Khalil v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1934

SAID GUIRGUIS KHALIL,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Christopher W. Drinan for petitioner.

Daniel Meron, Civil Division, with whom Peter D. Keisler,
Assistant Attorney General, Civil Division, and David V. Bernal and
M. Jocelyn Lopez Wright, Assistant Directors, Office of Immigration
Litigation, were on brief, for respondent.

June 3, 2004
 LYNCH, Circuit Judge. On July 24, 2003, this court

affirmed a September 2002 decision by the Board of Immigration

Appeals (BIA) denying asylum and withholding of deportation to Said

Guirguis Khalil. Khalil v. Ashcroft, 337 F.3d 50, 54, 56 (1st Cir.

2003). The BIA had granted Khalil a thirty-day period of voluntary

departure, which expired while his petition for review was pending

before this court. We, as a matter of grace, reinstated that

thirty-day departure period so that Khalil could leave the country

voluntarily without incurring the penalties for forcible removal.

Id. at 56. In doing so, we applied the rule of Umanzor-Alvarado v.

INS, 896 F.2d 14 (1st Cir. 1990) (Breyer, J.), which held that

courts have the inherent equitable authority to decide on a case-

by-case basis to reinstate the period of voluntary departure

earlier granted by the BIA as part of their review of petitions

challenging BIA actions. Id. at 16. The penalties for failing to

depart within the designated voluntary departure period are

significant. Violators may be fined $1,000 to $5,000 and are

ineligible for ten years for further grants of voluntary departure,

cancellation of removal, adjustment of status, change of

nonimmigrant classification, or creation of a record of lawful

admission for permanent residence. 8 U.S.C. § 1229c(d). In

addition, if a default removal order has been entered, violators

may be deported and, accordingly, be prevented from returning to

the United States without the prior consent of the Attorney General

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for either five or ten years, depending on the circumstances.

See id. § 1182(a)(9)(A).

Khalil did not leave within the thirty days he had been

given by this court. Instead, Khalil waited (without seeking an

extension of that thirty-day period) to see how this court would

decide the instant case: a second petition for review, filed

earlier on July 2, 2003, from the BIA's denial of his separate

motion to reopen for adjustment of status. The BIA had denied

Khalil's petition on the ground that he was not eligible for

adjustment of status because he had overstayed the voluntary

departure period originally granted by the BIA in September 2002.

Khalil did not seek any interim relief from this court pending

review of his second petition. In this petition, he argues that

our earlier reinstatement of the privilege of voluntary departure

for a limited period operates retroactively and means that the

BIA's basis for denying his motion to reopen is now wrong.

We affirm the BIA's decision and hold that this court's

reinstatement of the privilege of voluntary departure did not have

retroactive effect and thus does not provide a basis to overturn

the BIA's denial of Khalil's motion to reopen.

We also outline, for the purpose of alerting aliens and

the bar to the issue, a broader argument that the respondent chose

to make in this case: that federal courts lack the power to

reinstate the privilege of voluntary departure as part of their

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review of petitions challenging BIA actions and, in the

alternative, that if the courts have such power, it is restricted

to situations in which a petitioner moved for a stay from the court

before the voluntary departure period granted by the agency

expired. The respondent, recognizing that Umanzor-

Alvarado conflicts with its position, identifies changes in the

statutory scheme and asks us to overrule that case. We reserve the

issue of the bounds of this court's authority for another case

where resolution of that issue is required.

I.

On September 23, 2002, the BIA affirmed an immigration

judge's order denying Khalil asylum and withholding of deportation,

and gave Khalil thirty days from the date of the order to

voluntarily depart. Khalil had claimed religious persecution as a

Coptic Christian in Egypt. The BIA's order included a written

notice outlining the statutory penalties for failing to depart

within the allotted time. The BIA also entered a default order of

removal to Egypt if Khalil failed to depart on time.

Khalil did not depart, but appealed the BIA's order to

this court on October 22, 2002. He asked the Immigration and

Naturalization Service (INS)1 to extend his period of voluntary

1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
(BICE). For simplicity, we refer to the agency throughout this
opinion as the INS.

