1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-27-1995

Green v INS

Precedential or Non-Precedential:

Docket 94-3193

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Recommended Citation

"Green v INS" (1995). 1995 Decisions. Paper 25.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _______________ 

 NO. 94-3193 

 _______________ 

 BIBI FAZALLAH GREEN 

 Petitioner 

v. 

 IMMIGRATION AND NATURALIZATION SERVICE 

 Respondent 

 _______________ 

 PETITION FOR REVIEW OF A DECISION OF 

 THE BOARD OF IMMIGRATION APPEALS 

 (No. A23 346 457) 

 _______________ 

 Argued October 31, 1994 

 BEFORE: GREENBERG and McKEE, Circuit Judges, and 

 POLLAK, District Judge*

 (Filed: January 27, 1995) 

 Robert S. Whitehill (argued) 

 Deasy & Whitehill 

 1906 Law & Finance Building 

 Pittsburgh, PA 15219 

 Attorney for Petitioner 

 Jane Gomez (argued) 

 David J. Kline 

 Carl H. McIntyre, Jr. 

 Alice M. King 

 United States Department of 

 

 Justice 

 Office of Immigration Litigation 

 Post Office Box 878 

 

*. The Honorable Louis H. Pollak, United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation. 
 Washington, DC 20044 

 Attorneys for Respondent 

 ______________ 

 OPINION OF THE COURT 

 _____________ 

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. 

I. 

 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," "[a]ny 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."1 And section 

241(a)(2)(A)(iii) of the Act provides that, "upon the order of 

the Attorney General," "[a]ny alien who is convicted of an 

aggravated felony at any time after entry is deportable."2

 

1. Section 241(a)(2)(B)(i), codified at 8 U.S.C. 

§ 1251(a)(2)(B)(i), provides in full as follows: 

 (a) Classes of deportable aliens 

 Any alien (including an alien crewman) in the United 

States shall, upon the order of the Attorney General, be 

deported if the alien is within one or more of the 

following classes of deportable aliens: 

 * * * * * * 

 (2) Criminal offenses 

 * * * * * * 

 (B) Controlled substances

 (i) Conviction 

 

 Any alien who at any time after entry has 

been convicted of a violation of (or a 

conspiracy or attempt to violate) any law or 

regulation of a State, the United States, or 

a foreign country relating to a controlled 

substance (as defined in section 802 of Title 

21), other than a single offense involving 

possession for one's own use of 30 grams or 

less of marijuana, is deportable. 

2. Section 241(a)(2)(A)(iii), codified at 8 U.S.C. 

§ 1251(a)(2)(A)(iii), includes among the category of "criminal 

offenses" rendering an alien deportable: 

 Aggravated felony

 Any alien who is convicted of an 

aggravated felony at any time after 

entry is deportable. 
 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-controlledsubstance 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 

(..continued) 

 Section 101(a)(43), codified at 8 U.S.C. § 1101(a)(43), 

provides: 

 The term, "aggravated felony" means murder, 

any illicit trafficking in any controlled 

substance (as defined in section 802 of Title 

21), including any drug trafficking crime as 

defined in section 924(c)(2) of Title 18, or 

any illicit trafficking in any firearms or 

destructive devices as defined in section 921 

of such title, any offense described in 

section 1956 of Title 18 (relating to 

laundering of monetary instruments), or any 

crime of violence (as defined in section 16 

of Title 18, not including a purely political 

offense) for which the term of imprisonment 

imposed (regardless of any suspension of such 

imprisonment) is at least 5 years, or any 

attempt or conspiracy to commit any such act. 

Such term applies to offenses described in 

the previous sentence whether in violation of 

Federal or State law and also applies to 

offenses described in the previous sentence 

in violation of foreign law for which the 

term of imprisonment was completed within the 

previous 15 years. 
212(c) of the Act.3 The INS, for its part, reasserted the 

contention that Ms. Green was subject to deportation under the 

 

3. Section 212(c), codified at 8 U.S.C. § 1182(c), provides: 

 Aliens lawfully admitted for permanent 

residence who temporarily proceeded abroad 

voluntarily and not under an order of 

deportation, and who are returning to a 

lawful unrelinquished domicile of seven 

consecutive years, may be admitted in the 

discretion of the Attorney General without 

regard to the provisions of subsection (a) 

(other than paragraphs (d) and (9)(C)). 

