United States Court of Appeals
For the First Circuit
No. 04-2175
ARTUR BOCOVA,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Ilana Greenstein, with whom Harvey Kaplan, Maureen O'Sullivan,
Jeremiah Friedman, and Kaplan, O'Sullivan & Friedman, LLP were on
brief, for petitioner.
Beth Werlin for American Immigration Law Foundation, amicus
curiae.
John Andre, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Peter D. Keisler, Assistant Attorney General, and Donald
E. Keener, Deputy Director, Office of Immigration Litigation, were
on brief, for respondent.
June 24, 2005
SELYA, Circuit Judge. In this case, the Board of
Immigration Appeals (BIA) denied the petitioner's alternative
application for asylum or withholding of removal, but granted a
time-limited privilege of voluntary departure (now seemingly
expired). The first, and easier, question is whether substantial
evidence in the record supports the BIA's decision on the merits.
The second, and more difficult, question concerns the extent of our
own authority to fashion a new period of voluntary departure,
reinstate a lapsed period, or suspend the running of an unexpired
period. This court has not spoken definitively to this multi-part
question since the passage of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA).
On the first issue, we hold that the BIA's decision to
deny both asylum and withholding of removal is supported by
substantial evidence and, thus, the BIA's final order of removal
must stand. On the second issue, we hold that we lack the
authority either to fashion a new period of voluntary departure or
to reinstate an expired period of voluntary departure. We
nonetheless conclude that we possess the power, on a timely and
properly focused motion, to suspend the running of an unexpired
voluntary departure period. Because the petitioner's motion fails
to satisfy these requirements, we deny that relief as well.
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I. BACKGROUND
For simplicity's sake, we rehearse the facts as recounted
by the petitioner. We then map the travel of the case.
A. The Facts.
The petitioner, Artur Bocova, is an Albanian national.
In 1992, he became an active member of the Albanian Democratic
Party (ADP). He attended numerous meetings and rallies and
participated in an array of protests. During one such
demonstration, which occurred on August 28, 1998, the Albanian
police arrested the petitioner and several fellow protesters. He
was held without charges for two days, interrogated, beaten, and
threatened with death if he did not renounce the ADP. Following
his release, he remained active in the party of his choosing.
More than two years passed without incident. Then, on
October 14, 2000, the police again arrested the petitioner, this
time at a boisterous ADP rally. They apparently recognized him
because they remarked that he had not learned his lesson as a
result of his earlier detention. The police beat him (this time
with chains attached to plastic pipes) and again threatened to kill
him if he did not sever his ties to the ADP. The beating caused
the petitioner to lose consciousness and prompted the police to
take him to a hospital. He was unable to work for two days.
The petitioner remained in Albania and continued to
participate overtly in ADP activities. He consulted a lawyer about
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the efficacy of filing charges against the police officers who had
beaten him. The lawyer discouraged pursuing that course because
doing so might incite the police to further acts of violence.
In December of 2000, the petitioner, using a fraudulent
Greek passport, left Albania for Greece. He resided in Athens with
his uncle for approximately four months. In early 2001, the
Albanian police came looking for him at his parents' home; when
informed that he was not there, a policeman reportedly replied,
"tell him not to come back here any more."
The petitioner continued to worry about his safety
because of Greece's proximity to Albania. He therefore decided to
leave Greece with nine other aliens, using ersatz documentation.
The group traveled through the Netherlands, Venezuela, Ecuador, and
Mexico; on April 24, 2001, they sneaked across the border, near
Tijuana, with the help of smugglers. The petitioner then wended
his way to Boston.
B. Procedural History.
The petitioner applied for asylum on April 13, 2002.
Shortly thereafter, the government initiated removal proceedings
against him, charging that he was present in the United States
without legal sanction. See 8 U.S.C. §§ 1182(a)(6)(A)(i),
1182(a)(7)(A)(i). At a preliminary hearing before an immigration
judge (IJ), the petitioner conceded removability and cross-applied
for asylum or withholding of removal. The IJ convened an
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evidentiary hearing on January 10, 2003. After both sides had
rested, she denied the petitioner's requests for relief and ordered
his removal. Concomitantly, she granted him a sixty-day period
within which to depart voluntarily from the United States.
