Reynoso-Lopez v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-25-2004

Reynoso-Lopez v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-3278

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 PRECEDENTIAL John D. Williams, Esq.
Michael P. Lindemann, Esq.
UNITED STATES COURT OF Jocelyn L. Wright, Esq.
APPEALS FOR THE THIRD CIRCUIT Erica A. Franklin, Esq.
___________ United States Department of Justice
Office of Immigration Litigation
No. 02-3278 P.O. Box 878
___________ Ben Franklin Station
Washington, DC 20044

DEMETRIO REYNOSO-LOPEZ, Counsel for Respondent

Petitioner ___________
v.
JOHN ASHCROFT, Attorney General of OPINION OF THE COURT
the United States of America, ___________

Respondent
FUENTES, Circuit Judge.
____________
The principal issue presented by
On Petition for Review of an Order of this appeal is whether this Court has the
the Board of Immigration Appeals authority to reinstate a grant of voluntary
(INS No. A73-115-357) departure and extend the departure date
____________ previously ordered by an Immigration
Judge (“IJ”) and affirmed by the Board of
Submitted Under Third Circuit LAR Immigration Appeals (“BIA”). In this
34.1(a) June 2, 2003 case, the petitioner, Demetrio Reynoso-
Lopez (hereinafter “Reynoso”), seeks
Before: BARRY, FUENTES, and review of the BIA’s decision affirming the
ROSENN, Circuit Judges. IJ’s denial of his application for asylum
and withholding of removal under the
(Filed: May 25, 2004) Immigration and Nationality Act (“INA”),
8 U.S.C. §§ 1158(a) and 1253(h), and
Michael Morrone, Esq. protection under the Convention Against
899 South College Mall Road Torture (“CAT”). In the alternative,
Suite 252 Reynoso asks us to reinstate the now
Bloomington, IN 27201 expired thirty-day voluntary departure
order granted to him by the IJ and
Counsel for Petitioner reinstated by the BIA under 8 U.S.C. §
1229c(b)(1).

1
 According to Reynoso, he failed to admitted or paroled.
depart voluntarily because he wanted to
In removal proceedings on January
stay in this country to appeal the BIA’s
28, 1999, Reynoso conceded removability
decision of his request for asylum. He
and requested reconsideration of his
contends that, as a matter of due process,
previous petition for asylum. On January
we have jurisdiction to reinstate the
20, 2000, the IJ denied all relief, but
expired voluntary departure date in the
granted Reynoso voluntary departure until
event that we affirm the BIA’s denial of
March 6, 2000. On July 23, 2002, the BIA
his asylum claim. We disagree. Based on
affirmed the IJ without opinion. The BIA
the plain language of the immigration
also granted Reynoso voluntary departure
statutes and regulations, which clearly
within thirty days of the date of its order.
grant the power to reinstate or extend
voluntary departure solely to the Attorney Reynoso now appeals the decision
General and his delegates at the of the BIA. He raises two primary issues
Immigration and Naturalization Service on appeal: (1) whether the BIA erred in
(“INS”), we conclude that we lack the affirming the IJ’s denial of his petition for
jurisdictional authority to reinstate or asylum; and (2) whether this Court has the
extend a voluntary departure order. jurisdictional authority to reinstate an
expired grant of voluntary departure.
I.
We review the IJ’s decision to grant
Reynoso is a twenty-seven year old
or deny asylum for abuse of discretion.
native of Guatemala. He claims that when
8 U.S.C. § 1252(f)(4)(D). Thus, our
he was ten years old, he was held in
review of the IJ’s factual findings, which
confinement by Guatemalan guerrillas. He
were adopted by the BIA, is deferential.
claims to have escaped to Mexico, where
Factual findings, such as credibility
he lived for the next six years. In 1993, at
determinations, are “conclusive unless any
the age of sixteen, Reynoso entered the
reasonable adjudicator would be
United States without a visa.1 On March
compelled to conclude to the contrary.” 8
19, 1994, he applied for asylum,
U.S.C. § 1252(b)(4)(B). We must
withholding of removal, and protection
establish whether the BIA’s factual
under the CAT. In the alternative, he
de te r mina tions are suppor te d by
requested voluntary departure. On
substantial evidence. See Senathirajah v.
October 19, 1998, the INS charged him
INS, 157 F.3d 210, 216 (3d Cir. 1998).
with being removable for entering the
This standard is “even more deferential”
United States without having been
than the “clearly erroneous” standard, and
requires us to sustain an adverse credibility
1
Although the briefs describe him as determination “unless . . . no reasonable
a twenty-three year old (Pet. Br. at 2), if he person” would have found the applicant
was sixteen years old in 1993, he is incredible. See Concrete Pipe & Products
approximately twenty-seven years old now.