Nothing contained in this subsection shall 

limit the authority of the Attorney General 

to exercise the discretion vested in him 

under section 211(b). The first sentence of 

this subsection shall not apply to an alien 

who has been convicted of one or more 

aggravated felonies and has served for such 

felony or felonies a term of imprisonment of 

at least 5 years. 

 In Lozada v. I.N.S., 857 F.2d 10 (1st Cir. 1988), the 

petitioner was, like Ms. Green, a permanent resident alien whom 

the INS viewed as deportable and who hoped to avoid deportation 

via a section 212(c) application. The First Circuit explained, 

in a footnote, id. at 11 n.1, the pertinence of what would appear 

to be quite inapposite statutory language: 

 Petitioner would seem ineligible for relief 

under the language of section 212(c), which 

applies on its face only to resident aliens 

who have travelled abroad temporarily and are 

excludable upon return to the United States. 

However, in Francis v. INS, 532 F.2d 268 (2d 

Cir. 1976), the court ruled that Congress 

could not constitutionally confine this 

possible relief to aliens who leave the 

country. After Francis, the Board of 

Immigration Appeals held that section 212(c) 

relief also is available in deportation 

proceedings. Matter of Silva, 16 I & N Dec. 

26, 30 (BIA 1976). 
aggravated felony provision as well as the possession-of-acontrolled-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): 

 JUDGE TO MR. WHITEHILL 

 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. 

 JUDGE TO BOTH COUNSEL 

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

 JUDGE TO MR. SHARKEY 

 Q. [sic] Yes, sir. 

 JUDGE TO MR. WHITEHILL 

 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): 

 DECISION OF THE IMMIGRATION JUDGE

 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 abovecaptioned 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 been 
convicted of a controlled substance 

violation. [**] 

 The respondent requested leave to file an 

application for a waiver of inadmissibility 

under Section 212(c) of the Act and was given 

a call-up date of October 1, 1993, for the 

filing of the application. 

 To date, no application has been filed, nor 

has any request for an extension of time been 

received. It is well settled that 

applications for benefits under the 

Immigration & Nationality Act may be properly 

denied as abandoned where the alien fails to 

timely file them. See Matter of Jean, 17 I & 

N Dec. 100 (BIA 1979); Matter of Jaliawala, 

14 I & N Dec. 664 (BIA 1974); Matter of 

Pearson, 13 I & N Dec. 152 (BIA 1969); Matter 

of Nafi, 19 I & N Dec. 430 (BIA 1987). 

 Accordingly, the following orders will be 

entered: 

 ORDER: The respondent's request to apply for 

a waiver of inadmissibility under Section 

212(c) of the Act is DENIED for lack of 

prosecution. 

 IT IS FURTHER ORDERED that the respondent be 

deported from the United States to Guyana 

under Section 241(a)(2)(B)(i) of the Act. 

 DATE: October 28, 1993 James R. Fujimoto 

 Immigration Judge 

 

 _______________ 

 [*] The respondent asserted that she is a native and 

citizen of "British Guiana (British Guyana)". I take 

note of the fact that "Guyana" and "British Guiana 

(British Guyana)" refer to the same country [see

Webster's II New Riverside Dictionary] and therefore 

find that allegation 2 has been sustained. 

 

 [**] In view of respondent's concession of 

deportability under Section 241(a)(2)(B)(i) and 
pretermission of her application, I do not reach the 

issue of her deportability under Section 

241(a)(2)(A)(iii). 