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departure pending our review. The INS denied his request and set

a new January 9, 2003 departure date.

On November 26, 2002, he filed a separate motion with the

BIA to reopen proceedings in order to adjust his status based on an

immigrant visa petition filed by his employer and approved by the

INS on November 18. See 8 U.S.C. § 1255(i)(1) (allowing adjustment

of status based on such a visa petition, provided certain

conditions are fulfilled). Khalil did not raise in that motion the

possible effect of an order from this court reinstating the period

of voluntary departure.

The January 9 deadline passed, but Khalil did not leave.

Nor did he file with this court a motion to stay removal or toll

the running of the period for voluntary departure.2 We note,

though, that the INS had neither detained Khalil nor scheduled him

for removal, so there was no event (apart from the passing of the

January 9 deadline) that would have prompted Khalil to seek a stay

from the court.

The BIA denied the motion to reopen on June 2, 2003 on

the ground that Khalil was statutorily ineligible to apply for

adjustment of status because he had overstayed the January 9

2
To qualify for a stay of removal, a petitioner must
demonstrate (1) likelihood of success on the merits of the
underlying appeal; (2) potential for irreparable harm absent the
stay; (3) that the balance of interests weighs in favor of granting
the stay; and (4) that the stay would not disserve the public
interest. See Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003).

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deadline for voluntary departure. See 8 U.S.C. § 1229c(d). On

July 2, 2003, Khalil filed the instant petition for review of that

denial.

Meanwhile, Khalil's appeal on his first petition was

still pending in this court. On July 24, 2003, this court affirmed

the BIA's denial of asylum and withholding of deportation and

reinstated the thirty-day period of voluntary departure originally

granted by the BIA, citing Yatskin v. INS, 255 F.3d 5, 11 (1st Cir.

2001). Khalil, 337 F.3d at 56. The panel was not made aware of

Khalil's expired January 9, 2003 departure deadline.3

Mandate issued on October 23, 2003 without the respondent

having petitioned for rehearing by the panel or en banc to

challenge the reinstatement order.

II.

On appeal from the BIA's denial of his motion to reopen,

Khalil does not contest that if he had overstayed his period of

voluntary departure, he would in fact be statutorily ineligible for

adjustment of status under 8 U.S.C. § 1229c(d), and his motion to

reopen would have been properly denied. Instead, he argues that he

did not overstay his departure period because this court's July 24,

2003 reinstatement of the voluntary departure period retroactively

3
Khalil did not request reinstatement of voluntary
departure in that appeal, and therefore the respondent had no
occasion to argue that the court lacked the power to grant such
reinstatement.

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operated to extend his period of departure beyond January 9, 2003.

Accordingly, he urges that the BIA's decision be vacated and

remanded with instructions to treat him as statutorily eligible for

adjustment of status or, in the alternative, to consider the effect

of this court's reinstatement of voluntary departure.

As the respondent correctly points out, Khalil did not

raise the possible effect of any reinstatement order from this

court with the BIA in his motion to reopen. Nor did he return to

the BIA once our reinstatement order was issued. As a result, he

has likely waived the issue. Nonetheless, we reach the issue in

order to settle the question he raises.

We reject Khalil's argument. Ordinarily, grants of

equitable relief apply prospectively rather than retroactively.

That is why, for example, plaintiffs must show a need for

prospective relief in order to obtain an injunction. See Lopez v.

Garriga, 917 F.2d 63, 67-68 (1st Cir. 1990). Khalil has not cited

any authority, or even any reason, for viewing the reinstatement by

a court of appeals of a limited period for voluntary departure any

differently. This court's reinstatement of voluntary departure was

not intended to apply retroactively. Nor should it be understood

that way: Black's Law Dictionary defines "reinstate" as "to place

again in a former state or position; to restore." Black's Law

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Dictionary at 1290 (7th ed. 1999). We were restarting the clock on

a period that had already run.4

The reinstatement of the privilege of voluntary

departure, which operates prospectively, gives a petitioner an

opportunity, after taking his appeal, to depart at his own expense

to a country of his own choosing without facing the adverse

consequences of deportation. See 8 U.S.C. § 1182(a)(9)(A)

(explaining those consequences). It does not retroactively nullify

the fact that a petitioner overstayed his original period of

voluntary departure. Khalil was statutorily ineligible for

adjustment of status at the time of the BIA's decision and remains

so today.