2
of CA v. Construction Laborers Pension encampment. He testified that about two
Trust for Southern CA, 508 U.S. 602, 623 weeks after his capture, the family, which
(1993). “Adverse credibility findings are apparently included both parents and two
afforded substantial deference so long as sisters, escaped the encampment. In the
the findings are supported by specific process, Reynoso became separated from
cogent reasons.” Gao v. Ashcroft, 299 his family and managed to walk for three
F.3d 266, 276 (3d Cir. 2002) (citation days to Chiapas, Mexico, where he stayed
omitted). and worked for three years. Thereafter,
Reynoso moved to Mexico City, where he
lived for another three years, working in a
II.
restaurant. At the age of 16, Reynoso left
In regard to Reynoso’s appeal from Mexico City and crossed into the United
the denial of his application for asylum, States.
the IJ, after assessing Reynoso’s
Reynoso’s parents, with whom he is
credibility, determined that Reynoso
in regular contact, now live in Cumil,
“failed to establish a well-founded fear of
Guatemala, a town approximately five
persecution as is necessary in order to be
hours from Quilco on foot. None of them
statutorily eligible for asylum.” Because
knows the whereabouts of his younger
Reynoso failed to establish eligibility for
sisters. Although formal resistance to the
asylum, he necessarily failed to meet the
Guatemalan government has ended,
more stringent standard for showing a
Reynoso stated that he believes former
“clear probability of persecution” to be
guerillas are still active in Guatemala. He
eligible for withholding of deportation.
testified that, if he returned, he feared
INS v. Stevic, 467 U.S. 407, 420 n.13
persecution by these guerillas for failing to
(1984). Similarly, based on the
join their resistance in 1987. The basis for
respondent’s testimony and the evidence
this assertion was a list that he claimed the
of the record, he did not offer sufficient
guerillas have kept which contains names
evidence for withholding of removal under
of people whom they plan to target for
the CAT. We have carefully reviewed the
retribution. He believed that both he and
entire record and find no basis for
his father were on this list. He also stated
disturbing the IJ’s thorough and well-
that he had acquaintances who, after
reasoned oral opinion. We add only the
returning to Guatemala in 1997, were
following to underscore our agreement
killed by former guerillas seeking revenge.
with that decision.
In addition, Reynoso testified that his
At the hearing before the IJ, parents’ crops had been destroyed,
Reynoso testified that, at the age of 10, he ostensibly by former guerillas.
and his family were captured by a band of
In arriving at an adverse credibility
guerillas in Guatemala and taken from
finding, the IJ pointed to several
their home town of Quilco to the guerillas’
deficiencies in Reynoso’s testimony.

