In that appeal, he raises for the first time factual issues related to the ineffective assistance of counsel that were not raised below. Neither party addressed the likelihood that the BIA would consider an issue not raised before the IJ. The Court notes that as a practical matter, it would have been impossible for Bongabong to have raised an ineffective assistance of counsel argument before he knew his counsel was ineffective. Indeed, he did not know until January 2004 that Verbrick was no longer practicing law. Thus, he presumably did not have sufficient time to raise those issues prior to the January 9 supplemental deadline. The Court is unable to assess the likelihood that the BIA will consider on appeal an issue not raised below. However, although extremely rare, appellate courts can and do consider new material raised on appeal. See e.g., Von Kerssenbrock Praschma v. Saunders, 121 F.3d 373, 376-77 (8th Cir. 1997) (discussing instances of exceptional circumstances, such as to avoid a miscarriage of justice, where an appellate court can consider new matters raised for on appeal).
In the absence of more on-point authority relating to the ability or inability to raise the issue of ineffective assistance of counsel on appeal, the Court concludes that Bongabong has shown that he will have "some" likelihood of success in his appeal to the BIA. As the Seventh Circuit has observed in Sqftnet, in deportation cases, a plaintiff need only show "some" or a "better than negligible" chance of likelihood of success on the merits. Sofinet, 188 F.3d at 707-08. This lesser standard is because, if a stay is not granted in deportation cases, an alien is essentially denied judicial review of a decision of deportation because any appeal is moot once the alien leaves the United States. See 8 U.S.C. § 1105a(c) (explaining that "an order of deportation . . . shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order."); 8 C.F.R. § 3.4 (providing that an alien's departure from the United States operates to withdraw the appeal of the deportation order). The instant case is a good example of why such a standard should be applied. If this stay is not granted, Bongabong will be deported shortly and will not be able to enter the United States again for ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii) (2000). Moreover, he will be deprived of judicial review of the IJ's January 23 denial because his appeal will be moot. Given that Bongabong is custody awaiting transportation to the Philippines, the Court concludes that the interests of justice can only be served by granting a stay in this matter pending the BIA's decision regarding Bongabong's appeal of the IJ's January 23 denial of his motion to reopen. Accordingly, the Court grants Bongabong's motion for a temporary restraining order/preliminary injunction.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Bongabong's Motion for a Temporary Restraining Order/Preliminary Injunction [Docket No. 1] is GRANTED.
2. The INS is ENJOINED from executing the final order of deportation against Luis Bongabong pending the BIA's decision regarding Bongabong's appeal of the IJ's January 23 denial of his motion to reopen.
3. Until further Order by this Court, Luis Bongabong shall not be removed from the United States, or the District of Minnesota, at any time.