United States Court of Appeals
For the First Circuit
No. 05-1438
SANDRA H. DACOSTA,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Jose A. Vazquez on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Anthony W.
Norwood, Senior Litigation Counsel, and Terri J. Scadron, Assistant
Director, Office of Immigration Litigation, Civil Division, on
brief for respondent.
May 24, 2006
HOWARD, Circuit Judge. Sandra DaCosta, a native and
citizen of Brazil, petitions for review of a decision of the Board
of Immigration Appeals (BIA). The BIA found DaCosta statutorily
ineligible for adjustment of status and ordered her removed from
the United States. We deny the petition.
DaCosta failed to depart the United States when her six-
month tourist visa expired in May 1994. Over two years later, she
filed an application for political asylum and withholding of
removal with the Immigration and Naturalization Service (INS)1
claiming that she had been threatened by Brazilian drug
traffickers. In July 1997, the INS commenced removal proceedings
against DaCosta by charging her with overstaying her visa.
Conceding removability, DaCosta renewed her request for asylum.
Following a hearing, an immigration judge found DaCosta removable
and denied her applications for asylum and withholding of removal.
The immigration judge granted her voluntary departure in lieu of
removal but informed her that if she failed to depart by October
13, 1998, she would be subject to removal without further notice.
1
In March 2003, during the pendency of proceedings in this
case, the functions of the INS were reorganized and transferred
from the Department of Justice to the newly formed Department of
Homeland Security (DHS). See Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). Title 8 of the
Code of Federal Regulations was thereafter reorganized and amended
to reflect the resulting division of jurisdiction between the DHS
and the Executive Office for Immigration Review, which includes the
immigration courts and the BIA and remains under the direction of
the Attorney General. See 68 Fed. Reg. 10349 (Mar. 5, 2003). To
avoid confusion, we shall employ the shorthand "INS" whether
referring to the former INS or the present DHS.
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The BIA affirmed without opinion on June 6, 2002 and
granted DaCosta an additional 30 days to voluntarily depart the
United States "subject to any extension beyond that time that may
be granted by the district director." Citing section 240B(d) of
the Immigration and Nationality Act (INA), the BIA warned that if
DaCosta failed "to depart the United States within the time
specified, or any extensions granted by the district director,
[DaCosta] . . . shall be ineligible for a period of 10 years for
any further relief including adjustment of status." See 8 U.S.C.
§ 1229c(d). DaCosta did not petition for review of that order,
and, despite the BIA's warning, failed to depart or to request an
extension of the voluntary departure period.
On September 3, 2002, DaCosta moved the BIA to reopen her
case to allow her to apply for an adjustment of status to lawful
permanent resident. DaCosta claimed that she had married a United
States citizen and that, in August 2000, during the pendency of her
BIA appeal, her spouse had filed an I-130 "alien relative" petition
in support of her I-485 application for adjustment. According to
DaCosta's motion, the INS had accepted her application, her
husband's petition and the accompanying processing fees, and had
subsequently notified DaCosta to appear for an interview at the INS
office in Hartford, Connecticut. DaCosta claimed that the INS
agent who conducted the interview informed her that her application
would be transferred to the Providence, Rhode Island, INS office.
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DaCosta further claimed that, on July 16, 2002, she
received a letter from the Providence office informing her that it
lacked jurisdiction to process her application because she was in
removal proceedings. See 8 C.F.R. § 245.2(a)(1) ("After an alien
. . . is in deportation or removal proceedings, his or her
application for adjustment of status . . . shall be made and
considered only in those proceedings."). According to DaCosta's
motion, for nearly two years she had been led to believe that her
application was being processed by the INS when in fact it was not.
DaCosta therefore asserted that her case should be reopened because
the INS had "misled" her during the time period when she could have
asked the BIA to remand her case for consideration of her
adjustment application. The INS did not file an opposition to
DaCosta's motion to reopen.
On October 24, 2002, the BIA, noting only the lack of
opposition from the INS, granted DaCosta's motion to reopen and
remanded the case for further proceedings.2 On remand, the INS
argued that DaCosta was ineligible for adjustment of status because
she had failed to comply with the BIA's voluntary departure order
of June 6, 2002. The INS argued that INA § 240B(d) mandates that
an alien who fails to voluntarily depart within the time period
specified in a voluntary departure order is ineligible for
2
Three days before the BIA order reopening proceedings, the
INS Service Center in Vermont granted the I-130 petition filed by
DaCosta's husband and instructed DaCosta to file a I-485
application for adjustment.