The petitioner appealed. The BIA affirmed the IJ's
decision on June 16, 2004, and granted the petitioner a fresh
thirty-day voluntary departure period. Due to a technical snafu,
the BIA reissued its decision on August 3, 2004; thus, the
voluntary departure period began to run on that date.
On September 1, 2004 (one day before his voluntary
departure period was due to end), the petitioner filed a petition
for judicial review of the BIA's decision and a motion for a stay
of removal. The government notified this court of its election not
to oppose a stay of removal. Consequently, we issued the stay on
October 5, 2004.
On November 19, 2004, the petitioner moved to stay the
running of his then-expired voluntary departure period. The
government objected. We granted a provisional stay pendente lite,
deferring a final disposition of the motion to the merits panel.
We also directed the parties to address in their briefs whether the
courts of appeals possess the authority to fashion, reinstate, or
stay periods of voluntary departure and, if so, under what
conditions. The parties faithfully complied with this directive
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and the American Immigration Law Foundation filed a helpful friend-
of-the-court brief.
II. THE MERITS
We turn first to the petition for judicial review. We
focus on the petitioner's asylum claim because a claim for
withholding of removal "places a more stringent burden of proof on
an alien than does a counterpart claim for asylum." Rodriguez-
Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005) (citing
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004)). Thus, if
the petitioner's asylum claim fails on the merits, his counterpart
claim for withholding of removal fails as well. See id.
In evaluating the BIA's denial of asylum, our review is
aimed at determining whether the agency's decision is supported by
substantial evidence in the record. Da Silva v. Ashcroft, 394 F.3d
1, 4 (1st Cir. 2005). Under that regime, we must accept the BIA's
findings of fact, including credibility determinations, as long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). The substantial evidence
standard is not petitioner-friendly; under it, the BIA's fact-based
determination of an alien's entitlement to asylum must be upheld
unless "any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B). In other words,
vacatur requires that the evidence "point[] unerringly in the
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opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir. 2004).
Rulings of law engender de novo review. Da Silva, 394
F.3d at 5. Even in that realm, however, courts must defer to the
BIA's reasonable interpretations of the statutes and regulations
relating directly to immigration matters. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999); Lattab v. Ashcroft, 384 F.3d 8,
17 (1st Cir. 2004).
To qualify for asylum, an applicant bears the burden of
establishing that he is a "refugee" within the meaning of the
Immigration and Nationality Act (INA). See 8 U.S.C. § 1158(b)(1);
see also Makhoul, 387 F.3d at 79. An applicant can carry this
burden either by proving past persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion, or by demonstrating a well-founded fear of
future persecution on account of one of these five grounds. See 8
U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b); see also Makhoul,
387 F.3d at 79. An alien must satisfy both a subjective and an
objective test in order to prove a well-founded fear of future
persecution. "That is to say, the asylum applicant's fear must be
both genuine and objectively reasonable." Aguilar-Solis v. INS,
168 F.3d 565, 572 (1st Cir. 1999).
In this instance, the IJ found the petitioner's testimony
credible and the BIA accepted that finding. We therefore proceed
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on the assumption that the Albanian police twice arrested, beat,
and threatened the petitioner and that this mistreatment was on
account of his political opinion (i.e., his membership in the ADP
— a party that was then out of favor). Accordingly, the question
reduces to whether, given those facts, the BIA was compelled, as a
matter of law, to find that the petitioner had established either
past persecution or a well-founded fear of future persecution.
Persecution is a protean word, capable of many meanings.
Cf. United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004)
(explaining that some "words are like chameleons" in that they may
"have different shades of meaning depending upon the
circumstances"). Because the word "persecution" is not defined by
statute, it is in the first instance the prerogative of the
Attorney General, acting through the BIA, to give content to it.
See Aguirre-Aguirre, 526 U.S. at 424. We are thus bound to accept
the BIA's view of what constitutes persecution unless that view
amounts to an unreasonable reading of the statute or inexplicably
departs from the BIA's earlier pronouncements. Davila-Bardales v.