3
Specifically, the IJ found questionable particularly believable. The IJ accordingly
Reynoso’s testimony relating to (1) a “list” concluded that Reynoso had not met his
that the guerillas created in 1987; (2) his burden to establish a well-founded fear of
belief that guerillas are still active in persecution if returned to Guatemala.
Guatemala; (3) the guerillas’ capture of the
We find no abuse of discretion in
entire family, including his two younger
any of the IJ’s credibility determinations.
sisters; and (4) his escape at the age of 10
We accordingly conclude that substantial
and subsequent journey through Mexico
evidence supports the IJ’s determination
and into the United States.
that Reynoso failed to support his asylum,
The IJ found this testimony withholding of deportation and CAT
incredible for several reasons. First, he claims with credible evidence.
doubted that Reynoso could have escaped
III.
the guerilla camp by himself on foot and
then supported himself in Mexico from A.
ages ten to sixteen. Second, he did not
We now turn to the question of
find that Reynoso’s account provided a
whether we can reinstate Reynoso’s
plausible basis for fearing a threat by
voluntary departure date. Under certain
former guerillas. Third, he took judicial
circumstances, the Attorney General will
notice of changed country conditions in
grant an alien voluntary departure as an
Guatemala, finding that the guerillas had
alternative to deportation. This allows the
disbanded. Therefore, the IJ held that
alien to depart the United States at his or
Reynoso had failed to show either past
her own expense without being subject to
persecution or a well-founded fear of
the penalties and restrictions that
future persecution, as is required to
deportation imposes. An alien who is
establish statutory eligibility for asylum.
deported may not reenter the United States
Moreover, the IJ found that any harm
for ten years unless the Attorney General
Reynoso suffered was not “on account of”
permits it. However, an alien who departs
any of the five grounds enumerated by the
voluntarily is not bound by this restriction
INA (i.e., race, religion, nationality,
and may reenter the United States once he
membership in a particular social group, or
or she has obtained proper documentation.
political opinion). Instead, the guerillas
See Ramsay v. INS, 14 F.3d 206, 211 n.7
mistreated his family in an attempt to
(4th Cir. 1994). As an alternative to
recruit the family to join their rebellion.
granting his petition for asylum, Reynoso
The IJ analyzed each of
requests that we extend the thirty-day
these areas of Reynoso’s testimony and
voluntary departure order granted him by
supplied specific reasons for his adverse
the IJ and reinstated by the BIA. Before
credibility findings. In particular, the IJ
his voluntary departure period had expired,
found that Reynoso’s testimony was
Reynoso timely appealed to this Court.
exaggerated, embellished, and not
However, his departure period ended

4
before appellate review of his asylum authority for appellate courts to reinstate or
application was completed. extend the voluntary departure period
prescribed by an IJ or the BIA, this Court
Reynoso’s request raises an issue of
lacks jurisdiction to reinstate Reynoso’s
first impression in our Circuit: whether we
voluntary departure period.
have the authority to extend a voluntary
departure order pending our review of a
denial of a request for asylum. Several
other courts of appeals have considered B.
this question and are divided as to whether
In 1996, Congress passed the Illegal
this authority exists under the current INS
Immigration Reform and Immigrant
regulations. These regulations state that
Responsibility Act (“IIRIRA”). Under the
the “[a]uthority to extend the time within
plain language of the INA, as amended by
which to depart voluntarily specified
IIRIRA, the authority to reinstate or extend
initially by an immigration judge or the
voluntary departure falls solely within the
Board is only within the jurisdiction of the
discretion of the Attorney General and his
district director, the Deputy Executive
delegates at the INS. These delegates,
Associate Commissioner for Detention and
including the IJ and BIA, granted Reynoso
Removal, or the Director of the Office of
a thirty-day voluntary departure period.
Juvenile Affairs. . . .” 8 C.F.R. §
Any extension of this time period would
1240.26(f). The Government argues that
clearly conflict with the explicit language
we do not have jurisdiction to extend the
of IIRIRA, which provides that only the
voluntary departure period because the
district director may determine the time
language of the regulation makes clear that
period for voluntary departure.
the power to grant, extend or reinstate
voluntary departure is within the sole The Immigration Regulations, as
authority of the Attorney General and his amended by IIRIRA, state:
delegates at the INS and Executive Office
Authority to extend the time within which
f o r I m m igration Rev iew, w hic h
to depart voluntarily specified initially by
encompasses the IJs and the BIA. Resp.
an immigration judge or the Board is only
Br. at 28-30. Reynoso counters that due
within the jurisdiction of the district
process requires that this Court have the
director, the Deputy Executive Associate
power to extend voluntary departure, or
Commissioner for Detention and Removal,
else his decision to appeal the BIA’s denial
or the Director of the Office of Juvenile
of his asylum application will have caused
Affairs. An immigration judge or the
him to lose “the privilege of voluntary
Board may reinstate voluntary departure in
departure.” Pet. Br. at 16 (quoting Matter
a removal proceeding that has been
of Villeagas-Aguirre, 13 I. & N. Dec. 139
reopened for a purpose other than solely
(BIA 1969)). We hold that because
making an application for voluntary
Congress has not provided statutory
departure if reopening was granted prior to