The respondent raises questions about whether a

reinstated period of voluntary departure begins running from the

date of this court's decision or from the issuance of mandate and

whether the period is stayed if the alien seeks review in the

Supreme Court.5 We need not -- and do not -- address those

questions today because, under any interpretation, it is clear that

Khalil has overstayed and abused the time he was given by this

court, and so has again lost the privilege of voluntary departure.

4
We further note that adoption of Khalil's position would
obviously undercut the finality of decisions by the BIA and this
court.
5
We held in Umanzor-Alvarado that the period runs from the
date that this court's mandate issues. 896 F.2d at 16. We have
not since revisited that question.

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 III.

Although this opinion could end there, we think it better

to note but not decide two challenges raised by the respondent to

this court's authority to reinstate voluntary departure in its

decision on a petition for review. This discussion is meant simply

to outline some of the relevant arguments; it should not be

construed as a prediction as to how the questions raised by the

respondent should be answered.

The respondent first asserts, in the broader of its two

challenges, that this court lacks the authority ever to stay or

reinstate voluntary departure because the respondent reads the

current version of the Immigration and Nationality Act (INA) as

vesting such authority solely in the INS. Fourteen years ago,

under a different version of the INA, this court rejected that

argument, holding that we may reinstate voluntary departure as part

of our inherent equitable authority to order the appropriate remedy

in a case before us. Id.

Six years later, in 1996, Congress passed the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA). Pub.

L. No. 104-208, 110 Stat. 3009-546 (1996). The IIRIRA included a

series of amendments to the INA, some of which limited the courts'

review of various discretionary decisions by the Attorney General,

see Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,

485 (1999), but none of which expressly addressed the power of the

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courts of appeals, as part of their review of petitions properly

before them, to reinstate periods of voluntary departure previously

granted by the BIA.

The respondent argues that the IIRIRA undermined the

reasoning behind Umanzor-Alvarado and requires us to overturn that

case. First, the respondent contends, Umanzor-Alvarado was

motivated primarily by the concern that absent an order reinstating

voluntary departure after review, aliens would be forced to choose

between seeking judicial review and leaving within the time

allotted for voluntary departure. That was because the pre-IIRIRA

version of the INA barred courts from reviewing removal orders if

the alien in question had departed the country. 8 U.S.C. §

1105a(c) (1994) (repealed). The respondent points out, however,

that the IIRIRA has eliminated that provision, thus permitting an

alien who has voluntarily departed or who has been deported to

continue his appeal.

Second, the respondent points to 8 U.S.C. § 1229c(b)(2),

which provides that "[p]ermission to depart voluntarily under this

subsection shall not be valid for a period exceeding 60 days," and

argues that judicial reinstatement of voluntary departure will

often impermissibly extend the period beyond this statutory limit.

The respondent also relies on 8 C.F.R. § 1240.26(f), which states

that "[a]uthority to extend the time within which to depart

voluntarily specified initially by an immigration judge or the

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Board is only within the jurisdiction of the district director."

That statute and that regulation, however, both describe the

authority of the Attorney General, not that of the courts. See 8

U.S.C. § 1229c(b) (describing the circumstances in which "[t]he

Attorney General may permit an alien voluntarily to depart the

United States"); 8 C.F.R. § 1240.26 (regulation labeled as

"Voluntary departure -- authority of the Executive Office for

Immigration Review"). The provisions that describe the authority

of the courts provide instead that "[j]udicial review of a final

order of removal . . . is governed only by chapter 158 of Title

28." 8 U.S.C. § 1252(a)(1). In turn, chapter 158 of Title 28

provides that "[t]he filing of the petition to review does not of

itself stay or suspend the operation of the order of the agency,

but the court of appeals in its discretion may restrain or suspend,

in whole or in part, the operation of the order pending the final

hearing and determination of the petition." 28 U.S.C. § 2349(b)

(emphasis added).