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adjustment of status for a period of ten years. See 8 U.S.C. §
1229c(d). The immigration judge disagreed, finding that the BIA's
order reopening the case extinguished the legal consequences of her
failure to timely depart. The immigration judge therefore
considered the merits of DaCosta's adjustment application. During
cross-examination at the hearing, DaCosta confirmed her receipt of
the BIA's June 6, 2002 order denying her appeal. She testified
that she understood that the order required her to leave the United
States within 30 days and that if she failed to depart within that
time, she could be fined and would be ineligible for certain forms
of relief. Nevertheless, on October 23, 2003, the immigration
judge granted DaCosta's application for adjustment of status. See
8 U.S.C. § 1255.
The INS appealed to the BIA, again arguing that DaCosta
was statutorily ineligible for relief. DaCosta, citing to a
provision in the INA that was repealed in 1996 with passage of the
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA"), responded that "exceptional circumstances" beyond her
control -- the INS's two-year delay in notifying her that it did
not have jurisdiction to adjudicate her application -- excused her
failure to depart. See INA § 242B (codified at 8 U.S.C. §
1252b(e)(2)(A) (1995) (repealed 1996)). DaCosta also argued that
the INS had waived its opportunity to appeal the immigration
judge's decision to grant adjustment of status by failing to oppose
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her motion to reopen. On February 24, 2005, the BIA sustained the
INS's appeal and vacated the order granting adjustment.
Acknowledging that it had made a good-faith error in reopening the
case, the BIA agreed with the INS that DaCosta was statutorily
ineligible for adjustment of status because she had violated an
order to depart. Citing Matter of Shaar, the BIA held that DaCosta
had failed to establish "exceptional circumstances" sufficient to
excuse her failure to depart. See 21 I. & N. Dec. 541, 544-46 (BIA
1996) (holding that, during the pendency of a voluntary departure
period, neither the filing of a motion to reopen to apply for a new
form of discretionary relief nor an immigration judge's failure to
adjudicate such a motion qualify as "exceptional circumstances"
sufficient to excuse a failure to depart within the confines of the
departure order). The BIA ordered DaCosta removed to Brazil. She
thereafter filed the present petition for review.3
3
Contemporaneous with her petition for review, DaCosta moved
the BIA to reconsider its February 2005 decision. Although the
BIA's subsequent denial of that motion is not the subject of the
present petition for review, we note that the BIA offered a point
of clarification regarding an error in its previous order of
February 2005. Because removal proceedings were commenced against
DaCosta in July 1997, after the passage of the IIRIRA, the new
section 240B(d), as opposed to the former section 242B, provides
the applicable voluntary departure provision. Compare 8 U.S.C. §
1252b(e)(2)(A) (1995) (repealed 1996), with 8 U.S.C. § 1229c(d)
(2005). The BIA noted that, among other things, the new provision
removes the opportunity for an alien to demonstrate "exceptional
circumstances" excusing a failure timely to depart. See 8 U.S.C.
§ 1229c(d) ("If an alien . . . fails voluntarily to depart the
United States within the time period specified [in a voluntary
departure order], the alien shall be . . . ineligible for a period
of 10 years for any further relief," including adjustment of status
under 8 U.S.C. § 1255) (emphasis added). The BIA therefore
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DaCosta's petition to this court does not contest that
INA § 240B(d) bars an alien from receiving an adjustment of status
where the alien has previously failed to depart the United States
within the deadline of a voluntary departure order. See Jupiter v.
Ashcroft, 396 F.3d 487, 491 (1st Cir. 2005) (holding that the plain
language of INA § 240B(d) renders an alien ineligible for
adjustment of status where the alien has previously failed to
adhere to a voluntary departure order). She also abandons her
argument that "exceptional circumstances" excuse her failure to
timely depart. Rather, she asserts that, by failing to oppose her
motion to reopen for consideration of her application for
adjustment of status, the INS waived its right to contest the
immigration judge's subsequent order granting her adjustment. She
further contends that the BIA's order reopening her case had the
effect of reopening and tolling her voluntary departure period and
gave the immigration judge the authority to consider afresh her
application for adjustment of status.
DaCosta also presents three new legal theories based on
the same set of operative facts previously cited in support of her
"exceptional circumstances" argument. First, she argues that the
government should be equitably estopped from asserting her
ineligibility for adjustment in light of her detrimental reliance
recognized that it had erred in previously considering DaCosta's
"exceptional circumstances" argument. But because that error did
not alter the result, the BIA concluded that it was harmless.
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on the INS's implicit and explicit representations that it was
processing her application. For similar reasons, she contends that
the running of her voluntary departure period should be regarded as
having been equitably tolled until October 21, 2002, the date in
which her husband's I-130 petition was approved. Finally, she
asserts that the INS's conduct in mishandling her application
violated her due process rights.
We begin by outlining the limits of our jurisdiction to
adjudicate DaCosta's claims. The INA strips the courts of
jurisdiction to review BIA decisions granting or denying
discretionary relief such as adjustment of status. See 8 U.S.C. §
1252(a)(2)(B). Because a BIA decision on the merits of an
application for adjustment of status is committed to the discretion
of the Attorney General, "arguably, this court would not have
jurisdiction to review that discretionary determination." Succar
v. Ashcroft, 394 F.3d 8, 19 n.15 (1st Cir. 2005). In this case,
however, the BIA did not reach the merits of DaCosta's adjustment
claim, finding, as a threshold matter, that she is statutorily
ineligible for such relief. The arguments presented in DaCosta's
petition are legal in nature, "and as such [are] not within the
jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)." Id. at 19; see
also Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir. 2005). We review
such legal questions de novo, subject to established principles of
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agency deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999); Herrara-Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000).