INS, 27 F.3d 1, 5 (1st Cir. 1994).
For the most part, the BIA has eschewed the articulation
of rigid rules for determining when mistreatment sinks to the level
of persecution, preferring instead to treat the issue on an ad hoc,
case-by-case basis. See, e.g., In re L— K—, 23 I. & N. Dec. 677,
683 (BIA 2004); In re O— Z— & I— Z—, 22 I. & N. Dec. 23, 25-26 (BIA
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1998). That is a legitimate praxis. See SEC v. Chenery Corp., 332
U.S. 194, 202-03 (1947) (holding that agencies may implement
statutes that they administer case-by-case). Indeed, given the
nearly infinite diversity of factual circumstances in which asylum
claims arise, it would be difficult to develop meaningful
generalities that could easily be applied to a broad spectrum of
cases. See Aguilar-Solis, 168 F.3d at 569-70.
That the BIA has chosen to take each case as it comes in
deciding whether an alien has demonstrated persecution does not
mean that we are left without any guidance. We have held that
mistreatment ordinarily must entail more than sporadic abuse in
order to constitute persecution. See Nelson v. INS, 232 F.3d 258,
263 (1st Cir. 2000) (explaining that "unpleasantness, harassment,
and even basic suffering" are not enough). By the same token,
mistreatment can constitute persecution even though it does not
embody a direct and unremitting threat to life or freedom. See
Aguilar-Solis, 168 F.3d at 569-70. An important factor in
determining where a specific case falls along this continuum is
whether the mistreatment can be said to be systematic rather than
reflective of a series of isolated incidents. See O— Z— & I— Z—,
22 I. & N. Dec. at 26. We consistently have upheld this gloss as
a legitimate reading of the INA. See, e.g., Rodriguez-Ramirez, 398
F.3d at 124; Nelson, 232 F.3d at 263-64.
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Although we neither condone nor minimize the mistreatment
described by the petitioner, we do not feel free to second-guess
the BIA's determination that it fell short of establishing past
persecution. While any beating at the hands of the police is one
beating too many, the record here shows only two incidents, over an
eight-year span, occurring more than twenty-five months apart. The
first confrontation was relatively minor. Although the second was
more severe, there is little in the record to suggest that the
petitioner was systematically targeted for abuse on account of his
political beliefs.
We add, moreover, that on these facts, the BIA's
rejection of the petitioner's claim of past persecution is
consistent with other cases presenting comparable facts, in which
courts — including this court — have upheld denials of asylum.
See, e.g., Gishta v. Gonzales, 404 F.3d 972, 978-80 (6th Cir. 2005)
(finding supportable the BIA's determination that members of the
ADP who suffered sporadic beatings and jailings had not
demonstrated past persecution); Dandan v. Ashcroft, 339 F.3d 567,
573-74 (7th Cir. 2003) (upholding a finding of no persecution
despite a serious beating and a three-day detention); Guzman v.
INS, 327 F.3d 11, 15-16 (1st Cir. 2003) (affirming the BIA's
determination that a serious beating did not amount to
persecution). Although we, if writing on a pristine page, might
have decided the question differently, we are constrained by the
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standard of review: the evidence is not conclusive either way and,
thus, a reasonable adjudicator would not be compelled to reach a
particular conclusion. We therefore find that the BIA's
determination — that the petitioner was not subject to past
persecution — is sufficiently supported by the record. See 8
U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 481;
Laurent, 359 F.3d at 64.
That leaves the likelihood of future persecution should
the petitioner be deported to Albania. As to this facet of the
asylum analysis, the petitioner's only evidence — apart from the
past indignities mentioned above — is his hearsay account of the
police officers' visit to his parents' home after he had left the
country. When the police were informed that the petitioner had
departed, they reportedly replied that his parents should "tell him
not to come back here." The BIA deemed this cryptic comment
insufficient to establish a well-founded fear of future persecution
and that conclusion is readily sustainable.