 The next day -- October 29, 1993 -- Mr. Whitehill sent 

Judge Fujimoto a motion to reopen. The motion stated, in 

pertinent part (A.R. 53-54): 

 8. On August 18, 1993, the Court 

ordered counsel to file for 212(c) relief on 

or before October 1, 1993. 

 9. Solely through inadvertence of 

counsel, the request for relief was not 

timely filed. 

 10. On October 28, 1993, at 

approximately 10:00 a.m. the Office of the 

Court advised undersigned counsel 

telephonically that an Order was being issued 

by the Court, Fujimoto, J., to deport the 

alien, without a hearing, preserving rights 

of appeal, for failure to prosecute the 

relief sought under 212(c). 

 11. Counsel has prepared this motion and 

the attached I-191 which was not able to be 

receipted on October 28, 1993, but will be 

filed October 29, 1993. The fee receipt will 

be forwarded to the Court. 

 12. It is respectfully submitted that the 

Court's order, if properly understood by 

undersigned counsel, denies the alien's right 

to due process of law. 

 13. An order of deportation without right 

of trial creates a human tragedy which may be 

able to be avoided. 

 14. By virtue of the Court's order and 

without a hearing to assert her grounds for 

relief, the alien, her children and her 

husband, all U.S. citizens, may be forced to 

suffer the consequences of the alien's 
deportation based solely on counsel's failure 

to timely file the formal pleading, an I-191. 

 The motion to reopen was not formally acted on. On 

November 4, 1993, Mr. Whitehill sent Judge Fujimoto a notice of 

appeal to the Board with a copy to INS District Counsel Sharkey. 

 On March 24, 1994, the Board issued an opinion 

affirming Judge Fujimoto's decision. The central holding of the 

Board was as follows (A.R. 3-4): 

 On appeal, the respondent contends that the 

late filing of her application was due to the 

inadvertence of her counsel. She asserts 

that the immigration judge's deportation 

order is an error of law in that it deprived 

her of her due process rights to have her 

application for relief considered and an 

abuse of discretion since the late filing is 

excusable. 

 * * * * * * 

 [A]n alien seeking reopening of deportation 

proceedings in order to file an application 

for relief from deportation must show 

reasonable cause for her failure to timely 

file the application. See 8 C.F.R. § 3.29 

(if an application is not filed within the 

time set by the immigration judge, the 

opportunity to file that application shall be 

deemed waived); Matter of R-R-, Interim 

Decision 3182 (BIA 1992). 

 The respondent has not shown reasonable 

cause for failing to timely file an 

application. See Matter of R-R-, supra. 

Generally, litigants are bound by the conduct 

of their representatives. See Garcia v. INS, 

___ F.3d ___ (No. 91-2113) (1st Cir. October 

22, 1993); Magallanes-Damian v. INS, 783 F.2d 

931 (9th Cir. 1986); Matter of Velasquez, 19 

I&N Dec. 377 (BIA 1986). Deadlines set for 

the filing of applications for relief often 

are breached by attorneys and would be 
meaningless if counsel's mistakes in this 

regard were excused every time such action 

allegedly prejudiced a client. Garcia v. 

INS, supra. 

 We therefore conclude that because the 

respondent has failed to show reasonable 

cause for failing to timely file the Form I191 application, the case will not be 

remanded to the immigration judge. 

 ORDER: The decision of the immigration 

judge is affirmed. 

II. 

 The petition for review focuses on the Board's reliance 

on 8 C.F.R. § 3.29 (hereinafter "§ 3.29"), an INS procedural 

regulation which provides as follows: 

 The Immigration Judge may set and extend 

time limits for the filing of applications 

and related documents and responses thereto, 

if any. If an application or document is not 

filed within the time set by the Immigration 

Judge, the opportunity to file that 

application or document shall be deemed 

waived.4

 The petition for review does not quarrel with the 

propriety of vesting in immigration judges, by administrative 

regulation, the authority to "set . . . time limits for the 

filing of applications." Rather, the petition for review takes 

exception to the fact that Judge Fujimoto did not expressly 

advise Mr. Whitehill that failure to file a § 212(c) application 

 

