United States Court of Appeals
For the First Circuit
No. 05-2789
MUHAMMAD NAEEM,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF A FINAL
ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lipez and Howard,
Circuit Judges.
Stephen A. Lagana, with whom Lagana & Associates was on brief,
for petitioner.
Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, with whom Peter D. Keisler, Assistant Attorney General,
and Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, were on brief, for respondent.
November 20, 2006
SELYA, Circuit Judge. This proceeding raises questions
about the application of the current version of the statutory
provisions governing voluntary departure. It involves an alien
who, after being granted the privilege of voluntary departure,
neither timeously departed nor requested an extension or stay of
the voluntary departure deadline. The Board of Immigration Appeals
(BIA) thereafter denied the alien's motion to reopen his removal
proceedings on the ground that his non-compliance with the
voluntary departure terms rendered him statutorily ineligible for
the relief that he hoped to obtain through a reopening. Discerning
no reversible error, we deny the alien's petition for judicial
review.
The material facts are not seriously disputed. The
petitioner, Muhammad Naeem, is a Pakistani national who entered the
United States, without inspection, in 1994 or 1995. On October 23,
2001, he married a woman who was both a lawful permanent resident
of the United States and a candidate to become a United States
citizen through naturalization. A few weeks later, his bride filed
an I-130 "immediate relative" visa application seeking to adjust
his status in line with hers. See 8 C.F.R. § 204.2.
On January 28, 2003, immigration authorities commenced a
removal proceeding against the petitioner. At a hearing on January
27, 2004, an immigration judge (IJ) not only refused the
petitioner's request for a continuance in order to allow his wife
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to complete the naturalization process but also found him
removable. The IJ did, however, grant the petitioner's request for
voluntary departure.
The petitioner appealed. While that appeal was pending
before the BIA, two significant events occurred: (i) on March 5,
2005, the petitioner's wife received administrative approval of her
previously filed "immediate relative" visa application and (ii) on
June 1, 2005, she became a naturalized United States citizen. Less
than a month later, the BIA (which, at the time, had no evidence of
the completed naturalization before it) affirmed the IJ's decision.
It simultaneously granted the petitioner an additional period for
voluntary departure. That grant opened a 60-day window for his
voluntary departure from the United States, subject to "any
[administrative] extension beyond that time as may be granted by
the Department of Homeland Security."
The BIA handed down its ukase on June 28, 2005. Thus,
the voluntary departure period expired in late August. During that
interval, the petitioner neither sought judicial review of the
order nor left the country; instead, he waited until September 23,
2005, and filed a motion asking the BIA to reopen the removal
proceedings so that he might apply for adjustment of status based
on his wife's naturalization.1 Under the BIA's regulations, this
1
When a United States citizen or lawful permanent resident
marries an alien, she can petition to have her alien-spouse
classified as an "immediate relative" and, thus, pave the way for
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motion was timely. See 8 C.F.R. § 1003.2(c)(2) (establishing a 90-
day window for the filing of motions to reopen).
On November 9, 2005, the BIA denied the motion to reopen
and ordered the petitioner removed from the United States. The BIA
reasoned that the petitioner was statutorily ineligible for
adjustment of status because he had overstayed the allotted
voluntary departure period. See 8 U.S.C. § 1229c(d). This timely
petition for judicial review followed. See id. § 1252(a).
We review the denial of a motion to reopen for abuse of
discretion, regardless of the substantive claim involved. See INS
v. Doherty, 502 U.S. 314, 315 (1992). In conducting that review,
we focus not on the BIA's decision on the merits but, rather, on
its reasons for refusing to reopen the record. Carter v. INS, 90
F.3d 14, 16-17 (1st Cir. 1996). In this instance, the BIA denied
the motion to reopen because it deemed the petitioner statutorily
ineligible for adjustment of status under 8 U.S.C. § 1229c(d). The
question, then, is whether the denial of the motion on that ground
was within the encincture of the BIA's discretion.
We turn to that question, mindful of two ancillary
considerations. First, a material mistake of law always
constitutes an abuse of discretion. See, e.g., Rosario-Urdaz v.
legitimizing his immigration status. See 8 U.S.C. §§
1151(b)(2)(A)(i), 1154. Once classified as an immediate relative,
the alien-spouse becomes eligible to seek an adjustment of his
immigration status to that of lawful permanent resident under 8
U.S.C. § 1255(a).
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Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003); United States
v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998). Second, the BIA's
construction of immigration statutes is reviewed de novo, subject,
however, to principles of Chevron deference. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999); see also Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
Voluntary departure is a discretionary form of relief. If
an alien chooses to seek it — and that choice is entirely up to the
alien — it can produce a win-win situation. See Bocova v.
Gonzales, 412 F.3d 257, 265 (1st Cir. 2005). Voluntary departure
benefits the government by expediting repatriation and eliminating
the costs associated with deportation. At the same time, it
benefits the alien by allowing him to choose his destination and
avoid some of the penalties attendant to removal.
Withal, voluntary departure has a dark side. The
benefits normally associated with voluntary departure come with
corollary responsibilities. An alien who permits his voluntary
departure period to run and fails to leave the country before the
expiration date faces severe sanctions; these may include
forfeiture of the required bond, a fine, and a ten-year interval of
ineligibility for certain forms of immigration-related relief. In
that regard, the applicable statute provides:
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
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ineligible, for a period of 10 years, to
receive 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)(1).
That statutory provision applies here. The petitioner,
who admittedly failed to quit the United States within the
prescribed voluntary departure period, falls squarely within the
quoted language. At first blush, then, it appears that the BIA
acted appropriately in finding him statutorily ineligible for
adjustment of status (and, thus, denying his motion to reopen).