The short of it is that there are a multitude of possible
explanations for the officers' visit. And even if we were to
assume, without a scintilla of evidence, that the petitioner's
political beliefs sparked the visit — an inference that the BIA
declined to draw — that assumed fact would not compel a finding
that the visit gave rise to an objectively reasonable fear of
future persecution. See, e.g., Flores-Castro v. INS, No. 98-71136,
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2000 WL 1335524, at *1 (9th Cir. Sept. 14, 2000) (upholding a
finding that an alien had not established a reasonable fear of
future persecution based on a visit by the police to his mother's
house, in which the police had made no specific threats); Milosevic
v. INS, 18 F.3d 366, 371 (7th Cir. 1994) (agreeing that petitioner
had not established a well-founded fear of future persecution based
on a visit to his wife's house in which the police asked for the
petitioner); cf. Makhoul, 387 F.3d at 81-82 (refusing to set aside
the BIA's conclusion that the petitioner had failed to show a
reasonable fear of future prosecution based on the arrest of one of
his compatriots). To cinch matters, the petitioner has given us no
reason to question the BIA's determination that, in Albania today,
there is no pattern of persecution of similarly situated persons,
such that the petitioner reasonably could expect to be persecuted
upon his return.
Simply put, there is no principled basis on which we may
set aside the BIA's conclusion that the petitioner failed to
establish either past persecution or a well-founded fear of future
persecution. This holding also dooms the petitioner's counterpart
claim for withholding of removal. See Rodriguez-Ramirez, 398 F.3d
at 123. Accordingly, we must deny the petition for review.
III. VOLUNTARY DEPARTURE
Having concluded that the removal order must be
sustained, we now address the matter of voluntary departure.
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We start with first principles. Voluntary departure is
a discretionary form of relief that allows an alien who is subject
to a deportation order a period of time in which to leave the
country of his own volition. If adhered to, voluntary departure
produces a win-win situation. It benefits the government by
expediting departures and eliminating the costs associated with
deportation. See Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir.
2004). It benefits the alien because it allows him to choose the
destination to which he will travel and to avoid the penalties
attendant to removal (thereby easing a possible return to the
United States).1 See id. Voluntary departure, however, is not a
one-way street: its benefits come with attendant responsibilities.
An alien who fails to leave the country within the allotted
departure period faces sanctions, including forfeiture of the
required bond, a fine of up to $5,000, and a ten-year period of
ineligibility for certain forms of relief under the INA. See 8
U.S.C. § 1229c(a)(3), (b)(3), (d); see also Lopez-Chavez v.
Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004).
In this case, the IJ and the BIA each granted the
petitioner a period of voluntary departure. The petitioner
1
An alien who has departed the United States while under an
outstanding order of removal is ineligible for readmission to the
United States for a period of either five or ten years, depending
on the circumstances, without the Attorney General's consent. 8
U.S.C. § 1182(a)(9)(A). An alien who departs pursuant to a grant
of voluntary departure avoids this disability. Lopez-Chavez v.
Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004).
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maintains that we may reinstate the last of these voluntary
departure periods in toto, so that he will have thirty days from
the date of our mandate within which to leave the United States on
his own initiative. Alternatively, he argues that we have
authority to stay the voluntary departure period previously granted
by the BIA, so that it does not run during our consideration of his
petition for review and resumes only upon issuance of our mandate.
Before the effective date of the IIRIRA, this court's
practice was to reinstate voluntary departure privileges in
appropriate cases. See Umanzor-Alvarado v. INS, 896 F.2d 14, 16
(1st Cir. 1990) (Breyer, J.). The IIRIRA materially changed the
ground rules for voluntary departure by stripping the courts of
appeals of jurisdiction to review BIA decisions as to whether to
grant voluntary departure and, if so, for how long. See 8 U.S.C.
§§ 1229c(f), 1252(a)(2)(B)(i). We have not heretofore determined
the viability of our authority to reinstate a period of voluntary
departure in a post-IIRIRA world. We do so today.
Two of our post-IIRIRA opinions (both involving the same
alien) furnish useful background. In Khalil v. Ashcroft, 337 F.3d
50 (1st Cir. 2003) (Khalil I), we followed our historic practice
and reinstated the petitioner's voluntary departure period without
considering the IIRIRA's effect on our authority to do so.2 Id. at
2
So too Velasquez v. Ashcroft, 342 F.3d 55, 59 (1st Cir.
