NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0891n.06
Filed: December 14, 2006
Nos. 05-4076/05-4453
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MANUEL MARTINEZ-ESPINO, )
)
Petitioner, )
) ON APPEAL FROM THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO GONZALES, )
Attorney-General of the United States, ),
)
Respondent. )
BEFORE: Gilman and Griffin, Circuit Judges; and Heyburn, Chief District Judge.*
JOHN G. HEYBURN II, Chief District Judge. In a consolidated appeal, Petitioner Manuel
Martinez-Espino challenges both the denial of his motion to reopen by the Board of Immigration
Appeals (“BIA”) and the denial of his motion to reissue decision with new voluntary departure date.
As is often true in immigration cases, this appeal involves a somewhat intricate procedural context.
Nevertheless, for the reasons set forth below, we must deny Mr. Martinez-Espino’s petitions for
review.
I.
Martinez-Espino is a native and citizen of Mexico. He entered the United States without
*
The Honorable John G. Heyburn II, United States Chief District Judge for the Western
District of Kentucky, sitting by designation.
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admission or parole in May 1988. In January 1999, the former Immigration and Naturalization
Service (“INS”) filed a Notice to Appear (“NTA”) with the immigration court, charging Martinez-
Espino with removability pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”). Martinez-Espino, through counsel, admitted the allegations contained in the NTA and
conceded removability. The Immigration Judge found Martinez-Espino removable, and Martinez-
Espino does not challenge that determination.
Martinez-Espino subsequently filed an application for cancellation of removal, alleging that
his departure to Mexico with his family would present “exceptional and extremely unusual hardship”
to his U.S. citizen daughter, Kelly Martinez-Garcia. On January 27, 2004, following a merits hearing
on that issue, the Immigration Judge denied Martinez-Espino’s application for cancellation of
removal, but granted him voluntary departure.
On February 12, 2004, Martinez-Espino timely appealed that decision to the BIA. On April
7, 2005, the BIA dismissed Martinez-Espino’s appeal. In that decision, the BIA affirmed the
Immigration Judge’s denial of cancellation of removal, but granted Martinez-Espino thirty days to
voluntarily depart the United States for Mexico.
On May 6, 2005 – twenty-nine days after the BIA issued its decision – Martinez-Espino filed
a motion to reopen that purported to present new evidence regarding Kelly’s health and education
status. At the same time, Martinez-Espino also filed a motion for stay of his removal and voluntary
departure period during the pendency of his motion to reopen. On July 27, 2005, the BIA, in a one-
member opinion, denied the motion to reopen. The BIA made no comment on Martinez-Espino’s
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voluntary departure period.
On or about August 24, 2005, Martinez-Espino filed a petition for review with this Court,
arguing that the BIA denied his Fifth Amendment due process rights in the adjudication of his claim
(No. 05-4076). Martinez-Espino also filed a motion for stay of removal and voluntary departure.
On September 25, 2005, this Court issued a stay of removal, but referred the voluntary departure
issue to a merits panel.
Following the BIA’s July 27, 2005 denial of Martinez-Espino’s motion to reopen, Martinez-
Espino filed with the BIA a motion to reissue decision with a new voluntary departure date. On
October 18, 2005, the BIA denied Martinez-Espino’s motion. On November 15, 2005, Martinez-
Espino filed a second petition for review with this Court, seeking review of the BIA’s denial of his
motion to reissue decision with a new voluntary departure date (No. 05-4453). This Court
consolidated Martinez-Espino’s two petitions for review.
II.
Martinez-Espino’s first argument is that the BIA violated his Fifth Amendment due
process rights by failing to toll his voluntary departure period during the pendency of his motion
to reopen. Martinez-Espino asserts that three circuits agree with his position. Martinez-Espino
principally relies upon Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005), but also upon Kanivets
v. Gonzales, 424 F.3d 330 (3d Cir. 2005) (agreeing with Azarte) and Sidikhouya v. Gonzales, 407
F.3d 950 (8th Cir. 2005) (same). In Azarte, Kanivets, and Sidikhouya, the BIA denied a merits
hearing on motions to reopen where the petitioners had overstayed their voluntary departure
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periods. See Azarte, 394 F.3d at 1281; Kanivets, 424 F.3d at 334; Sidikhouya, 407 F.3d at 951.