4. As of 1993, § 3.29 had been renumbered as § 3.31(c), 8 C.F.R. 

§ 3.31(c). But since the Board, in its opinion, referred to the 

regulation as § 3.29, we will follow that usage in this opinion. 
on Ms. Green's behalf in conformity with the timetable announced 

by the Judge could result in a judicial determination, pursuant 

to § 3.29, that "the opportunity to file that application . . . 

shall be deemed waived." Mr. Whitehill's brief on behalf of 

petitioner Green argues that Judge Fujimoto was obligated to 

"make clear the possible draconian consequences of failure to 

timely file." Brief of Appellant [sic] at 13. Because Judge 

Fujimoto gave no warning of the "possible draconian 

consequences," it is contended that Judge Fujimoto's ruling -- 

that Ms. Green's expected § 212(c) application had been abandoned 

and that, in consequence, Ms. Green was to be deported -- 

constituted a denial of due process, or, in the alternative, an 

abuse of discretion. We now address these contentions. 

(A) Due Process

 In part I of this opinion, which presents the 

procedural history of this case, we have set forth the closing 

portion of Judge Fujimoto's August 18, 1993, telephone conference 

with Messrs. Sharkey and Whitehill. For the purposes of this 

case, the crucial colloquy was the following: 

 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. 
 JUDGE TO BOTH COUNSEL 

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

 JUDGE TO MR. SHARKEY 

 Q. [sic] Yes, sir. 

 JUDGE TO MR. WHITEHILL 

 A. To the alien, it is acceptable. 

 At whatever time Mr. Whitehill first became acquainted 

with § 3.29, the INS regulation whose application he now 

challenges, he would have learned not only that Judge Fujimoto 

had formal authority to set an October 1, 1993, filing date for 

the § 212(c) application but also that failure to file on time 

would carry with it the probable consequence that "the 

opportunity to file that application . . . shall be deemed 

waived." 

 The record before this court is silent on when Mr. 

Whitehill first learned about § 3.29 -- on or prior to August 18, 

1993, when Judge Fujimoto set the schedule; or, perhaps, not 

before October 1, 1993, the date the § 212(c) application was to 

be filed; or, quite possibly, not before October 28, 1993, the 

day Judge Fujimoto filed his opinion; or, equally possibly, not 

before March 24, 1994, when the Board, in affirming Judge 

Fujimoto's decision, filed an opinion expressly relying on the 

challenged regulation. We will assume, arguendo, that Mr. 

Whitehill was unaware of § 3.29 until after Judge Fujimoto's 

decision. 
 The burden of Mr. Whitehill's argument is that Judge 

Fujimoto was constitutionally foreclosed from applying § 3.29's 

waiver principle because he had not given Mr. Whitehill express 

warning that a failure to file on time could be the catalyst for 

a finding that the proposed § 212(c) application -- which on this 

record appears to have been the only potential mode of relief 

from deportation for a client whose deportability Mr. Whitehill 

had conceded on the record -- had been abandoned.5

 We know of no authority for the notion that, as a 

general matter, the due process clause imposes on courts an 

obligation to advise lawyers personally of the potential adverse 

consequences of not complying with procedural rules. To the 

contrary, we think that, as a general proposition, the American 

legal system presumes that lawyers who handle litigation have the 

responsibility of familiarizing themselves with procedural rules 

and the ways in which those rules are applied. And we see no 

 

5. The INS contends, inter alia, that in fact Judge Fujimoto 

"did explicitly put petitioner and her counsel on notice that the 

filing of her application for relief was a prerequisite to a 

further hearing in her case." Brief for Respondent at 9-10. 

Presumably the INS has in mind Judge Fujimoto's recital at the 

August 18, 1993, telephone status conference that "October 1st is 

the call-up date for that [the § 212(c) application] 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." A.R. 