2003), in which a panel of this court reinstated a voluntary
departure period in reliance on Khalil I, but without directly
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56. Khalil chose not to quit while he was ahead and overstayed his
freshly minted voluntary departure period. We were then faced with
the question, inter alia, of whether our reinstatement of the
voluntary departure period functioned retroactively to forgive his
disregard of the voluntary departure deadline originally set by the
BIA. We concluded that the reinstatement did not so operate, but
declined to address the government's argument that the
reinstatement itself was a nullity because the court had no
authority to grant such relief. Khalil v. Ashcroft, 370 F.3d 176,
177, 179-80 (1st Cir. 2004) (Khalil II). We nonetheless
acknowledged the issue as open to future consideration and advised
the immigration bar to take pains to protect whatever rights aliens
might have to preserve voluntary departure privileges. See id. at
182.
The instant case brings us face to face with the question
alluded to, but left unanswered, in Khalil II. We must explore
whether we retain the authority, after the effective date of the
IIRIRA, to reinstate or suspend a previously granted voluntary
departure period.3
examining either the impact of the IIRIRA or the court's continuing
authority to reinstate voluntary departure orders.
3
Congress enacted the IIRIRA on September 30, 1996, to take
effect on April 1, 1997. See Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104-208, §309, 110 Stat.
3009-546, 3009-625 (1996).
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The matter of reinstatement is open and shut. All of the
courts of appeals to resolve the issue thus far have concluded that
they no longer may reinstate expired periods of voluntary
departure. See Mullai v. Ashcroft, 385 F.3d 635, 639-40 (6th Cir.
2004); Rife, 374 F.3d at 616; 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); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1174
(9th Cir. 2003). We agree with these decisions and hold that we no
longer have the authority, at the conclusion of judicial review,
either to fashion a new voluntary departure period or to reinstate
an expired one.
Our reasoning is straightforward. The IIRIRA worked a
sea change in the federal courts' authority over voluntary
departure orders by withdrawing from the courts jurisdiction to
review grants or denials of voluntary departure. See 8 U.S.C. §§
1229c(f), 1252(a)(2)(B)(i). It also relegated to the Attorney
General the sole authority to determine the length of a voluntary
departure period, including any extensions thereof. See id. §
1252(a)(2)(B)(i). Reinstating an expired voluntary departure
period is functionally equivalent to fashioning a new voluntary
departure period; doing so would require the court to dictate both
the length of the period and the time when it would begin to run
(thus effectively overriding the Attorney General's decision). See
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Mullai, 385 F.3d at 640; Zazueta-Carrillo, 322 F.3d at 1172-73.
That would be an impermissible circumvention of Congress's will.
Consequently, we disclaim the existence of any such authority and,
to that extent, we expressly abrogate our earlier decisions in
Umanzor-Alvarado, Khalil I, Velasquez, and similar cases.
There remains the petitioner's alternative argument that
we may stay a voluntary departure period previously granted by the
BIA pending judicial review of a removal order. On this issue, our
sister circuits are divided. Four of them have held that the
courts of appeals have the power to toll the running of a voluntary
departure period previously granted by the BIA. See Lopez-Chavez,
383 F.3d at 654; Rife, 374 F.3d at 616; Nwakanma v. Ashcroft, 352
F.3d 325, 327 (6th Cir. 2003); El Himri v. Ashcroft, 344 F.3d 1261,
1262 (9th Cir. 2003). The Fourth Circuit has concluded that the
courts of appeals lack any such authority. Ngarurih, 371 F.3d at
194. For the reasons that follow, we subscribe to the majority
view and hold that, post-IIRIRA, the courts of appeals retain the
power to suspend a period of voluntary departure (and, thus, to
toll the running of the period).
