United States Court of Appeals
For the First Circuit
No. 03-1934
SAID GUIRGUIS KHALIL,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Christopher W. Drinan for petitioner.
Daniel Meron, Civil Division, with whom Peter D. Keisler,
Assistant Attorney General, Civil Division, and David V. Bernal and
M. Jocelyn Lopez Wright, Assistant Directors, Office of Immigration
Litigation, were on brief, for respondent.
June 3, 2004
LYNCH, Circuit Judge. On July 24, 2003, this court
affirmed a September 2002 decision by the Board of Immigration
Appeals (BIA) denying asylum and withholding of deportation to Said
Guirguis Khalil. Khalil v. Ashcroft, 337 F.3d 50, 54, 56 (1st Cir.
2003). The BIA had granted Khalil a thirty-day period of voluntary
departure, which expired while his petition for review was pending
before this court. We, as a matter of grace, reinstated that
thirty-day departure period so that Khalil could leave the country
voluntarily without incurring the penalties for forcible removal.
Id. at 56. In doing so, we applied the rule of Umanzor-Alvarado v.
INS, 896 F.2d 14 (1st Cir. 1990) (Breyer, J.), which held that
courts have the inherent equitable authority to decide on a case-
by-case basis to reinstate the period of voluntary departure
earlier granted by the BIA as part of their review of petitions
challenging BIA actions. Id. at 16. The penalties for failing to
depart within the designated voluntary departure period are
significant. Violators may be fined $1,000 to $5,000 and are
ineligible for ten years for further grants of voluntary departure,
cancellation of removal, adjustment of status, change of
nonimmigrant classification, or creation of a record of lawful
admission for permanent residence. 8 U.S.C. § 1229c(d). In
addition, if a default removal order has been entered, violators
may be deported and, accordingly, be prevented from returning to
the United States without the prior consent of the Attorney General
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for either five or ten years, depending on the circumstances.
See id. § 1182(a)(9)(A).
Khalil did not leave within the thirty days he had been
given by this court. Instead, Khalil waited (without seeking an
extension of that thirty-day period) to see how this court would
decide the instant case: a second petition for review, filed
earlier on July 2, 2003, from the BIA's denial of his separate
motion to reopen for adjustment of status. The BIA had denied
Khalil's petition on the ground that he was not eligible for
adjustment of status because he had overstayed the voluntary
departure period originally granted by the BIA in September 2002.
Khalil did not seek any interim relief from this court pending
review of his second petition. In this petition, he argues that
our earlier reinstatement of the privilege of voluntary departure
for a limited period operates retroactively and means that the
BIA's basis for denying his motion to reopen is now wrong.
We affirm the BIA's decision and hold that this court's
reinstatement of the privilege of voluntary departure did not have
retroactive effect and thus does not provide a basis to overturn
the BIA's denial of Khalil's motion to reopen.
We also outline, for the purpose of alerting aliens and
the bar to the issue, a broader argument that the respondent chose
to make in this case: that federal courts lack the power to
reinstate the privilege of voluntary departure as part of their
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review of petitions challenging BIA actions and, in the
alternative, that if the courts have such power, it is restricted
to situations in which a petitioner moved for a stay from the court
before the voluntary departure period granted by the agency
expired. The respondent, recognizing that Umanzor-
Alvarado conflicts with its position, identifies changes in the
statutory scheme and asks us to overrule that case. We reserve the
issue of the bounds of this court's authority for another case
where resolution of that issue is required.
I.
On September 23, 2002, the BIA affirmed an immigration
judge's order denying Khalil asylum and withholding of deportation,
and gave Khalil thirty days from the date of the order to
voluntarily depart. Khalil had claimed religious persecution as a
Coptic Christian in Egypt. The BIA's order included a written
notice outlining the statutory penalties for failing to depart
within the allotted time. The BIA also entered a default order of
removal to Egypt if Khalil failed to depart on time.
Khalil did not depart, but appealed the BIA's order to
this court on October 22, 2002. He asked the Immigration and
Naturalization Service (INS)1 to extend his period of voluntary
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
(BICE). For simplicity, we refer to the agency throughout this
opinion as the INS.
