 NEWS FROM THE COURTS
Foroglou v. Reno, First Circuit
In this case, the court denied the motion to reopen.
Emmanuel Foroglou, a citizen of Greece entered the US on a student visa in the early 1980s. He overstayed the visa, and in 1993 the INS began deportation proceedings. Foroglou filed an application for asylum, saying that he would be drafted if returned to Greece, and that he had conscientious objections to military service. The Immigration Judge denied his request for asylum and the denial was upheld by the Board of Immigration Appeals. In 1999 the First Circuit affirmed the denial.
Later that year Foroglou filed a motion to reopen with the Board so that he could pursue a claim under the United Nations Convention Against Torture (CAT). He also filed a petition for a writ of habeas corpus to stay his deportation. Both the motion to reopen and the request for a stay were denied, and Foroglou now appeals both of these ruling to the First Circuit.
The Board denied his motion to reopen because it was not filed in time. The regulations implementing the CAT provide that when deportation orders became final before March 22, 1999, the motion to reopen must be filed by June 21, 1999. Foroglou’s deportation order became final on April 30, 1998, and he did not file the motion to reopen until October 14, 1999. Before the First Circuit Foroglou argued that this time limit should be invalidated because it could result in the deportation of a person who would then face torture, contrary to the goals of the CAT. The court rejected this argument, noting that nothing in the CAT precludes signatory nations from setting reasonable time limits for the filing of claims.
Foroglou also argued that the time limit as applied to him was invalid because the regulation was not properly promulgated. The regulations went into effect one month after they were published, before the end of the period in which the public is encouraged to submit comments. This is allowed when the agency promulgating the regulations shows “good cause” for it. The court declined to address this issue, finding instead that if the regulation had not gone into effect until after the comment period, Foroglou still would have only until July 1999 to file his motion.
Finally, the First Circuit found that because Foroglou had ample opportunities to seek direct review of his deportation order, the court did not have jurisdiction over his habeas corpus petition. It therefore dismissed the case.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0306-Foroglou.pdf
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