In each appeal, the Circuit reversed. Only the Fifth Circuit has held that the BIA is not required
to automatically toll an alien’s voluntary departure period during the pendency of a motion to
reopen. See Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir. 2006). It is important to note
here that an alien’s failure to depart within a specified voluntary departure period has harsh legal
consequences: it automatically subjects that alien to a ten-year ban on seeking reentry into the
United States, as well as a civil penalty in the amount of $1,000 to $5,000. See 8 U.S.C. §
1229c(d). The ten-year ban also extends to applications for cancellation of removal, adjustment
of status, and other immigration benefits. Id.
In Azarte, the petitioner had sought cancellation of removal from an immigration judge.
Azarte, 394 F.3d at 1280. The immigration judge had denied cancellation but granted voluntary
departure. Id. The BIA affirmed the immigration judge’s decision and permitted thirty days’
voluntary departure. Id. Seven days prior to the expiration of the thirty day voluntary departure
period, the petitioners filed a motion to reopen with the BIA. Id. at 1280-81. The BIA denied
the motion to reopen stating that since the petitioners had not departed within the voluntary
departure period, they were not eligible for relief. Id. at 1281. The Ninth Circuit reversed,
holding that “in cases in which a motion to reopen is filed within the voluntary departure period
and a stay of removal or voluntary departure is requested, the voluntary departure period is tolled
during the period the BIA is considering the motion.” Azarte, 394 F.3d at 1289. The Ninth
Circuit reasoned that it would be “nonsensical” for Congress to provide an alien an opportunity
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to file a motion to reopen without also tolling the voluntary departure order. Id. at 1288-89.
While Azarte certainly presents a reasonable analysis, we do not believe that it is
necessary for us to decide its applicability in this circuit. The facts here are such that even if
Martinez-Espino’s voluntary departure period had been tolled, it still would have expired before
he filed his petition for review in this Court. We leave to another panel in a more appropriate
case the determination of whether this Circuit should adopt Azarte. Ultimately then, the question
we must address here is whether the circuit court has the power to extend Martinez-Espino’s
voluntary departure period, because at the time his original petition for review (No. 05-4076) was
filed with this Court on August 24, 2005, the original thirty day voluntary departure period had
expired – whether it was tolled during the pendency of his motion to reopen or not.
The Sixth Circuit squarely addressed that issue in Mullai v. Ashcroft, 385 F.3d 635 (6th
Cir. 2004), concluding that it lacked the authority to reinstate a BIA grant of a thirty-day period
for voluntary departure. Id. at 639. We found that the authority to grant voluntary departure is
vested by statute in the Attorney General, 8 § U.S.C. 1229c(a)(1), and that the text of the Illegal
Immigrant Reform and Immigrant Responsibility Act and 1996 (IIRIRA) includes “provisions
that preclude judicial review of the grant or denial of voluntary departure.” Mullai, 385 F.3d at
640. That statute provides: “No court shall have jurisdiction over an appeal from denial of a
request for an order of voluntary departure under subsection (b) of this section, nor shall any
court order a stay of an alien’s removal pending consideration of any claim with respect to
voluntary departure.” 8 U.S.C § 1229c(f). Additionally, 8 U.S.C. § 1252(a)(2)(B)(i) provides
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that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief
under . . . [8 U.S.C.] section 1229c [voluntary departure] . . . .” Thus, even if the Sixth Circuit
were to adopt the reasoning of the Ninth, Third, and Eighth Circuits, such a decision would not
help Martinez-Espino’s situation: his voluntary departure period had expired by the time he filed
his original petition for review in this Court, and this Court lacks the power to reinstate a period
of voluntary departure. Therefore, this Court reserves for future judgment the question of
Azarte’s application in this circuit.
Finally, we must consider the BIA’s denial of Martinez-Espino’s request for a new
voluntary departure date. As the United States correctly argues, Martinez-Espino’s effort to seek
a new voluntary departure date from the BIA was tantamount to a request to the BIA to sua
sponte reopen Martinez-Espino’s proceedings, because Martinez-Espino was already numerically
barred from filing a second motion to reopen. See 8 U.S.C. § 1229A(c)(7)(A) (“An alien may
file one motion to reopen proceedings under this section . . . .”) (emphasis added); 8 C.F.R. §
1003.2(c)(2). Because Martinez-Espino had exhausted his statutorily available appeals, the
decision of the BIA to reissue a decision with a new date is purely a discretionary decision and a
“measure of grace.” Firmansjah v. Ashcroft, 347 F.3d 625, 627 (7th Cir. 2003). This Court has
no jurisdiction to review such discretionary decisions. See 8 U.S.C. § 1252(a)(2)(B).]