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departure pending our review. The INS denied his request and set
a new January 9, 2003 departure date.
On November 26, 2002, he filed a separate motion with the
BIA to reopen proceedings in order to adjust his status based on an
immigrant visa petition filed by his employer and approved by the
INS on November 18. See 8 U.S.C. § 1255(i)(1) (allowing adjustment
of status based on such a visa petition, provided certain
conditions are fulfilled). Khalil did not raise in that motion the
possible effect of an order from this court reinstating the period
of voluntary departure.
The January 9 deadline passed, but Khalil did not leave.
Nor did he file with this court a motion to stay removal or toll
the running of the period for voluntary departure.2 We note,
though, that the INS had neither detained Khalil nor scheduled him
for removal, so there was no event (apart from the passing of the
January 9 deadline) that would have prompted Khalil to seek a stay
from the court.
The BIA denied the motion to reopen on June 2, 2003 on
the ground that Khalil was statutorily ineligible to apply for
adjustment of status because he had overstayed the January 9
2
To qualify for a stay of removal, a petitioner must
demonstrate (1) likelihood of success on the merits of the
underlying appeal; (2) potential for irreparable harm absent the
stay; (3) that the balance of interests weighs in favor of granting
the stay; and (4) that the stay would not disserve the public
interest. See Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003).
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deadline for voluntary departure. See 8 U.S.C. § 1229c(d). On
July 2, 2003, Khalil filed the instant petition for review of that
denial.
Meanwhile, Khalil's appeal on his first petition was
still pending in this court. On July 24, 2003, this court affirmed
the BIA's denial of asylum and withholding of deportation and
reinstated the thirty-day period of voluntary departure originally
granted by the BIA, citing Yatskin v. INS, 255 F.3d 5, 11 (1st Cir.
2001). Khalil, 337 F.3d at 56. The panel was not made aware of
Khalil's expired January 9, 2003 departure deadline.3
Mandate issued on October 23, 2003 without the respondent
having petitioned for rehearing by the panel or en banc to
challenge the reinstatement order.
II.
On appeal from the BIA's denial of his motion to reopen,
Khalil does not contest that if he had overstayed his period of
voluntary departure, he would in fact be statutorily ineligible for
adjustment of status under 8 U.S.C. § 1229c(d), and his motion to
reopen would have been properly denied. Instead, he argues that he
did not overstay his departure period because this court's July 24,
2003 reinstatement of the voluntary departure period retroactively
3
Khalil did not request reinstatement of voluntary
departure in that appeal, and therefore the respondent had no
occasion to argue that the court lacked the power to grant such
reinstatement.
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operated to extend his period of departure beyond January 9, 2003.
Accordingly, he urges that the BIA's decision be vacated and
remanded with instructions to treat him as statutorily eligible for
adjustment of status or, in the alternative, to consider the effect
of this court's reinstatement of voluntary departure.
As the respondent correctly points out, Khalil did not
raise the possible effect of any reinstatement order from this
court with the BIA in his motion to reopen. Nor did he return to
the BIA once our reinstatement order was issued. As a result, he
has likely waived the issue. Nonetheless, we reach the issue in
order to settle the question he raises.
We reject Khalil's argument. Ordinarily, grants of
equitable relief apply prospectively rather than retroactively.
That is why, for example, plaintiffs must show a need for
prospective relief in order to obtain an injunction. See Lopez v.
Garriga, 917 F.2d 63, 67-68 (1st Cir. 1990). Khalil has not cited
any authority, or even any reason, for viewing the reinstatement by
a court of appeals of a limited period for voluntary departure any
differently. This court's reinstatement of voluntary departure was
not intended to apply retroactively. Nor should it be understood
that way: Black's Law Dictionary defines "reinstate" as "to place
again in a former state or position; to restore." Black's Law
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Dictionary at 1290 (7th ed. 1999). We were restarting the clock on
a period that had already run.4
The reinstatement of the privilege of voluntary
departure, which operates prospectively, gives a petitioner an
opportunity, after taking his appeal, to depart at his own expense
to a country of his own choosing without facing the adverse
consequences of deportation. See 8 U.S.C. § 1182(a)(9)(A)
(explaining those consequences). It does not retroactively nullify
the fact that a petitioner overstayed his original period of
voluntary departure. Khalil was statutorily ineligible for
adjustment of status at the time of the BIA's decision and remains
so today.
