United States Court of Appeals
For the First Circuit
No. 04-1649
JEAN-RONY JUPITER, A/K/A JEAN R. JUPITER,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Raymond Kline on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Christopher C. Fuller, Senior Litigation Counsel, and William C.
Minick, Attorney, Office of Immigration Litigation, on brief for
respondent.
February 8, 2005
SELYA, Circuit Judge. The petitioner, Jean-Rony Jupiter,
seeks review of a final order of the Board of Immigration Appeals
(BIA) denying his second motion to reopen his removal proceeding.
His petition founders on procedural shoals.
The facts are straightforward. In 1995, the petitioner,
a Haitian national, entered the United States illegally and became
a resident of the Virgin Islands. Two years later, the Immigration
and Naturalization Service (INS) instituted a removal proceeding.1
At that point, the petitioner cross-applied for asylum.
One week before the scheduled hearing, the petitioner's
attorney, Warren M. Williams, informed the immigration court that
the petitioner wished to withdraw his asylum application and to
effect a voluntary departure from the United States within the next
four months. At the subsequent hearing, the petitioner appeared
alongside several other similarly situated aliens, each of whom had
made an identical proposal. The Immigration Judge (IJ) granted the
requests and allowed the petitioner to depart voluntarily from the
United States on or before November 30, 1998.
In short order, the petitioner retained a new attorney,
Vincent A. Fuller, Jr. On September 25, 1998, he moved to reopen
his removal proceeding. In an affidavit filed in support of this
1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred many of its duties to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004).
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motion, he claimed that his original lawyer had failed to advise
him fully about his rights.
The IJ denied the motion "without prejudice," noting that
the petitioner had "failed to comply" with the procedural
requirements attendant to the filing of a motion to reopen premised
on ineffectiveness of counsel. See Matter of Lozada, 19 I. & N.
Dec. 637, 639 (BIA) (explaining that an alien moving to reopen on
the ground of ineffective assistance of counsel must, inter alia,
provide his former attorney with notice and an opportunity to
respond), review denied, 857 F.2d 10 (1st Cir. 1988). The denial
of the motion to reopen took place on October 21, 1998 (slightly
over one month before the voluntary departure deadline).
The petitioner did not depart within the allotted period.
He remained in the United States, moved to Atlanta (without
notifying the INS), married an American citizen, and fathered a
child.
In 1999, the petitioner's wife filed an I-130 "immediate
relative" petition in an attempt to lay the groundwork for
adjusting the petitioner's status to that of a lawful permanent
resident. The INS accepted that petition in 2002. On January 13,
2003, the petitioner, through yet another attorney, filed a second
motion to reopen his removal proceeding.2 He proposed reopening in
2
The petitioner has eschewed any argument that this motion was
not a second motion because the IJ had denied his first motion to
reopen "without prejudice." In all events, that argument would not
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order to permit him to file a change of status application premised
upon his marriage. In the body of the motion, his counsel
asseverated that exceptional circumstances had prevented the
petitioner from complying with the voluntary departure deadline.
Those circumstances were twofold: (i) Fuller had never informed
the petitioner of the denial of his first motion to reopen, and the
petitioner had assumed that its pendency entitled him to remain in
the United States; and (ii) human rights violations in Haiti were
sufficiently pervasive to warrant non-enforcement of the removal
order.3 In a terse handwritten order, the IJ denied the
petitioner's motion. The order limned two independently sufficient
wash. The petitioner waited over four years before filing his
second motion to reopen. That motion made no attempt either to
remedy the Lozada defects that prompted the denial of his original
motion or to reallege the claim of ineffective assistance of
counsel. Instead, his new motion totally abandoned the ineffective
assistance claim in favor of a wholly different legal theory
premised on entirely different facts. If the IJ's order in
response to the petitioner's first motion to reopen left open the
possibility of a second motion — a matter on which we take no view
— it did so only "insomuch as [the petitioner] failed to comply
with . . . Lozada." The IJ's use of the phrase "without prejudice"
did not give the petitioner an open-ended ticket to challenge the
order of removal at any future time and on any conceivable grounds.
3
As to the latter circumstance, the motion papers intimated
that the petitioner was entitled to relief under the Haitian
Refugee Immigration Fairness Act of 1998 (HRIFA), Pub. L. 105-277,
div. A, sec. 101(h), § 901 et seq., 112 Stat. 2681, 2681-538 to -
542. This proved to be a red herring, and the petitioner
subsequently abandoned the HRIFA claim. Although we need not deal
with it here, we note that the petitioner plainly does not satisfy
HRIFA's eligibility criteria. See id. § 902(b)(1), 112 Stat. at
2681-538 (conditioning eligibility for special prophylaxis on,
inter alia, an alien's having been paroled into the United States
or having applied for asylum before December 31, 1995).