Our analysis derives principally from the statutory
scheme. What we view to be the controlling statute, 8 U.S.C. §
1252, makes judicial review of all final orders of removal subject
to the provisions of the Administrative Orders Review Act (better
known as the Hobbs Act), 28 U.S.C. §§ 2341-2351. A key provision
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of the Hobbs Act declares that "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." Id. § 2349(b). We regard this language as
authorizing courts of appeals, in immigration cases, to suspend
(that is, to stay) the running of unexpired voluntary departure
periods. Accord Rife, 374 F.3d at 615-16; El Himri, 344 F.3d at
1262 (adopting concurring opinion of Berzon, J., in Zazueta-
Carrillo, 322 F.3d at 1177).
We do not find any language in the IIRIRA itself that
limits our authority to suspend the running of an unexpired
voluntary departure period. Although the IIRIRA eliminated our
jurisdiction to review the BIA's decisions granting or denying
voluntary departure, see 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i),
there is a meaningful distinction between reviewing a grant or
denial of voluntary departure (which entails testing the order's
substantive validity) and suspending the running of a voluntary
departure period granted by the agency (which entails staying the
operation of the order pending judicial review of the validity of
the underlying removal decision). See Lopez-Chavez, 383 F.3d at
652; Rife, 374 F.3d at 615; El Himri, 344 F.3d at 1262.
Given this distinction, we think that if it were
Congress's intention to divest the courts of appeals of authority
to suspend voluntary departure periods, it would have expressed
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that intention in a much more direct and pointed fashion.
Statutory ambiguities ordinarily are to be construed in favor of
the alien in the immigration context. See INS v. St. Cyr, 533 U.S.
289, 320 (2001); INS v. Errico, 385 U.S. 214, 225 (1966); Fong Haw
Tan v. Phelan, 333 U.S. 6, 10 (1948). Having in mind both that
maxim and Congress's conspicuous lack of specificity here, we
decline the government's invitation to attempt to tease a
jurisdiction-stripping meaning out of the oblique language
contained in 8 U.S.C. § 1229c(f) and § 1252(a)(2)(B)(1). See
Miller v. French, 530 U.S. 327, 340-41 (2000) (warning that courts
should be chary about interpreting statutes to restrict the scope
of traditional judicial review absent the "clearest command" or an
"inescapable inference to the contrary" (citations and internal
quotation marks omitted)); United States v. Green, 407 F.3d 434,
442 (1st Cir. 2005) (explaining that courts interpreting statutes
ordinarily should eschew "linguistic contortion[s] to reach a
result that Congress could have accomplished much more simply and
straightforwardly"). We conclude, therefore, that the statutory
provision relied on by the government cannot override the clear
grant of authority contained in 28 U.S.C. § 2349(b).
The government has one last arrow in its quiver. It
suggests that because 8 U.S.C. § 1252 limits appellate jurisdiction
to review of final orders of removal and because an order allowing
a period for voluntary departure is not a final order of removal,
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we may not suspend the running of a voluntary departure period.
This is sheer persiflage. As a formal matter, orders of removal
and grants of voluntary departure are entered as alternate orders
that comprise different facets of a single ukase. 8 C.F.R. §
1240.26(d). In other words, they are complementary; the BIA may
grant a period of voluntary departure, but if the alien overstays
the allotted period, that part of the order effectively
disintegrates and the removal component takes effect. Taken to its
logical extreme, the government's argument would require us to find
that we have no jurisdiction to entertain a petition for review
unless and until the petitioner has overstayed his voluntary
departure deadline because only then is the removal order actually
entered against him. We simply do not believe that Congress
contemplated such an odd result.
To sum up, we conclude that we have the authority to
suspend the running of an unexpired voluntary departure period
while a petition for judicial review is pending. That conclusion,
however, raises several related questions as to when and how a
motion for a stay must be filed, whether the movant must exhaust
administrative remedies before seeking a stay, and what standards
should obtain in determining whether to grant a stay.