5
the expiration of the original period of designated role in this process of setting
voluntary departure. the deadline for departure.”). In granting
the authority to set voluntary departure
dates to the executive branch, it is fair to
8 C.F.R. § 1240.26(f) (emphasis added). say that Congress intended the authority to
be exclusive.
Our inability to grant Reynoso the
Therefore, under IIRIRA, the
relief he seeks does not leave him without
executive branch, not the judiciary, is
a remedy. Under IIRIRA, Reynoso may
given the sole authority to determine when
apply for reinstatement or extension of
an alien must depart. Further, IIRIRA
voluntary departure directly to the district
specifically limits the role of the courts as
director. See 8 C.F.R. § 1244.2(f)(2);
to when an alien, under an order of
Castaneda, 23 F.3d at 1582. Seeking relief
voluntary departure, must leave the
from the district director is, in fact, the
country. Id. For example, under 8 U.S.C.
procedure that Congress intended for a
§ 1229c(f), “[n]o court shall have
petitioner such as Reynoso to follow.
jurisdiction over an appeal from denial of
Indeed, in this case, the BIA informed
a request for an order of voluntary
Reynoso that any extension of the
departure . . . , nor shall any court order a voluntary departure time period “may be
stay of an alien’s removal pending granted by the district director,” thus
consideration of any claim with respect to putting him on notice that any relief from
voluntary departure.” Additionally, “no the voluntary departure set by the BIA
court shall have jurisdiction to review . . . would have to be granted administratively,
any judgment regarding the granting of not judicially. BIA Order at 2. Further,
relief” under section 1229c. 8 U.S.C. § this statement by the BIA shows that the
1252(a)(2)(B)(i). Reynoso is not BIA has interpreted the INA as giving the
appealing a denial of a request for district director sole authority to set and
voluntary departure or a claim with respect extend voluntary departure periods. Even
to voluntary departure. Thus, these if one were to argue that the statutory
provisions do not divest this Court of language were unclear, we would still be
jurisdiction in this case. However, they do required to give deference to the BIA’s
underscore the fact that, in enacting interpretation of IIRIRA. Chevron U.S.A.,
IIRIRA, Congress intended to vest the Inc. v. Natural Resources Defense
right to set deadlines for an alien’s Council, Inc., 467 U.S. 837 (1984); see
voluntary departure solely with the also Zazueta-Carrillo, 322 F.3d at 1173
executive branch, and not the courts. See (same); see also Faddoul v. INS, 37 F.3d
Zazueta-Carrillo v. Ashcroft, 322 F.3d 185, 192, 191-93 (5th Cir. 1995) (stating
1166, 1172 (9th Cir. 2003) (“Neither the that there was “[n]o reason to augment the
statute nor the regulations give courts any administrative remedy which the alien had