The respondent raises questions about whether a
reinstated period of voluntary departure begins running from the
date of this court's decision or from the issuance of mandate and
whether the period is stayed if the alien seeks review in the
Supreme Court.5 We need not -- and do not -- address those
questions today because, under any interpretation, it is clear that
Khalil has overstayed and abused the time he was given by this
court, and so has again lost the privilege of voluntary departure.
4
We further note that adoption of Khalil's position would
obviously undercut the finality of decisions by the BIA and this
court.
5
We held in Umanzor-Alvarado that the period runs from the
date that this court's mandate issues. 896 F.2d at 16. We have
not since revisited that question.
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III.
Although this opinion could end there, we think it better
to note but not decide two challenges raised by the respondent to
this court's authority to reinstate voluntary departure in its
decision on a petition for review. This discussion is meant simply
to outline some of the relevant arguments; it should not be
construed as a prediction as to how the questions raised by the
respondent should be answered.
The respondent first asserts, in the broader of its two
challenges, that this court lacks the authority ever to stay or
reinstate voluntary departure because the respondent reads the
current version of the Immigration and Nationality Act (INA) as
vesting such authority solely in the INS. Fourteen years ago,
under a different version of the INA, this court rejected that
argument, holding that we may reinstate voluntary departure as part
of our inherent equitable authority to order the appropriate remedy
in a case before us. Id.
Six years later, in 1996, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA). Pub.
L. No. 104-208, 110 Stat. 3009-546 (1996). The IIRIRA included a
series of amendments to the INA, some of which limited the courts'
review of various discretionary decisions by the Attorney General,
see Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
485 (1999), but none of which expressly addressed the power of the
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courts of appeals, as part of their review of petitions properly
before them, to reinstate periods of voluntary departure previously
granted by the BIA.
The respondent argues that the IIRIRA undermined the
reasoning behind Umanzor-Alvarado and requires us to overturn that
case. First, the respondent contends, Umanzor-Alvarado was
motivated primarily by the concern that absent an order reinstating
voluntary departure after review, aliens would be forced to choose
between seeking judicial review and leaving within the time
allotted for voluntary departure. That was because the pre-IIRIRA
version of the INA barred courts from reviewing removal orders if
the alien in question had departed the country. 8 U.S.C. §
1105a(c) (1994) (repealed). The respondent points out, however,
that the IIRIRA has eliminated that provision, thus permitting an
alien who has voluntarily departed or who has been deported to
continue his appeal.
Second, the respondent points to 8 U.S.C. § 1229c(b)(2),
which provides that "[p]ermission to depart voluntarily under this
subsection shall not be valid for a period exceeding 60 days," and
argues that judicial reinstatement of voluntary departure will
often impermissibly extend the period beyond this statutory limit.
The respondent also relies on 8 C.F.R. § 1240.26(f), which states
that "[a]uthority to extend the time within which to depart
voluntarily specified initially by an immigration judge or the
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Board is only within the jurisdiction of the district director."
That statute and that regulation, however, both describe the
authority of the Attorney General, not that of the courts. See 8
U.S.C. § 1229c(b) (describing the circumstances in which "[t]he
Attorney General may permit an alien voluntarily to depart the
United States"); 8 C.F.R. § 1240.26 (regulation labeled as
"Voluntary departure -- authority of the Executive Office for
Immigration Review"). The provisions that describe the authority
of the courts provide instead that "[j]udicial review of a final
order of removal . . . is governed only by chapter 158 of Title
28." 8 U.S.C. § 1252(a)(1). In turn, chapter 158 of Title 28
provides that "[t]he filing of the petition to review does not of
itself stay or suspend the operation of the order of the agency,
but the court of appeals in its discretion may restrain or suspend,
in whole or in part, the operation of the order pending the final
hearing and determination of the petition." 28 U.S.C. § 2349(b)
(emphasis added).