The courts that have directly addressed the issue have
all determined that in order to qualify for a stay, the alien must
make a timeous motion, that is, he must so move before the
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voluntary departure period expires. See, e.g., Alimi v. Ashcroft,
391 F.3d 888, 892 (7th Cir. 2004); Mullai, 385 F.3d at 640; Rife,
374 F.3d at 616. But cf. Desta v. Ashcroft, 365 F.3d 741, 745-46
(9th Cir. 2004) (leaving the question open). Beyond that baseline,
however, the cases are in some disarray. The Eighth and Ninth
Circuits treat a motion to stay removal as implicitly encompassing
a request for a stay of voluntary departure. See Rife, 374 F.3d at
616; Desta, 365 F.3d at 745-46. The Seventh Circuit has rejected
that view and requires a particularized request for a stay of
voluntary departure. See Alimi, 391 F.3d at 892-93.
We agree that an alien must file a motion for a stay
before the expiration of the period of voluntary departure allotted
by the BIA. Once the voluntary departure period has run its
course, a court of appeals lacks the authority to fashion a new one
or to reinstate or extend the old one. See text supra; see also
Khalil II, 370 F.3d at 180. That holding compels the further
conclusion that an expired voluntary departure period cannot be
resuscitated retroactively. Khalil II, 370 F.3d at 177. After the
period has elapsed, there is nothing to suspend and any court order
purporting to toll an expired period of voluntary departure would
have the effect of creating a new voluntary departure period.
Under the IIRIRA, that is impermissible. See Mullai, 385 F.3d at
640; Lopez-Chavez, 383 F.3d at 652-53.
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We further hold that an alien must ask explicitly for a
stay of voluntary departure; a motion that prays only for a stay of
removal will not suffice. Several salient considerations counsel
in favor of requiring a particularized request for a stay of
voluntary departure. Chief among them is the need for both the
government and the court to understand exactly what relief the
movant is seeking. See Alimi, 391 F.3d at 892-93. The government
may (and often does) elect not to oppose a motion for a stay of
removal (indeed, it followed that course here). It may, however,
choose to oppose a suspension of the voluntary departure period.
If every request for a stay of removal were treated as
incorporating sub silento a request for a stay of voluntary
departure, the government might be far less willing to acquiesce.
Requiring the motion to specify what redress the alien seeks allows
the government to take an equally explicit position.
Relatedly, we note that stays usually require expedited
judicial consideration. The need for celerity makes it imperative
that the court know the parties' positions up front. Even though
the same basic legal test applies to motions for stays of removal
and motions for stays of voluntary departure, see text infra, that
test may play out differently as to each type of relief. Given
this possibility, requiring the alien to be precise about the
relief requested will materially assist the court in conducting its
review.
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The next problem relates to the need, if any, for
exhaustion of administrative remedies. The Seventh Circuit — and
only the Seventh Circuit — requires an alien to exhaust
administrative remedies (that is, to request an extension of the
voluntary departure period from the United States Citizenship and
Immigration Services District Director) before seeking a judicial
stay of voluntary departure. Alimi, 391 F.3d at 893. We reject
this gloss.
In imposing an exhaustion requirement, the Seventh
Circuit reasoned that, generally speaking, the law favors
exhaustion of available administrative remedies as a condition
precedent to seeking judicial assistance and that a voluntary
departure order does not require the alien to depart until a future
date (thus leaving time to pursue administrative remediation). See
id. at 893. We find this reasoning unpersuasive. A suspension of
a voluntary departure period merely tolls the running of that
period; it does not extend it. Because neither the BIA nor
Citizenship and Immigration Services (CIS) appears to have the
authority to toll a voluntary departure period pending judicial
review,4 we doubt whether there is any suitable administrative
remedy for the alien to exhaust.
4
We are aware of no case in which either the BIA or CIS has
granted such a suspension, and the government has brought none to
our attention.
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Even if such a remedy exists, we fear that, in the
majority of cases, requiring an alien to seek an administrative
extension would be an exercise in futility. By law, the BIA may
fashion a voluntary departure period of no more than sixty days.
See 8 U.S.C. § 1229c(b)(2). Certain high-level CIS officials are
authorized to extend that period, but they too are bound by the
sixty-day maximum; they may only extend the voluntary departure
period if the BIA granted less than the maximum voluntary departure
time in the first instance. See id. § 1229c(b)(2); 8 C.F.R. §
1240.26(f). A sixty-day interval simply is not enough time, in the
ordinary course of events, to permit the docketing, briefing,
argument, and decision of a petition for judicial review.