107. The contention is not without some weight. However, given 

our disposition of the case, we find it unnecessary to determine 

whether the Judge's recital adequately conveyed the thought that 

the filing of a § 212(c) application on time was a necessary 

predicate for a hearing at which Mr. Whitehill could present the 

case for avoidance of deportation. 
reason to suppose that this general proposition is without 

application to the particular sorts of procedural rules -- those 

that govern the timing of various phases of litigation -- at 

issue in this case. We note that some of the rules that govern 

timing incorporate recitals, akin to that in § 3.29, as to the 

consequences of non-compliance, but that others do not. An 

example of the former sort of rule is Rule 13 of the Rules of the 

Supreme Court: Rule 13 provides that a petition for certiorari 

to review a judgment of a court of appeals, or of "a state court 

of last resort," or of the Court of Military Appeals, must be 

filed within ninety days of the entry of the judgment, and that 

one of the Justices may extend the time for no more than sixty 

days; and the rule further provides: "The Clerk will refuse to 

receive any petition for a writ of certiorari which is 

jurisdictionally out of time." An example of the latter sort of 

rule is Rule 13(a) of the Federal Rules of Appellate Procedure: 

Rule 13(a), which governs appeals from the Tax Court, provides 

that "[r]eview . . . shall be obtained by filing a notice of 

appeal with the clerk of the Tax Court within 90 days after the 

decision of the Tax Court is entered," but the rule is silent as 

to the consequences of failing to file on time. No case that has 

come to our attention gives ground for the inference that either 

of the quoted rules is, from the perspective of the Fifth 

Amendment, unenforceable in the absence of an express admonition 
by a clerk of court, or by a judge or by one of the Justices, 

that the rule means what it says. 

 It is contended, however, that § 3.29 is a special 

case. Mr. Whitehill's brief points to a paragraph in a manual of 

guidance for immigration judges referred to as the "Immigration 

Judge's Benchbook" (Benchbook) -- a paragraph pursuant to which, 

so it is urged, Judge Fujimoto should have given Mr. Whitehill an 

express "admonishment" with respect to the consequences of a 

failure to conform to the filing date the Judge had announced. 

The paragraph in question is as follows: 

 Impress the importance of filing briefs and 

relief applications on a timely basis. Those 

who fail to do so can be quickly cured of the 

practice if you summon them to court for an 

interim hearing, take pleadings and set up a 

filing schedule with an admonishment. Such 

admonishment should state that if the 

application is not timely filed, you presume 

that it will not be forthcoming and you will 

enter a written decision cancelling the IC 

trial date and ordering deportation or 

voluntary departure, as appropriate.6

 

 The INS contends that, since the Benchbook's first 

appearance in this case was in Mr. Whitehill's brief in this 

court, the Benchbook is not properly before us.7 The INS also 

contends that -- assuming the Benchbook can be considered by us 

 

6. Benchbook (pre-1989 version), § III, ¶ B.2.f.(8). Attachment 

B at III-17, to letter of Oct. 25, 1994, from Jane Gomez, Esq., 

Attorney, Office of Immigration Litigation, Civil Division, 

Department of Justice, to Ms. Pamela Lester, Deputy Clerk of this 

court. 

7. The INS argues that we should not consider the Benchbook for 

two, related, reasons: first, the Benchbook was not made part of 
-- Mr. Whitehill's reliance on the "admonishment" language is 

misplaced, for the reason that, although the language appeared in 

an early version of the Benchbook, it had been dropped from the 

version of the Benchbook which would have been consulted by 

immigration judges during the summer and fall of 1993 when Ms. 

Green's case was before Judge Fujimoto.8 We find it unnecessary 

to determine whether the Benchbook, in any of its versions, can 

properly be relied on here, because, even if the "admonishment" 

language was included in a version of the Benchbook which Judge 

Fujimoto might have had occasion to refer to in 1993, Mr. 

