1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-10-1995

Huang v INS

Precedential or Non-Precedential:

Docket 94-3187

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Recommended Citation

"Huang v INS" (1995). 1995 Decisions. Paper 41.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/41
 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 94-3187 

 

 CHUNG CHIU HUANG; CHUANG LI-CHUN HUANG; 

 HUA HUANG and YAO HUANG, 

 Petitioners 

v. 

 IMMIGRATION & NATURALIZATION SERVICE, 

 Respondent 

 

 Petition for Review of an Order of the 

 Board of Immigration Appeals of the 

 Immigration and Naturalization Service 

 INS Nos. A72-188-520, A72-188-521, A72-363-558, A72-363-559 

 

 Argued October 25, 1994 

 BEFORE: STAPLETON, HUTCHINSON and GARTH, Circuit Judges

 (Opinion Filed February 10, 1995) 

 

 

Frank W. Hunger 

Assistant Attorney General 

Civil Division 

David J. Kline 

Richard M. Evans (Argued) 

Carl H. McIntyre, Jr. 

U.S. Department of Justice 

Office of Immigration Litigation 

Ben Franklin Station 

P.O. Box 878 

Washington, D.C. 20044 
Attorneys for Respondent 
Daniel W. Ernsberger (Argued) 

Behrend & Ernsberger 

2400 Grant Building 

Pittsburgh, PA 15129 

Attorneys for Petitioners 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Chung Chiu Huang and his family are citizens of Taiwan. 

They came to the United States as visitors and remained beyond 

the authorized period. An Immigration Judge found them 

deportable. The Huangs' counsel attempted to appeal this 

decision, but the appeals were dismissed by the Board of 

Immigration Appeals as untimely. We will grant the Huangs' 

petitions for review. 

 

I. 

 The Immigration Judge issued a document memorializing 

his decision at the close of the hearing in Pittsburgh, 

Pennsylvania, on May 4, 1993. The document reflected that it was 

being issued by the Executive Office for Immigration Review, 536 

Clark Street, Chicago, Illinois. Huangs' counsel prepared 

notices of appeal and attempted to file them in the local service 

office of the Immigration and Naturalization Service on 

Wednesday, May 12, 1993. The clerk date-stamped the notices of 
appeal, accepted the filing fees, and issued receipts for the 

fees. The clerk declined to retain the notices of appeal, 

however, and instructed counsel to file them in the office of the 

Immigration Judge in Chicago. 

 Counsel mailed the notices, fee receipts, and 

certificates of service on opposing counsel to the office of the 

Immigration Judge by certified mail on May 12, 1993. These 

documents were received in Chicago on Monday, May 17, 1993. 

II. 

 Part 3 of the Justice Department's regulations on 

Aliens and Nationality spells out the jurisdiction of the Board 

of Immigration Appeals and how one appeals to that Board from a 

decision of an Immigration Judge. 8 C.F.R. §§ 3.0-.40 (1993). 

Section 3.1(b) gives the Board appellate jurisdiction over 

various decisions of Immigration Judges, including deportation 

decisions. Section 3.3(a) provides in part: 

 § 3.3 Notice of appeal 

 A party affected by a decision who is 

entitled under this chapter to appeal to the 

Board shall be given notice of his or her 

right to appeal. An appeal shall be taken by 

filing Notice of Appeal Form I-290A in 

triplicate with the Service office or Office 

of the Immigration Judge having 

administrative jurisdiction over the case, 

within the time specified in the governing 

sections of this chapter. . . . 

Section 3.38 then goes on to provide: 
 § 3.38 Appeals. 

 (a) Decisions of Immigration Judges may 

be appealed to the Board of Immigration 

Appeals as authorized by 8 C.F.R. 3.1(b). 

 (b) The notice of appeal of the decision 

shall be filed with the Office of the 

Immigration Judge having administrative 

control over the Record of Proceeding within 

ten (10) calendar days after service of the 

decision. Time will be 13 days if mailed. 

If the final date for filing falls on a 

Saturday, Sunday, or legal holiday, this 

appeal time shall be extended to the next 

business day. 

8 C.F.R. § 3.38(a), (b) (emphasis supplied). 

 Consistent with these regulations, the preprinted form 

given to the Huangs by the Immigration Judge on May 4, 1993, 

contained the following instructions: 

 This decision is final unless an appeal is 

taken to the Board of Immigration Appeals by 

returning to this office on or before 5-14-93

three copies of Form EOIR-26 Notice of 

Appeal, properly executed, together with a 

fee of one hundred ten dollars ($110.00). 