The flip side of the coin reveals an equally unpromising
reality. A motion to suspend the running of the voluntary
departure period must be made during the currency of that period.
See text supra. Given this short shelf life, requiring the alien
first to request some evanescent administrative remedy, which the
agency may act upon at its leisure, might well sound the death
knell for the possibility of a judicial stay. That is too high a
price to demand that the alien pay. Cf. Mackey v. Bd. of Educ.,
386 F.3d 158, 162 n.3 (2d Cir. 2004) (excusing a litigant's failure
to exhaust administrative remedies when the agency's delay could
have resulted in the unavailability of the relief sought).
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For the foregoing reasons, we conclude that an alien
seeking a stay of a previously granted period of voluntary
departure must apply for the stay before the expiration of that
period and that the motion must explicitly request a stay of the
voluntary departure period. The movant need not, however, first
apply for an administrative extension of the voluntary departure
period.
We turn now to the substantive standards for evaluating
a motion to suspend the running of a previously granted voluntary
departure period. Mindful of the weight of authority elsewhere,
see, e.g., Rife, 374 F.3d at 616; Desta, 365 F.3d at 748, we
conclude that we should subject such a motion to scrutiny under the
same legal standards used to assess a motion for stay of removal.
Those criteria are spelled out in our opinion in Arevalo v.
Ashcroft, 344 F.3d 1 (1st Cir. 2003). There, we held that requests
for stays of removal should be evaluated under the four-part test
applicable to applications for preliminary injunctive relief. Id.
at 9. That test requires the alien to show "(1) that she is likely
to succeed on the merits of her underlying objection; (2) that she
will suffer irreparable harm absent the stay; (3) that this harm
outweighs any potential harm fairly attributable to the granting of
the stay; and (4) that the stay would not disserve the public
interest." Id. at 7.
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We add a coda. Although we use the same four-part test
for adjudicating motions for stays of removal and motions to
suspend the running of voluntary departure periods, the
considerations to which the test applies may not be fully
congruent. Thus, there may be cases in which an alien is entitled
to a stay of removal but not a stay of voluntary departure. See
Alimi, 391 F.3d at 892-93 (observing that a stay of voluntary
departure may not always be appropriate in cases in which a stay of
removal is appropriate); Rife, 374 F.3d at 616 (similar).
At this point, we return to the case at hand. Here, the
petitioner did not move to stay the running of the voluntary
departure period until well after that period expired.
Consequently, we deny his motion.5 Our earlier order staying the
order of removal will remain in effect until mandate issues. See
Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004).
During that interval, the petitioner remains free to depart the
United States on his own volition and thereby to avoid some (but
not all) of the untoward consequences associated with forced
removal. See Khalil II, 370 F.3d at 180.
5
If this result seems harsh, we note that we released our
opinion in Khalil II on June 3, 2004, well before the BIA decided
the petitioner's case. The petitioner plainly was on notice that
the issue was in play and easily could have taken precautionary
steps to protect his interests.
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IV. CONCLUSION
We need go no further. To recapitulate, we deny the
petition for review. We likewise deny the petitioner's hydra-
headed request that we fashion a new voluntary departure period,
retroactively reinstate his expired voluntary departure period, or
treat his motion for a stay of removal as a motion to suspend the
march of the voluntary departure period. While we hold that, in
appropriate cases, we possess the authority to suspend the running
of an unexpired period of voluntary departure, this is not an
appropriate case; an alien must explicitly request that relief
before the expiration of the voluntary departure period,6 and the
petitioner has not satisfied that requirement.
The petition for review and the motion to reinstate or
stay a voluntary departure period are denied. The stay of removal
and the provisional order anent voluntary departure are revoked.
6
For the sake of clarity, we add that an alien who desires
both a stay of removal and a stay of the running of a previously
granted voluntary departure period may incorporate both requests in
a single motion. The motion, however, must be explicit as to the
forms of relief requested and must be timely as to each request.
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