The respondent's broader challenge has been rejected by

two circuits, see Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.

2003); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003)

(adopting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175-78 (9th

Cir. 2003) (Berzon, J., concurring)), and accepted by one,

see Reynoso-Lopez v. Ashcroft, No. 02-3278 (3d Cir. May 25, 2004).

Both circuits that have rejected the respondent's argument have

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expressed the concern that, particularly in asylum cases, aliens

who voluntarily depart may be returning to home countries where

they are unsafe or, even if safe, will not be allowed to return to

the United States should they be successful on judicial review.

See Nwakanma, 352 F.3d at 327; Zazueta-Carrillo, 322 F.3d at 1176-

77. While aliens in these situations may formally retain their

right to appeal under the post-IIRIRA statute after leaving this

country, their purpose in seeking an appeal is arguably thwarted.

See Zazueta-Carrillo, 322 F.3d at 1177. Those two courts concluded

that although court-ordered stays of voluntary departure delay

departure and may impose costs on the government, such stays are

necessary in some cases to ensure the right to meaningful judicial

review.

Additionally, those two courts rejected the respondent's

argument under 8 U.S.C. § 1229c(b)(2) and 8 C.F.R. § 1240.26(f) on

the ground that a stay or reinstatement of voluntary departure did

not "extend" the period for departure, but instead merely restarted

the clock for the running of the departure period designated by the

agency. See Nwakanma, 352 F.3d at 327; Zazueta-Carrillo, 322 F.3d

at 1176.

Perhaps recognizing these concerns, the respondent

offered a second, more limited challenge to the courts' authority

to reinstate voluntary departure at oral argument. The respondent

contends that even assuming (without conceding) that courts have

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the power, either by statute or inherently, to reinstate voluntary

departure when they decide a petition for review, they may do so

only when the petitioner filed a motion with the court before the

departure period expired to stay removal or to toll the running of

the period of voluntary departure. The Ninth Circuit recently

adopted this position in Garcia v. Ashcroft, No. 02-71630 (9th Cir.

May 27, 2004). The respondent further argues that the fact that a

petitioner has not been detained or scheduled for deportation does

not excuse the alien's failure to file such a motion. This policy,

the respondent argues, is necessary to ensure that the court has

the opportunity to determine whether the traditional four-part test

for a stay, which requires, inter alia, a showing of a substantial

likelihood of success on the merits of the underlying petition, has

been met. See Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003).

If voluntary departure can be stayed or reinstated without such a

showing, the respondent warns, petitioners will be encouraged to

file frivolous appeals merely to extend their stays in this

country. The IIRIRA, the respondent urges, eliminated provisions

of the INA that automatically stayed removal upon the filing of a

petition for judicial review to address precisely such concerns.

See 8 U.S.C. § 1252(b)(3)(B) (a petition for review does not stay

removal unless a court orders otherwise). Khalil's brief does not

address any of the respondent's arguments on this issue, so we

outline no arguments for a contrary conclusion.

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 The respondent's arguments, whatever their merits, raise

concerns about notice to the bar and aliens of the respondent's

present position. Since Umanzor-Alvarado, this court's practice

when the agency has granted a period for voluntary departure has

been to decide on a case-by-case basis whether to reinstate that

departure period upon rendering our decision on the underlying

petition. See, e.g., Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st

Cir. 2003); Disu v. Ashcroft, 338 F.3d 13, 18 (1st Cir. 2003);

Quevedo v. Ashcroft, 336 F.3d 39, 45-46 (1st Cir. 2003); Yatskin,

255 F.3d at 11. The practice of the bar in this circuit, we

observe, has been not to file motions with this court to toll or to

stay the running of the period of voluntary departure pending

judicial review. We are unaware of any rules promulgated by the

INS giving notice to the bar and aliens of the position that the

respondent has taken in this litigation. No doubt this court will

in a later case be required to resolve these questions. We would

encourage the attention of the bar and potential amici on both

sides to the issue.

IV.

The denial of the motion to reopen is affirmed. Khalil,

having failed to depart earlier within the time permitted by this

court, has lost the privilege of voluntary departure as well as the

right to petition further for adjustment of status.

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