App. 147.1

* * * * 

 Filing. This notice of appeal with a 

Certificate of Service on the opposing party 

must be filed with the Office of Immigration 

Judge having administrative control over the 

Record of Proceeding within 10 calendar days 

(or 13 calendar days if mailed) after service 

of the decision of the Immigration Judge. 

 

1. Mr. Huang's copy of the document had "5-14-93" inserted in 

handwriting. The other petitioners' copies contained a blank 

space where a date could be inserted. 
 The Notice of Appeal is not to be forwarded 

directly to the Board of Immigration Appeals 

(BIA). 

App. 138 (emphasis supplied). 

III. 

 The Board of Immigration Appeals, in both its original 

decision and its decision on reconsideration, acknowledged that 

the notices of appeal were mailed to the Chicago Office of the 

Immigration Judge, that the notices were received by that office 

on May 17, 1993, thirteen days after the decision appealed, and 

that the controlling regulation is 8 C.F.R. § 3.38(b) (1993). It 

nevertheless concluded that the notices were untimely. 

 The decisions of the Board acknowledge no ambiguity in 

§ 3.38(b). They read the sentence we have emphasized in the 

above quotation to mean that the "time will be 13 days" if the 

decision of the Immigration Judge is mailed, not if the notice of 

appeal is mailed. In its brief before us, however, the Service 

acknowledges, as we think in fairness it must, that this portion 

of § 3.38(b) is ambiguous if read alone. 

 We view § 3.38(b) as at least ambiguous. Moreover, we 

believe any reasonable lawyer perceiving an ambiguity in that 

section would regard that ambiguity as being clearly resolved by 

the Service's own preprinted form instructions regarding the time 

for filing. The parenthetical "(or 13 calendar days if mailed)" 

cannot reasonably be read in context as referring to the mailing 

of the decision rather than the mailing of the notice. 
 While we might be willing to give some deference to the 

Board's reading of the Justice Department's regulations were it 

not for the advice on the preprinted form, we cannot condone its 

decision in this case. The agency2 cannot advise participants in 

its process to read an ambiguous rule one way and, after they 

have acted, subject them to a more stringent requirement. Vlaicu 

v. INS, 998 F.2d 758, 760 (9th Cir. 1993) (finding 8 C.F.R. 

§ 3.38(b) and a related notice misleading and holding that where 

"a party is 'misled by the court,' an appellate tribunal [has] 

jurisdiction to hear an otherwise untimely appeal"); Shamsi v. 

INS, 998 F.2d 761 (9th Cir. 1993) (same where regulations and 

notice are misleading as to place for filing notice of appeal 

from a decision of an Immigration Judge). 

 We have rejected the Board's suggestion that 8 C.F.R. 

§ 242.21 somehow renders § 3.38(b) unambiguous. That regulation, 

which is a portion of Part 242 of Title 8, provides in part: 

 (a) Pursuant to part 3 of this chapter 

an appeal shall lie from a decision of a 

special inquiry officer under this part to 

the Board of Immigration Appeals. An appeal 

shall be taken within 10 days after the 

mailing of a written decision, or the stating 

of an oral decision, or the service of a 

summary decision on Form I-38 or Form I-39. 

The reasons for the appeal shall be stated 

briefly in the Notice of Appeal, Form I-290A; 

failure to do so may constitute a ground for 

dismissal of the appeal by the Board. When 

service of the decision is made by mail, as 

authorized by this section, 3 days shall be 

 

2. The Executive Office for Immigration Review is "responsible 

for the general supervision of the Board of Immigration Appeals. 

. . ." 8 C.F.R. § 3.0. 
added to the period prescribed for the taking 

of an appeal. 

8 C.F.R. § 242.21 (emphasis supplied). While we agree with the 

Board that the emphasized sentence extends the period for filing 

a notice of appeal by three days where the Immigration Judge has 

served the decision by mail, we cannot agree that this clears up 

the ambiguity in § 3.38(b). The two sections can be read 

together to provide two distinct extensions and, in the context 

of the instructions on the preprinted form, we believe a 

reasonable practitioner, as well as a reasonable lay person, 

would so read them.3

 The petitions for review will be granted, and the Board 

will be instructed to consider the Huangs' appeals on their 

merits. 

 

3. The Service has also argued before us that the Huangs waived 

the issue we find dispositive by not raising it before the Board. 

Additionally, the Service has contended that the Immigration 

Judge's oral advice to the Huangs concerning the filing of an 

appeal cured any ambiguity. We find neither argument persuasive.