6
neglected,” and denying reinstatement of v. INS, the Eleventh Circuit stressed the
voluntary departure because the petitioner fact that Congress has not empowered the
did not apply to the BIA or district director courts of appeals to reinstate voluntary
for an extension and waited until the last departure orders that have expired. 83
day of his departure period before filing F.3d 353, 357 (11th Cir. 1996). The Court
his appeal (citing Farzad v. INS, 808 F.2d held that absent explicit Congressional
1071, 1072 (5th Cir. 1987))); Alsheweikh empowerment to act, an appellate court
v. INS 990 F.2d 1025, 1028 (8th Cir. lacks the jurisdictional authority to extend
1993) (declining consideration of the or reinstate voluntary departure. Similarly,
petitioner’s application for reinstatement in Castaneda v. INS, the Tenth Circuit held
of voluntarily departure, and stating that that it lacked the authority to review a
the petitioner “may request this relief from request for reinstatement of a voluntary
the INS”). departure order, stating that “none of the
pertinent statutes . . . provide any basis
Further, under IIRIRA, appellate
whatsoever for this court to assume
courts retain jurisdiction to review an
authority for affording the discretionary,
alien’s appeal after he voluntarily departs.
administrative relief sought by petitioner.”
8 U.C.C. § 1252(b)(3)(B). This remedy
23 F.3d 1576, 1580 (10th Cir. 1994). The
was not available in the pre-IIRIRA
Tenth Circuit went on to reiterate that “[i]f
regime because, under the former INA, an
an act can be performed by a [federal]
appellate court lost jurisdiction once a
court, it is because it was permitted and
petitioner left the country. See 8 U.S.C. §
not because it was not prohibited by
1105a(c) (1994). Thus, before IIRIRA, an
Congress. Federal courts operate only in
alien was forced to choose between
the presence rather than the absence of
exercising his right to appeal and taking
statutory authority.” Id. at 1580 (internal
advantage of voluntary departure. Because
citation and quotations omitted).
IIRIRA eliminates this concern, Reynoso
In Kaczmarczyk v. INS, the
was free to voluntarily depart and still
Seventh Circuit affirmed an order of
pursue a petition for review, preserving his
deportation and held that the Court lacked
appellate rights. See Zazueta-Carrillo, 322
jurisdiction to reinstate or extend voluntary
F.3d at 1171; Moore v. Ashcroft, 251 F.3d
departure, thus requiring the alien to file a
919 (11th Cir. 2001); Tapia Garcia v. INS,
motion with the INS district director
237 F.3d 1216 (10th Cir. 2001).
requesting reinstatement of voluntary
departure. 933 F.2d 588, 598 (7th Cir.
C. 1991), cert. denied, 502 U.S. 981 (1991).
The Seventh Circuit did note its concern
A number of circuits addressing the
that the INS might use its discretionary
voluntary departure issue have similarly
authority to discourage petitioners from
found that they lack jurisdiction to extend
seeking judicial review. The Court stated
a voluntary departure order. In Nkacoang
that “[d]eportable aliens should not be

7
faced with the choice between enjoying the in the context of IIRIRA. Examining the
voluntary departure privilege and securing relevant imm igratio n statutes and
judicial review of Board determinations;” regulations post-IIRIRA, the Ninth Circuit
thus “[s]hould it come to our attention that held that appellate courts lack the authority
the INS is wielding its discretion to to extend the time period for voluntary
withhold voluntary departure [in order] to departure, and that aliens granted
deter applicants from seeking review of voluntary departure must continue their
BIA decisions, our scrutiny of that appeals from abroad. Id.
discretionary exercise might expand.” Id.
While other circuits have taken the
(citation omitted). However, as discussed
opposite stance, holding that they have
above, the passage of IIRIRA has
authority to reinstate voluntary departure,
eliminated this concern as aliens may now
these holdings predate IIRIRA. For
pursue their appeals from abroad, avoiding
example, the Fourth Circuit in Ramsay v.
their having to choose between exercising
INS held that an appellate court should
their right to appeal and taking voluntary
extend voluntary departure when (1) it
departure.
finds that the INS has used its discretion to
The Ninth Circuit also addressed withhold voluntary departure in order to
this issue in Zazueta-Carrillo v. Ashcroft, deter applicants from seeking judicial
in which it overruled its previous decision review of BIA decisions; and (2) the INS
in Contreras-Aragon v. INS and held that, does not indicate that it will present the
in light of IIRIRA, appellate courts lack district director with any other reason for
authority to reinstate voluntary departure. refusing reinstatement. 14 F.3d at 213
322 F.3d at 1172. In Contreras-Aragon v. (internal quotation marks and citations
INS, the Ninth Circuit had held that when omitted). Similarly, in Umanzor-Alvarado
an appeals court otherwise has jurisdiction v. INS, the First Circuit held that it had the
over a final order of deportation it may authority to extend voluntary departure
reinstate a grant of voluntary departure when the INS offered no evidence
originally entered by the IJ and BIA. 852 suggesting that the alien had become
F.2d 1088, 1092-93 (9th Cir. 1988). After ineligible for departure in the interim
IIRIRA, however, the Ninth Circuit between the BIA’s opinion and the
reconsidered its decision in Contreras- appellate court’s opinion. 896 F.2d 14, 16
Aragon and concluded that a petitioner’s (1st Cir. 1990); see also Aiyadurai v. INS,
voluntary departure period begins when an 683 F.2d 1195, 1201 (8th Cir. 1982)
IJ or the BIA enters its order granting (restoring voluntary departure status
voluntary departure. See Zazueta-Carrillo, despite the fact that this issue was not
322 F.3d at 1168. The Zazueta-Carrillo raised on appeal, and noting that the
Court examined the rationales on which petitioner “qualified for voluntary status at
Contreras-Aragon relied, and concluded the . . . deportation hearing and there is no
that these rationales were no longer valid indication in the record that she does not