III.
Martinez-Espino’s second and third grounds of appeal are that the BIA both used an
improper standard in analyzing his motion to reopen and improperly considered the evidence he
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presented as part of his motion to reopen. The denial of a motion to reopen is reviewed for abuse
of discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). This standard requires
this Court to “decide whether the denial of [the] motion to reopen . . . was made without a
rational explanation, inexplicably departed from established policies, or rested on an
impermissible basis such as invidious discrimination against a particular race or group.” Id.
(internal quotation marks and citations omitted). The Supreme Court has made clear that
reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or deny
such motions. I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). Because the BIA has such broad
discretion, a party seeking reopening or reconsideration bears a “heavy burden.” Id.
On this record, this Court is unable to find that the BIA abused its discretion in denying
the motion to reopen. In its decision on the motion to reopen, the BIA specifically discussed the
evidence of Kelly Martinez-Garcia’s health and educational problems. J.A. at 58. Some of this
evidence presented to the BIA as part of the motion to reopen was presented to the Immigration
Judge at the merits hearing on Martinez-Espino’s motion for cancellation of removal, or was
available to be presented at that time. J.A. at 76-82. In its decision on the motion to reopen, the
BIA specifically acknowledged that “evidence of medical problems was of record at the time of
the original hearing.” J.A. at 58. Furthermore, the BIA discussed the evidence Martinez-Espino
had submitted regarding the state of children’s health care in Mexico and concluded that “no
evidence has been submitted showing that adequate treatment, care, and therapy are unavailable
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in Mexico.” Id.2 The BIA provided a rational explanation for its decision that does not represent
an inexplicable departure from existing polices or decisions. Martinez-Espino has not met his
“heavy burden” in establishing that the BIA abused its discretion in his case.
IV.
Finally, Martinez-Espino argues that the BIA deprived him of his due process rights by
assigning his motion to reopen to a one-member panel. Martinez-Espino cites no authority for
the proposition that Fifth Amendment due process includes a constitutional right to a three-
member BIA panel, and this Court’s precedent strongly supports the contrary view. Cf. Ramaj v.
Gonzales, 466 F.3d 520, 526 (6th Cir. 2006) (“concluding that the BIA’s streamlining procedures
[which provide for summary affirmance without opinion by a single BIA member] do not
themselves alone violate an alien’s rights to due process” (quoting Denko v. I.N.S., 351 F.3d 717,
730 (6th Cir. 2003))). The regulation Martinez-Espino cites in support of his claim does not
guarantee a three-member BIA panel as a matter of right. It reads: “Panel decisions. Cases may
only be assigned for review by a three-member panel if the case presents one of these
circumstances . . . .” 8 C.F.R. § 1003.1(e)(6) (emphasis added). The regulation then lists a
2
Martinez-Espino argues that the BIA “denied [his] Fifth Amendment Due Process rights
by failing to consider the independent evidence [he] submitted with his Motion to Reopen
showing that there are ongoing problems with children’s health and education in Mexico.” Pet.
Brf. 8. However, the independent evidence submitted – the 2004 U.S. Department of State
Country Report on Human Rights Practices for Mexico – does not support Martinez-Espino’s
contention that treatment, care, and therapy for unhealthy children is “unavailable.” While the
report indeed indicates that “problems in children’s health and education remained,” J.A. at 165,
the BIA could nonetheless rationally conclude that children’s health care was not “unavailable.”
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variety of circumstances under which a three-member panel is appropriate, including “[t]he need
to review a clearly erroneous factual determination by an immigration judge . . . .” 8 C.F.R. §
1003.1(e)(6)(v). Martinez-Espino overstates the import of this regulation: while it allows the
BIA to assign only certain types of cases to three-member panels, it does not mandate such
assignment, and it certainly does not establish a constitutional right to the same. In any case,
Martinez-Espino has not established that the immigration’s judge factual determination was
“clearly erroneous.”
For the foregoing reasons, Manuel Martinez-Espino’s petitions for review of the BIA
orders in Case Nos. 05-4076 and 05-4453 are hereby DENIED.