Jupiter v. Ashcroft

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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