In an effort to throw a monkey wrench into the BIA's
mechanical application of the statute, the petitioner argues that
his voluntary departure period should be deemed to have been tolled
during the 90-day period allotted for filing a motion to reopen,
see 8 C.F.R. § 1003.2(c)(2), and thereafter during the pendency of
the motion. In his view, this 90-day period conflicts with the
shorter 60-day period that the BIA allotted for his voluntary
departure, and a failure to toll the latter period would, as a
practical matter, frustrate his statutorily guaranteed right to
take advantage of the former period.
On the facts of this case, this argument is unavailing.
The petitioner allowed his assigned voluntary departure period to
lapse before moving to reopen, and it is settled in this circuit
that a court may not resurrect a voluntary departure deadline that
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already has expired.2 See Bocova, 412 F.3d at 266. Even the
granting of a motion to reopen "cannot expunge [an alien's]
previous violation of an order to depart." DaCosta v. Gonzales,
449 F.3d 45, 49 (1st Cir. 2006).
This is not a matter of either judicial discretion or
punctilious pettifoggery. The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) altered the power of
the federal courts with respect to voluntary departure, withdrawing
jurisdiction to review grants or denials of voluntary departure and
ceding to the Executive Branch the sole authority to determine the
length of a voluntary departure period. See 8 U.S.C. § 1229c(f);
8 C.F.R. § 1240.26(f); see also Bocova, 412 F.3d at 266.
Reinstatement of a lapsed period of voluntary departure would be
the functional equivalent of fashioning a new voluntary departure
period, which would arrogate unto the court a power deliberately
withheld by Congress and, in the bargain, contravene Congress's
clearly expressed intention.
This is not to say that grants of voluntary departure are
immune from any and all judicial scrutiny. Even though the courts
of appeals cannot reinstate expired voluntary departure periods,
2
This view of the law is consistent with the view of many
other courts of appeals. See, e.g., Mullai v. Ashcroft, 385 F.3d
635, 639-40 (6th Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 616
(8th Cir. 2004); Ngarurih v. Ashcroft, 371 F.3d 182, 192-93 (4th
Cir. 2004); Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280-81 (3d
Cir. 2004); Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir.
2004).
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they retain the power, on a properly targeted request, to suspend
or stay the running of an unexpired voluntary departure period.
See Bocova, 412 F.3d at 266. In this case, the petitioner, prior
to the end of the period prescribed for voluntary departure, had a
full and fair opportunity to seek a judicial stay to prevent the
running of the unexpired portion of that period, see Bocova, 412
F.3d at 266, but did not do so.3 Viewed in this light, it was the
petitioner's inaction, not any inconsistency in the statutory or
regulatory schemes, that deprived this court of remedial
jurisdiction and created the temporal unevenness of which the
petitioner now complains.
Relatedly, the petitioner argues that the BIA incorrectly
invoked Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), aff'd, 141
F.3d 953 (9th Cir. 1998), in connection with its statement that,
"absent a showing of exceptional circumstances," his failure
voluntarily to depart foreclosed new discretionary relief. This is
a bit of a red herring. While Shaar's continuing vitality is
questionable in light of the IIRIRA's omission of the "exceptional
circumstances" language that had been included in the former
Immigration and Nationality Act, 8 U.S.C. § 1252b(e) (repealed
1996), the BIA's reasonable interpretation of its controlling
statute, 8 U.S.C. § 1229c(d), renders harmless any error that it
3
The petitioner also could have filed for an administrative
extension of the voluntary departure deadline. See 8 C.F.R. §
1240.26(f). He made no such effort.
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might have made in clinging to Shaar. See DaCosta, 449 F.3d at 48
n.3.
We have one more bridge to cross. The petitioner makes
a last-ditch effort to salvage his case by claiming that IIRIRA's
jurisdiction-stripping amendments and its attachment of preclusive
consequences to the expiration of unused voluntary departure
periods violated his rights under two different provisions of the
Fourteenth Amendment: the Equal Protection Clause and the Due
Process Clause. This plaint contains more cry than wool.
As we understand it, the petitioner's equal protection
argument is that, as an alien who had been granted the privilege of
voluntary departure, the Equal Protection Clause was somehow
infringed when the BIA used the expiration of that period as a
lever to scuttle his timely motion to reopen. There is no basis
here for an equal protection claim.
The petitioner is not a member of a suspect class and,
therefore, under the Equal Protection Clause the statutory scheme
need only pass rational basis review. Heller v. Doe, 509 U.S. 312,
320 (1993); Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000).
Here, it is nose-on-the-face plain that Congress passed the IIRIRA
with the intention of improving the alien removal process. See
Bocova, 412 F.3d at 266. The amendments to the voluntary departure
provision are rationally related to that end. Hence, the
amendments pass muster under the requirements for rational basis
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review. See de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.
2004); Almon v. Reno, 192 F.3d 28, 31-32 (1st Cir. 1999).
The petitioner's due process challenge is no more robust.
For due process protections to attach, there must be a cognizable
property or liberty interest at stake. See Mathews v. Eldridge,
424 U.S. 319, 334-35 (1976). Reopening, adjustment of status, and
voluntary departure are all discretionary in nature; none of these
forms of relief is an entitlement or a right.4 It follows
inexorably that an alien has no protected property or liberty
interest in reopening proceedings, adjustment of status, or
voluntary departure. See Jupiter v. Ashcroft, 396 F.3d 487, 491
(1st Cir. 2005). Accordingly, an alien may not base a due process
claim on a denial thereof.
We need go no further. For the reasons elucidated above,
we affirm the BIA's order refusing to reopen the removal
proceedings and deny the petition for judicial review.
So Ordered.
4
Here, moreover, no claim is made that the BIA failed to honor
its own procedures.
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