The respondent's broader challenge has been rejected by
two circuits, see Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.
2003); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003)
(adopting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175-78 (9th
Cir. 2003) (Berzon, J., concurring)), and accepted by one,
see Reynoso-Lopez v. Ashcroft, No. 02-3278 (3d Cir. May 25, 2004).
Both circuits that have rejected the respondent's argument have
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expressed the concern that, particularly in asylum cases, aliens
who voluntarily depart may be returning to home countries where
they are unsafe or, even if safe, will not be allowed to return to
the United States should they be successful on judicial review.
See Nwakanma, 352 F.3d at 327; Zazueta-Carrillo, 322 F.3d at 1176-
77. While aliens in these situations may formally retain their
right to appeal under the post-IIRIRA statute after leaving this
country, their purpose in seeking an appeal is arguably thwarted.
See Zazueta-Carrillo, 322 F.3d at 1177. Those two courts concluded
that although court-ordered stays of voluntary departure delay
departure and may impose costs on the government, such stays are
necessary in some cases to ensure the right to meaningful judicial
review.
Additionally, those two courts rejected the respondent's
argument under 8 U.S.C. § 1229c(b)(2) and 8 C.F.R. § 1240.26(f) on
the ground that a stay or reinstatement of voluntary departure did
not "extend" the period for departure, but instead merely restarted
the clock for the running of the departure period designated by the
agency. See Nwakanma, 352 F.3d at 327; Zazueta-Carrillo, 322 F.3d
at 1176.
Perhaps recognizing these concerns, the respondent
offered a second, more limited challenge to the courts' authority
to reinstate voluntary departure at oral argument. The respondent
contends that even assuming (without conceding) that courts have
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the power, either by statute or inherently, to reinstate voluntary
departure when they decide a petition for review, they may do so
only when the petitioner filed a motion with the court before the
departure period expired to stay removal or to toll the running of
the period of voluntary departure. The Ninth Circuit recently
adopted this position in Garcia v. Ashcroft, No. 02-71630 (9th Cir.
May 27, 2004). The respondent further argues that the fact that a
petitioner has not been detained or scheduled for deportation does
not excuse the alien's failure to file such a motion. This policy,
the respondent argues, is necessary to ensure that the court has
the opportunity to determine whether the traditional four-part test
for a stay, which requires, inter alia, a showing of a substantial
likelihood of success on the merits of the underlying petition, has
been met. See Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003).
If voluntary departure can be stayed or reinstated without such a
showing, the respondent warns, petitioners will be encouraged to
file frivolous appeals merely to extend their stays in this
country. The IIRIRA, the respondent urges, eliminated provisions
of the INA that automatically stayed removal upon the filing of a
petition for judicial review to address precisely such concerns.
See 8 U.S.C. § 1252(b)(3)(B) (a petition for review does not stay
removal unless a court orders otherwise). Khalil's brief does not
address any of the respondent's arguments on this issue, so we
outline no arguments for a contrary conclusion.
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The respondent's arguments, whatever their merits, raise
concerns about notice to the bar and aliens of the respondent's
present position. Since Umanzor-Alvarado, this court's practice
when the agency has granted a period for voluntary departure has
been to decide on a case-by-case basis whether to reinstate that
departure period upon rendering our decision on the underlying
petition. See, e.g., Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st
Cir. 2003); Disu v. Ashcroft, 338 F.3d 13, 18 (1st Cir. 2003);
Quevedo v. Ashcroft, 336 F.3d 39, 45-46 (1st Cir. 2003); Yatskin,
255 F.3d at 11. The practice of the bar in this circuit, we
observe, has been not to file motions with this court to toll or to
stay the running of the period of voluntary departure pending
judicial review. We are unaware of any rules promulgated by the
INS giving notice to the bar and aliens of the position that the
respondent has taken in this litigation. No doubt this court will
in a later case be required to resolve these questions. We would
encourage the attention of the bar and potential amici on both
sides to the issue.
IV.
The denial of the motion to reopen is affirmed. Khalil,
having failed to depart earlier within the time permitted by this
court, has lost the privilege of voluntary departure as well as the
right to petition further for adjustment of status.
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