There is another jurisdiction-stripping provision,
however, that is applicable here: 8 U.S.C. § 1252(d)(1), which
permits judicial review of a final order of removal only where "the
alien has exhausted all administrative remedies available to the
alien as of right." In her brief to the BIA preceding its February
2005 order (the decision from which DaCosta petitioned for review),
DaCosta did not argue that the doctrines of equitable estoppel or
equitable tolling were applicable. Because the BIA was not given
the opportunity to adjudicate these claims, we may not consider
them now. See Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005)
(noting that we lack authority "to consider points not squarely
raised before the BIA").4
DaCosta's due process argument, which was also not
presented to the BIA, is subject to a different analysis. We have
noted that "an asserted denial of due process may, in certain
limited circumstances, be exempt from the ordinary exhaustion
requirement." Jupiter, 396 F.3d at 492 (noting that such
4
DaCosta did ultimately raise these issues with the BIA in the
motion to reconsider she filed contemporaneously with this petition
for review. But although the BIA subsequently denied that motion,
DaCosta never petitioned for review of that decision. We therefore
lack jurisdiction to review that decision and consequently cannot
consider the arguments DaCosta raised for the first time in her
motion to reconsider. Cf. Asemota v. Gonzales, 420 F.3d 32, 33
(1st Cir. 2005) (considering only the denial of petitioner's motion
to reconsider where petitioner failed to timely petition for review
of the underlying order).
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circumstances "are rare and are restricted to claims that are
beyond the authority of the agency to adjudicate"). Without
deciding whether DaCosta's due process claim falls within this
exemption, we conclude that it cannot succeed. See id. (assuming
jurisdiction arguendo where petitioner's due process claim was not
colorable). A due process claim requires that a cognizable liberty
or property interest be at stake. See id. (citing Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976)). Because adjustment of
status is a discretionary form of relief, it does not rise to the
level of such a protected interest. See id. (citing Henry v. INS,
74 F.3d 1, 7 (1st Cir. 1996)).
DaCosta's waiver argument also fails. DaCosta contends
that the INS is barred from presenting an argument as to her
eligibility for adjustment where it previously declined an
opportunity to "try" the issue by not opposing her motion to
reopen. But the cases she cites, Matter of Kasinga, 21 I. & N.
Dec. 357, 363 (BIA 1996) (denying remand where the INS already had
an opportunity to explore a particular issue before the immigration
judge) and Matter of Guevara, 20 I. & N. Dec. 238, 249 (BIA 1991)
(denying a motion to reconsider where the INS already had ample
opportunity to introduce additional evidence of deportability), are
inapposite. The filing of a motion to reopen with the BIA is not
a vehicle for trying an issue, but is merely a request for the
opportunity to try it. Although the INS did not oppose the motion
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to reopen, the INS did not waive its right to present an argument
against DaCosta's request for adjustment of status or to appeal the
immigration judge's decision granting such relief. DaCosta's
entitlement to adjustment of status was not before the BIA at the
motion to reopen stage.
DaCosta's remaining argument is that she actually did not
violate the BIA's voluntary departure order. She contends that, by
reopening her case, the BIA effectively expunged its June 6, 2002
voluntary departure order. Consequently, she argues, since the
BIA's final decision ordering voluntary departure was erased, the
requirement to leave the United States within 30 days of the final
decision was never triggered.
DaCosta places too much significance on the BIA's order
reopening her case. It is undisputed that DaCosta's voluntary
departure period had already expired before she filed her motion to
reopen with the BIA. Although the BIA's reopening of the case had
the legal effect of vacating the BIA's June 6, 2002 order, it could
not "retroactively nullify" DaCosta's previous violation of the
terms of that order. Cf. Khalil v. Ashcroft, 370 F.3d 176, 180
(1st Cir. 2004) (holding that reinstatement of a new voluntary
departure period did not apply retroactively to eradicate the legal
consequences of failing to comply with the agency's original grant
of voluntary departure so as to render the alien eligible for
adjustment of status); see also Bocova v. Gonzales, 412 F.3d 257,
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268, 270 (1st Cir. 2005) (holding that "[o]nce 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[,]" and that, in order to suspend a voluntary departure period,
an alien must "explicitly request that relief before the expiration
of the voluntary departure period") (emphasis added).
Voluntary departure is a discretionary form of relief
that allows an alien subject to removal time in which to leave the
country of her own volition. See id. at 264-65. The privilege of
voluntary departure provides benefits to both the government and
the alien, but with the benefits come "attendant responsibilities."
Id. at 265. A failure to honor those responsibilities results in
mandatory sanctions. The BIA's order reopening DaCosta's case
cannot expunge her previous violation of an order to depart.
Therefore, the BIA properly found DaCosta statutorily ineligible
for adjustment of status for failure to comply with an order to
voluntarily depart.
The petition for review is denied.
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