KPMG Peat Marwick of Puerto Rico v. United States Immigration and Naturalization Service, 943 F.2d 91, 1st Cir. (1991)

943 F.
2d 91
KPMG PEAT MARWICK OF PUERTO RICO, Petitioner,

v.
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 91-1424.
United States Court of Appeals,

First Circuit.
Submitted July 8, 1991.
Decided Aug. 5, 1991.
Michael D. Patrick, and Fragomen, Del Rey & Bernsen, P.C., New York
City, on brief, for petitioner.
Stuart M. Gerson, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director,
and Karen Fletcher Torstenson, Atty., Office of Immigration Litigation
Civ. Div., Washington, D.C., on Motion for Summary Disposition, for
respondent.
Before CAMPBELL, SELYA and CYR, Circuit Judges.
PER CURIAM.
Respondent, the Immigration and Naturalization Service (the "INS"), moves

this court, pursuant to 1st Cir.Loc. R. 27.1, to dismiss this case for lack of
jurisdiction. Petitioner, KPMG Peat Marwick of Puerto Rico, asks us to remand
this case to an administrative law judge for a hearing on the merits. We agree
with the INS, and this petition is hereby dismissed for lack of jurisdiction. We
explain.
The facts in this case are simple and uncontested. On February 12, 1991,
petitioner was served, in person, with a Notice of Intent to Fine by the INS for
unlawfully employing aliens in violation of 8 U.S.C. 1324a. The relevant
portion of the notice of intent stated as follows:
I. You have the right to contest this Notice. If you desire to contest this Notice
I. You have the right to contest this Notice. If you desire to contest this Notice
you must:
4 Within 30 days from the service of this Notice, submit a written request for a
1.
hearing before an administrative law judge. The hearing will be conducted pursuant
to Title 5, United States Code, Sections 554-557.
5 Submit the written request for a hearing either in person or by certified mail to the
2.
following address:
U.S. Department of Justice
Immigration and Naturalization Service
G.P.O. Box 5068
San Juan, Puerto Rico 00936
SRA Vivian Reyes, District Counsel, INS/SAJ
6
II. You may submit to the Service, either in person or by certified mail, at the
address above, a written answer responding to each allegation listed in this
Notice.
III. If a written request for a hearing is not timely received, the Service will
issue within 45 days a final and unappealable order directing you to pay a fine
in the amount specified in this Notice. If the charge specifies violation(s) of
subsection 274A(a)(1)(A) or subsection 274A(a)(2) of the Immigration and
Nationality Act, the order will also require that you cease and desist from such
violation(s).
(Emphasis added).
On March 14, 1991, the last day that a request for a hearing could be timely
filed, counsel went to the post office and mailed, via certified mail with return
receipt requested, a request for a hearing. That request was received by the INS
on March 15, 1991, one day out of time. Accordingly, on March 18, 1991, the
INS issued its final order directing petitioner to pay a fine of $12,250.00.
Petitioner filed a petition for review. 1
10
The INS argues that this court lacks jurisdiction to entertain this petition. In
support, the INS points to 8 U.S.C. 1324a(e)(3)(A)-(B), which provide, in

part, as follows:
(A) In general
11
12
Before imposing an order ... the Attorney General shall provide the person or
entity with notice and, upon request made within a reasonable time (of not less
than 30 days, as established by the Attorney General) of the date of the notice,
a hearing respecting the violation.
(B) Conduct of hearing

13
14
Any hearing so requested shall be conducted before an administrative law

judge.... If no hearing is so requested, the Attorney General's imposition of the
order shall constitute a final and unappealable order.
15
(Emphasis added). The INS also points to its regulations, found at 8 C.F.R.
274a.9 which state as follows:
16
(d) Request for Hearing before an Administrative Law Judge. If a respondent

contests the issuance of a Notice of Intent to Fine, the respondent must file with
the INS, within thirty days of the service of the Notice of Intent to Fine, a
written request for a hearing before an Administrative Law Judge.... A request
for a hearing is not deemed filed until received by the Service office designated
in the Notice of Intent to Fine....
17
(e) Failure to file a request for hearing. If the respondent does not file a request
for a hearing in writing within thirty days of the day of service of the Notice of
Intent to Fine ..., the INS shall issue a final order from which there is no appeal.
18
The INS argues that the Notice of Intent to Fine, the statute and the regulations
all unambiguously state that petitioner's request for a hearing had to be received
by the INS within the thirty-day period, and that when the INS does not receive
a request for a hearing within the thirty-day period, no judicial review lies from
its final order.
19
Petitioner argues that the Notice of Intent to Fine stated that the request for the
hearing had to be submitted within thirty days of service and the request could
be submitted either in person or by certified mail. Therefore, so long as the
request for the hearing was sent by certified mail within that period, it should
be deemed timely submitted. In support of this contention, petitioner cites 8
C.F.R. 103.2(a), which states in relevant part that:

