46 F.

3d 313

Bibi Fazallah GREEN, Petitioner,

v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 94-3193.

United States Court of Appeals,

Third Circuit.
Argued Oct. 31, 1994.
Decided Jan. 27, 1995.

Robert S. Whitehill (argued), Deasy & Whitehill, Pittsburgh, PA, for

petitioner.
Jane Gomez (argued), David J. Kline, Carl H. McIntyre, Jr., Alice M.
King, U.S. Dept. of Justice, Office of Immigration Litigation, Washington,
DC, for respondent.

Before: GREENBERG and McKEE, Circuit Judges, and POLLAK, District

Judge* .

OPINION OF THE COURT

2

LOUIS H. 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.
4

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

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.3 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):

JUDGE TO MR. WHITEHILL

7 You've already conceded deportability on the one charge, Mr. Whitehill, so as
Q.
relief you're going to be requesting 212(c) waiver. Correct?
8A. Sure are.
9 All right. October 1st is the call-up date for that as well. And, then we'll hold a
Q.
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?
10
JUDGE TO MR. SHARKEY
Q. [sic] Yes, sir.
11
JUDGE TO MR. WHITEHILL
A. To the alien, it is acceptable.
12
13 All right. Let me again run through it very briefly. I've--you've conceded
Q.
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.
14

As of October 1, 1993, the date specified by Judge Fujimoto on August 18, Mr.
Whitehill had filed neither a Sec. 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
15

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.

16

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. [**]

17

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.

18

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).

19

Accordingly, the following orders will be entered:

20
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.
21 IS FURTHER ORDERED that the respondent be deported from the United States
IT
to Guyana under Section 241(a)(2)(B)(i) of the Act.
James R. Fujimoto
Immigration Judge
DATE: October 28, 1993
22

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):

23

8. On August 18, 1993, the Court ordered counsel to file for 212(c) relief on or
before October 1, 1993.

24

9. Solely through inadvertence of counsel, the request for relief was not timely
filed.

25

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).

26

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.

27

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.

28

13. An order of deportation without right of trial creates a human tragedy which
may be able to be avoided.

29

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.

30

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.

31

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):

32 appeal, the respondent contends that the late filing of her application was due to
On
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.
******
33

34 alien seeking reopening of deportation proceedings in order to file an

[A]n
application for relief from deportation must show reasonable cause for her failure to
timely file the application. See 8 C.F.R. Sec. 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).
35

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, 8 F.3d 809 (1st Cir.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.

36

We therefore conclude that because the respondent has failed to show

reasonable cause for failing to timely file the Form I-191 application, the case
will not be remanded to the immigration judge.

37

ORDER: The decision of the immigration judge is affirmed.

II.
38

The petition for review focuses on the Board's reliance on 8 C.F.R. Sec. 3.29
(hereinafter "Sec. 3.29"), an INS procedural regulation which provides as
follows:

39

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

40

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 Sec. 212(c) application on Ms. Green's behalf in conformity
with the timetable announced by the Judge could result in a judicial
determination, pursuant to Sec. 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 Sec. 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
41
42

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.
43
44 All right. October 1st is the call-up date for that as well. And, then we'll hold a
Q.
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?
45
JUDGE TO Mr. SHARKEY
Q. [sic] Yes, sir.
46
JUDGE TO Mr. WHITEHILL
A. To the alien, it is acceptable.
47
48

At whatever time Mr. Whitehill first became acquainted with Sec. 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 Sec. 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."

49

The record before this court is silent on when Mr. Whitehill first learned about

Sec. 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 Sec. 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 Sec. 3.29 until after Judge Fujimoto's decision.
50

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

constitutionally foreclosed from applying Sec. 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 Sec. 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

51

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 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
Sec. 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.

52

It is contended, however, that Sec. 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:

53
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
54

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-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 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.

55

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

56
57

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.

58

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 Sec. 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 Sec. 3.29 and its own settled
jurisprudence, it affirmed Judge Fujimoto's ruling.

III.
59

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:

60Your Honor, she [Ms. Green] does have that right and there are administrative
...
means to address that right....
******
61
62[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.
63

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
64

Finding no error in the decision of the Board of Immigration Appeals, we deny

the petition for review.

The Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

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

Section 241(a)(2)(A)(iii), codified at 8 U.S.C. Sec. 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.
Section 101(a)(43), codified at 8 U.S.C. Sec. 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.
3

Section 212(c), codified at 8 U.S.C. Sec. 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).

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).
4

As of 1993, Sec. 3.29 had been renumbered as Sec. 3.31(c), 8 C.F.R. Sec.
3.31(c). But since the Board, in its opinion, referred to the regulation as Sec.
3.29, we will follow that usage in this opinion

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 910. 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 Sec. 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 Sec.
212(c) application on time was a necessary predicate for a hearing at which Mr.
Whitehill could present the case for avoidance of deportation

Benchbook (pre-1989 version), Sec. III, p 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

The INS argues that we should not consider the Benchbook for two, related,
reasons: first, the Benchbook was not made part of the administrative record,
and, second, the Benchbook was not relied upon by Mr. Whitehill before the
Board

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

8 C.F.R. Sec. 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.