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grounds: (i) this was the petitioner's second motion to reopen;
and (ii) reopening would be futile because the petitioner had
overstayed his voluntary departure date and, accordingly, was
barred from readjusting his status. The IJ did not comment on the
fact that the motion apparently had been filed out of time. See 8
C.F.R. § 1003.23(a)(1) (ordaining that a motion to reopen must be
filed within ninety days of the date of entry of a final
administrative order).
The petitioner took a timely appeal to the BIA. He did
not address the first ground relied on by the IJ and only obliquely
attempted to counter the second ground. Instead, he reiterated the
same claims he had made in his second motion to reopen. The BIA
affirmed without opinion on April 21, 2004. This petition for
judicial review followed.
The abuse of discretion standard governs judicial review
of the denial of a motion to reopen, regardless of the substantive
claim involved. See INS v. Doherty, 502 U.S. 314, 323 (1992).
Where, as here, the BIA has employed its streamlined "affirmance
without opinion" procedure, see 8 C.F.R. § 1003.1(e)(4), we review
directly the IJ's decision as if it were the decision of the BIA.
See Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003); El Moraghy v.
Ashcroft, 331 F.3d 195, 203 (1st Cir. 2003). In so doing, we focus
not on the merits of the petitioner's excludability, but, rather,
on the IJ's decision to deny the motion to reopen. Carter v. INS,
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90 F.3d 14, 16-17 (1st Cir. 1996). Here, then, we proceed to
examine the two grounds underpinning the IJ's order.
The first ground is that the petitioner's motion was a
second motion to reopen and, thus, numerically barred. The
applicable regulation places a numerical ceiling of one on the
number of motions to reopen that a party may file before an IJ.
See 8 C.F.R. § 1003.23(b)(1) (stating that "a party may file only
. . . one motion to reopen proceedings").4 The petitioner has
never disputed that his January 13, 2003 motion to reopen was
numerically barred under this regulation (after all, he had filed
a previous motion to reopen on September 25, 1998). Moreover, the
petitioner utterly failed to challenge this finding on appeal to
the BIA. Consequently, the IJ's determination that the
petitioner's second motion to reopen was numerically barred by 8
C.F.R. § 1003.23(b)(1) has become final and unreviewable. See
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) (explaining
that theories not advanced before the BIA may not be surfaced for
the first time in a petition for judicial review); Sousa v. INS,
226 F.3d 28, 31-32 (1st Cir. 2000) (similar); see also 8 U.S.C. §
4
This limitation may be relaxed if a petitioner can show
either that conditions in his native land have changed materially
or that the underlying order of removal was entered in absentia
because of the petitioner's inability to appear. 8 C.F.R. §
1003.23(b)(4)(i-ii). The petitioner makes no developed argument
that either of these exceptions applies in this case. The
regulations provide no grounds for relief based on changes in a
petitioner's marital status or domestic circumstances.
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1252(d)(1) ("A court may review a final order of removal only if .
. . the alien has exhausted all administrative remedies available
to the alien as of right.").5
The IJ's alternative basis for denying the petitioner's
second motion to reopen posited that the motion was futile because
the petitioner's non-observance of the voluntary departure deadline
rendered him ineligible for the relief ultimately sought. The
applicable statute provides in pertinent part:
If an alien is permitted to depart voluntarily
under this section and fails voluntarily to
depart the United States within the time
period specified, the alien shall be . . .
ineligible for a period of 10 years for any
further relief under this section and sections
1229b, 1255 [adjustment of status], 1258, and
1259 of this title.
8 U.S.C. § 1229c(d). The petitioner falls squarely within the
plain language of this statute and, thus, the IJ supportably found
the petitioner statutorily ineligible for adjustment of status
because of his earlier failure to adhere to the voluntary departure
deadline.
The petitioner attempts to confess and avoid. He admits
that he did not depart within the allotted period but asserts that
exceptional circumstances excused his decision to ignore the
5
At the expense of carting coal to Newcastle, we add that the
petitioner has also waived this point by neglecting to raise it in
his opening brief to this court. See, e.g., Mediouni v. INS, 314
F.3d 24, 28 n.5 (1st Cir. 2002); Sandstrom v. ChemLawn Corp., 904
F.2d 83, 89 n.6 (1st Cir. 1990).
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deadline. The principal circumstance to which he adverts is that
Fuller, his counsel at the time, neglected to notify him when his
first motion to reopen was denied.
Assuming, for argument's sake, that exceptional
circumstances might justify the granting of a second motion to
reopen and that a failure to reopen in the face of exceptional
circumstances would be judicially reviewable, the petitioner's
claim is nonetheless empty. There is simply no evidence in the
record that the petitioner did not receive notice of the denial.