20
(a) General. Every application, petition, or other document submitted on a form

prescribed by this chapter shall be executed and filed in accordance with the
instructions contained on the form, such instructions being hereby incorporated
into the particular section of the regulations requiring its submission....
21
Petitioner argues that this was satisfied when the notice was mailed within the
thirty-day period since the instructions on the Notice of Intent to Fine did not
state that physical receipt by the INS was required. Since it is the directions on
the form which determine the proper way to respond, mailing within the
specified period should have been deemed sufficient.
22
Alternatively, petitioner seems to argue that the INS's regulations must be

invalid since the only INS address to which requests for hearings could be filed
is, in fact, a post office box. Petitioner argues that under these circumstances,
the INS really received its request for the hearing when that request was
delivered to the post office. Elsewise, petitioner argues, those seeking hearings
concerning the fines which the INS imposes have no way of assuring that their
requests will be timely received. Hypothetically, petitioner continues, the INS
could simply decide not to pick up its mail from the post office box for weeks
at a time, causing otherwise timely requests to be "received" out of time. Hence,
petitioner argues, it is only fair that its request for a hearing be deemed timely
since it was delivered to the post office within the thirty-day period. In any
event, petitioner argues that at least in this case, it is more likely than not that
the request for the hearing had been placed in the INS's post office box on
March 14, and therefore had been technically "received" by the INS, even if it
had not been physically retrieved by INS personnel until March 15.
Consequently, petitioner argues, we should deem it timely.
23
Finally, petitioner seems to argue that we have authority to remand this matter
for an administrative hearing even if we find that the request for a hearing was
not timely because it is against public policy for the INS not to convene a
hearing merely because the request for the hearing arrived one day late. In
support of this proposition, petitioner points to 5 U.S.C. 706 which gives this
court authority to review agency decisions.
24
We are unconvinced. First, Section III of the Notice of Intent to Fine stated that
the final order would issue if the written request for the hearing were not timely
received. We think the Notice of Intent to Fine is, at worst, mildly ambiguous,
and any confusion could easily have been remedied if petitioner's lawyers had
checked the statute or the regulations quoted above. Those regulations make it
clear that such requests for hearings must be received by the INS within thirty
days.
25
As to petitioner's argument that the use of a post office box invites abuse, we
simply note that that is not this case. We refuse to speculate on the
jurisdictional consequences should the INS cease retrieving its mail from its
post office box. In this case there is no evidence that the INS was deviously
seeking to avoid receiving requests for hearings, or even that the mail was not
retrieved on a daily basis. Petitioner's mistake was in waiting until the thirtieth
day to mail a request for a hearing, when it was clear from the Notice of Intent
to Fine, the statute, and the regulations, read in conjunction, that such request
had to be received by the INS on or before that very day. See Rys v. United
States Postal Service, 886 F.2d 443, 447 (1st Cir.1989) (had plaintiff not waited
until the final day of thirty-day period to serve individual defendants, he might
have been entitled to exception to strict construction of regulations). Finally,
without deciding if we actually have the authority to do so under the provisions
cited by petitioner, we note that we see no reason to remand this case for
further hearings. The facts are uncontested--petitioner's request was out of time.
8 U.S.C. 1324a(e)(3) states that when a hearing has not been requested in
accordance with the regulations "the Attorney General's imposition of the order
shall constitute a final and unappealable order."
Conclusion
26
Finding that the hearing was not timely requested, we must also conclude that
the subsequent order was final and unappealable. We therefore conclude that
we lack jurisdiction to entertain this petition. The petition for review is
dismissed.
8 U.S.C. 1324a(e)(8) provides as follows:

A person or entity adversely affected by a final order respecting an assessment
may, within 45 days after the date the final order is issued, file a petition in the
Court of Appeals for the appropriate circuit for review of the order.

KPMG Peat Marwick of Puerto Rico v. United States Immigration and Naturalization Service, 943 F.2d 91, 1st Cir. (1991)

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943 F.

KPMG PEAT MARWICK OF PUERTO RICO, Petitioner,

United States Court of Appeals,

Respondent, the Immigration and Naturalization Service (the "INS"), moves

support, the INS points to 8 U.S.C. 1324a(e)(3)(A)-(B), which provide, in

(B) Conduct of hearing

Any hearing so requested shall be conducted before an administrative law

(d) Request for Hearing before an Administrative Law Judge. If a respondent

C.F.R. 103.2(a), which states in relevant part that:

(a) General. Every application, petition, or other document submitted on a form

Alternatively, petitioner seems to argue that the INS's regulations must be

8 U.S.C. 1324a(e)(8) provides as follows:

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