Whitehill's reliance on that language is unavailing. The preface 

to the Benchbook -- a preface bearing the signature of Chief 

Immigration Judge William R. Robie -- recites that "[t]he 

procedures outlined herein (that are not contained within 

specific Operating Policies and Procedures memoranda) are not 

binding on the Immigration Judges, and are set forth solely as 

(..continued) 

the administrative record, and, second, the Benchbook was not 

relied upon by Mr. Whitehill before the Board. 

8. After Mr. Whitehill cited the Benchbook paragraph in his 

brief in this court, we requested counsel to submit pertinent 

portions of the Benchbook. The INS submission shows the quoted 

paragraph to have been paragraph B.2.f. of a version of section 

III of the "Benchbook" that antedated 1989; the counterpart 

paragraph in the revised section III -- paragraph C.2.b.(6)(g) -- 

does not include the "admonishment" language. The INS represents 

that the revised version was the one which was current in the 

summer and fall of 1993. There was no further submission from 

Mr. Whitehill. 
practical suggestions for their consideration."9 Thus, even if 

the "admonishment" paragraph was part of the Benchbook guidance 

that Judge Fujimoto might have consulted in 1993, that guidance 

was not binding on Judge Fujimoto. In short, the Benchbook had 

no regulatory weight. A fortiori it had no constitutional 

weight. 

 In sum, we find that the arguments advanced by Mr. 

Whitehill fail to demonstrate that Ms. Green has been denied due 

process of law. 

(B) Abuse of Discretion

 For the reasons stated we have rejected the contention 

that the action of the Board, affirming the decision of Judge 

Fujimoto, constituted a denial to Ms. Green of due process of 

law. It is contended, in the alternative, that the action of the 

Board constituted an abuse of discretion. 

 

9. 8 C.F.R. § 3.9 sets forth the principal duties of the Chief 

Immigration Judge: 

 The Chief Immigration Judge shall be 

responsible for the general supervision, 

direction and scheduling of the Immigration 

Judges in the conduct of the various programs 

assigned to them. This shall include: 

 (a) Establishment of operational 

policies; 

 (b) Evaluation of the performance of 

Immigration Judge offices, making appropriate 

reports and inspections and taking corrective 

action where indicated. 
 The abuse-of-discretion claim covers the same ground as 

the due process claim, and we find it no more persuasive. Judge 

Fujimoto did not act unreasonably in ruling, on October 28, 1993, 

that Mr. Whitehill's failure (a) to file a § 212(c) application 

due twenty-seven days before, or (b) to request an extension of 

time to file, worked an abandonment of the application. Nor did 

the Board act unreasonably when, in reliance on § 3.29 and its 

own settled jurisprudence, it affirmed Judge Fujimoto's ruling. 

III. 

 In his submissions to the Board, and subsequently to 

this court, Mr. Whitehill has not contended that his 

representation of Ms. Green before Judge Fujimoto was so 

inadequate as to constitute ineffective assistance of counsel. 

Cf. Lozada v. I.N.S., 857 F.2d 10, 13-14 (1st Cir. 1988). Thus, 

that potential due process claim was not before the Board and is 

not before us. It appears, however, that it is still open to Ms. 

Green to raise such a claim before the Board. On oral argument 

here, in response to questions from the court, counsel for the 

INS said the following: 

 . . . Your Honor, she [Ms. Green] does have 

that right and there are administrative means 

to address that right. . . . 

 * * * * * * 

 . . . [W]hat the petitioner would need to do 

is file a motion to reopen with the Board 

asserting ineffective assistance. She would 

also need to write down the agreement that 

was made with counsel and if any legal action 
had been taken such as reporting to a bar 

association. 

If, after the issuance of our mandate denying the petition for 

review, Ms. Green does file with the Board a motion to reopen on 

ineffective-assistance-of-counsel grounds, and if that motion is 

denied, we may then be called upon, on a subsequent petition for 

review, to determine whether the shortcomings of Ms. Green's 

counsel in handling the proceedings before Judge Fujimoto 

constituted a deprivation of due process. 

 Conclusion

 Finding no error in the decision of the Board of 

Immigration Appeals, we deny the petition for review.