His second motion to reopen was unaccompanied by an affidavit or
sworn statement attesting to the facts as represented by his
counsel in the body of the motion (counsel represented, without
record support, that the petitioner was "unaware" that the IJ had
denied his prior motion to reopen and so, "[b]elieving that his
case was still pending . . . remained in the United States beyond
the voluntary departure deadline"). Counsel's factual assertions
in pleadings or legal memoranda are not evidence and do not
establish material facts. See, e.g., Corrada Betances v. Sea-Land
Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001); United States v.
Fetlow, 21 F.3d 243, 248 (8th Cir. 1994); cf. 8 C.F.R. §
1003.23(b)(3) (providing in general that motions to reopen
addressed to an IJ "shall be supported by affidavits and other
evidentiary material"). This failure to establish a lack of notice
undermines the petitioner's claim.
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At any rate, the claim is bootless. Even if the
petitioner believed that his motion to reopen had never been
adjudicated, he would not be eligible for relief. The fact that an
unadjudicated motion is pending does not constitute an exceptional
circumstance sufficient to blunt the force of section 1229c(d) and
excuse a failure to depart voluntarily pursuant to an existing
order. See, e.g., Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.
1999); Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999); Shaar v.
INS, 141 F.3d 953, 957 (9th Cir. 1998). To satisfy the
"exceptional circumstances" requirement, an alien must show that he
was unable to comply with the departure deadline. Mardones, 197
F.3d at 624. There was nothing of legal significance that
prevented the petitioner from departing by November 30, 1998; at
best, he simply took it upon himself to stay in the United States
while awaiting the outcome of his motion to reopen. So viewed, the
record adequately evinces that the petitioner was unwilling, rather
than unable, to depart. Thus, the IJ did not abuse her discretion
in denying the petitioner's second motion to reopen on the
alternative ground that the petitioner was statutorily ineligible
for adjustment of status.
There is one final point. The petitioner attempts to
salvage matters by invoking the Due Process Clause. He argues that
by failing to extend the voluntary departure deadline, the IJ
deprived him of his constitutional right to due process.
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To be sure, this claim was not raised below. Still, an
asserted denial of due process may, in certain limited
circumstances, be exempt from the ordinary exhaustion requirement.
See, e.g., Ravindran v. INS, 976 F.2d 754, 762 (1st Cir. 1992).
These circumstances are rare and are restricted to claims that are
beyond the authority of the agency to adjudicate. See id. For
purposes of this case, however, we need not probe that procedural
point too deeply. Even assuming, for argument's sake, that we have
jurisdiction to review such a claim, the record in this case is
devoid of any sufficient factual support for it.
The petitioner's purported due process claim is nothing
more than a reformulated attack on the IJ's discretionary refusal
to extend the voluntary departure deadline after the fact (or, more
precisely put, to overlook the petitioner's violation of that
deadline). That reframed attack presents no substantial
constitutional question. See, e.g., Bernal-Vallejo v. INS, 195
F.3d 56, 63 (1st Cir. 1999).
In all events, the petitioner cannot premise a colorable
due process claim solely on the denial of an opportunity to depart
later. For due process to attach, there must be a cognizable
liberty or property interest at stake. See Mathews v. Eldridge,
424 U.S. 319, 334-35 (1976). None exists here. "Adjustment of
status is not an entitlement," but, rather, a matter of
administrative discretion. Henry v. INS, 74 F.3d 1, 7 (1st Cir.
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1996); see also INS v. Abudu, 485 U.S. 94, 105 (1988). So too
voluntary departure, which is a privilege, not a right. See Tamas-
Mercea v. Reno, 222 F.3d 417, 427 (7th Cir. 2000); see also 8
U.S.C. § 1229c(f) (depriving federal courts of appellate
jurisdiction over denials of voluntary departure). There is no
property interest involved and, because the relief of voluntary
departure (like the relief of adjustment of status) is essentially
discretionary, there is no cognizable liberty interest in that
remedy. See Ali v. Ashcroft, 366 F.3d 407, 412 (6th Cir. 2004)
(explaining that an IJ's failure to grant voluntary departure does
not involve a deprivation of a petitioner's liberty interest); see
also Finlay v. INS, 210 F.3d 556, 557 (5th Cir. 2000) (explaining
that "the denial of discretionary relief does not rise to the level
of a constitutional violation, even if [the alien] had been
eligible for it") (citations omitted).
We need go no further.6 For the reasons set forth above,
the petition for judicial review must be denied.
So Ordered.
6
For the first time, the petitioner raises before us the
possibility that his voluntary departure deadline should be
equitably tolled. We lack jurisdiction to consider this previously
unraised contention. See Makhoul, 387 F.3d at 80; Sousa, 226 F.3d
at 31-32; see also 8 U.S.C. § 1252(d)(1).
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