8
continue to qualify”). departure, as the INS does not bear the
burden of showing an alien to be ineligible
The arguments presented by the
for voluntary departure. On the contrary,
Fourth and First Circuits, in pre-IIRIRA
“it is the alien who bears the burden of
decisions, are unpersuasive in light of the
proving statutory eligibility for this form
plain language of the INA, as amended by
of relief and demonstrating that it is
IIRIRA. As discussed above, the Fourth
warranted.” Castaneda, 23 F.3d at 1582
Circuit’s concern that the INS may use its
(citing Rivera-Zurita v. INS, 946 F.2d 118,
discretion over voluntary departure in
120 (10th Cir. 1991) (internal quotations
order to deter judicial review of BIA
omitted)).
decisions was eliminated by IIRIRA’s
provision that appellate courts retain Finally, the policy considerations
jurisdiction over an alien’s appeal after he surrounding voluntary departure support
has departed the country. our conclusion that Congress did not
intend for appellate courts to have
authority to extend voluntary departure
In addition, both the Fourth and
orders. These considerations were stated
First Circuits conclude that there is no
by the Ninth Circuit as follows:
reason for an appellate court not to toll the
initial departure period granted by an IJ or The purpose of a uthorizing
the BIA when the INS has offered no voluntary departure in lieu of
evidence to suggest that the alien had deportation is to effect the alien’s
become ineligible for voluntary departure prompt departure without further
during the course of the appeal. See trouble to the Service. Both the
Ramsay v. INS, 14 F.3d at 213; Umanzor- aliens and the Service benefit
Alvarado v. INS, 896 F.2d at 16. This thereby. But if the alien does not
approach, however, conflicts with the depart promptly, so that the Service
specific procedures provided for in the becomes involved in further and
statute. Whether the relief sought by more costly procedures by his
Reynoso in this appeal is characterized as attempts to continue his illegal stay
a “reinstatement and extension” of the here, the original benefit to the
voluntary departure period or as a Service is lost. And if, after years
“tolling,” the effect is the same. See of delay, he is again rewarded with
Zazueta-Carrillo, 322 F.3d at 1176 the opportunity for voluntary
(Berzon, J., concurring). The INA is clear departure which he has previously
that this type of relief may only be sought spurned, what incentive is there for
from the district director. Further, as the any alien similarly circumstanced to
Tenth Circuit points out, the approach of depart promptly when first given
the Ramsay and Umanzor-Alvarado Courts the opportunity?
misplaces the burden of persuasion in a
petition for extension of voluntary

9
See Zazueta-Carrillo, 322 F.3d at 1173
(quoting Ballenilla-Gonzalez v. INS, 546
F.2d 515, 521 (2d Cir. 1976)). If voluntary
departure periods could be extended until
after the completion of an appeal, it would
discourage prompt departure and even
encourage frivolous appeals in an attempt
to continue extending an alien’s departure
date. Id. at 1173-74. This result would
conflict with the INS’ goal of having
expeditious removal proceedings. This
goal underlies voluntary departure, and is
reflected in the clear procedures for
extending voluntary departure set out by
Congress in IIRIRA.

IV.
The BIA’s order affirming the IJ’s
denial of Reynoso’s application for
asylum, withholding of removal, and
protection under the Convention Against
Torture is affirmed. Under the INA, we
lack jurisdiction to reinstate the IJ’s grant
of voluntary departure and to extend
Reynoso’s date for departure.

10