*1 May jury done so? having member CHEDAD, Petitioner, Adil based on penalty the death
impose if de- a victim even “vulnerability” of vulnerability? of such was unaware fendant with the awesome jury vested Should GONZALES, Attorney Alberto R. penalty the death be imposing
task of General, Respondent. on burdens of parse instructions asked accounts, are, all confus- No. 05-2782. proof ing? Appeals, States Court of ques- with these imply mean to I do not First Circuit. concluded prematurely that I have tions apply penalty death should Sept. Heard 2006. decided that may have well here. We July Decided penalty eligible for the death Sampson was hearing reviewing the evidence after However, this these issues.
argument on these issues are has decided
Court
insufficiently and thus has de- important, future death only Sampson, but
prived not col- of the benefit
penalty litigants I would have reheard judgment.
lective banc, I accordingly, must
this case en
dissent.
LIPEZ, dissenting from Judge, Circuit of en review.
the denial banc panel of the in this
I was a member noted in qualification the one
case. With fully support I the decision opinion, Nevertheless, I reached. panel rehearing en banc.
regret the denial any other our circuit
This case is unlike Despite my confidence
has considered. I believe that panel’s judgment, by the of the imposition
issues raised important are and chal- penalty
death so future that our decision here —and
lenging by the be informed
decisions—should colleagues who wish to contribute
views of developing jurisprudence
to the circuit’s respectfully I dissent
this area. therefore for en banc petition denial
review. *2 Downer, Matthew
Nadine Wettstein and Immi- on brief for amicus curiae American gration Law Foundation. SELYA, LIPEZ, HOWARD,
Before and Judges. Circuit HOWARD, Judge. Circuit petitions Adil Chedad for review of a Immigration decision of Board of Ap- (“BIA”) peals upholding the order of an (“IJ”) Immigration Judge pretermitting adjustment his of status declaring and him removable from the United States. The basis of the IJ’s deci- sion, affirmance, and its was that Chedad ineligible any be- overstayed period cause he had of volun- tary departure imposed part as closing BIA order proceedings against him.1 voluntary depar- Before the however, lapsed, Chedad had filed a motion with the BIA to reopen those due un- previously available evidence.
The BIA the motion to IJ, who, and remanded the matter to the noted, just ineligible deemed Chedad any further relief he had dis- obeyed voluntary departure order. argues erroneously Chedad that the BIA ruling, affirmed the IJ’s either because the of his motion to tolled the Macarius, Saher J. with whom Law Of- running voluntary departure period, Macarius, fices of Saher J. was on brief for or because the BIA’s allowance of the mo- petitioner. tion stripped or- der of legal significance. deny Palau, A. Attorney, Manuel Trial Civil petition Chedad’s for review. Division, United States Department of Justice, Keisler, with whom Peter D. As- I. General, Attorney sistant and Terri J. Sca- dron, Director, brief, Assistant were on Immigration and Naturalization (“INS”) respondent. pro- Service commenced removal (“the Immigration Nationality 1. The voluntarily Act expense” United States own INA”) alien, provides participation a mechanism for an in lieu of continued in removal subject 1229c(a)(l), Attorney (b)(1) proceedings. §§ the discretion of the Gen- limitations, (2005). depart eral and other “to voluntary departure. to seek Chedad, opportunity of Mo- a native against ceedings 1229c(b). re- elected rocco, 1997, asserting that he had Id. beyond the received a continuance so in the United
mained by the six-month nonimmi- travel docu- permitted that he could obtain valid time *3 him in 1994.2 Chedad leaving the coun- grant purpose visa issued for the ment on counsel the IJ with before appeared try. overstaying 28, his May 1998 and admitted before the IJ reappeared When Chedad a continuance of requested
visa. He also 11, 1999, again for a on June he moved that his ground proceedings of his processing to allow the continuance wife, per- lawful Francisco —a Joanne S. citizenship; IJ application wife’s of the United States —had manent resident Instead, the motion. the IJ again denied as citizenship, well application filed an motion for de- granted Chedad’s behalf, application Chedad’s as visa sixty him leave in requiring parture, 8 U.S.C. ' petition. an See known as 1-130 1229c(b)(2). § days. Id. The IJ also 204.1(a)(1) 1154(a)(l)(B)(i); § n § 8 C.F.R. consequences of the warned Chedad (2006).3 a naturalized If Francisco became order, disobeying the States, then Chedad of the United citizen including opportunity the loss of the immediately eligible ap- would become adjustment immigration status pursue that of an adjustment of status to ply for for a different avenues through several resi- permanent lawful alien admitted for 1229c(d)(l) § years. of ten Id. 1151(b)(2)(A)(i). § dence. See 8 U.S.C. (Supp.2006).4 granted Chedad’s The IJ therefore his appealed the IJ’s denial of Chedad processing continuance to allow for a BIA. for a continuance to the final motion Chedad later spouse’s applications. of his appeal, During pendency pur- continuance for received second 2001, 24, completed the May Francisco Meanwhile, peti- 1-130 Francisco’s pose. 15, 2002, July process. On naturalization approved on behalf was tion on Chedad’s pending,' Chedad filed appeal still 21,1998. October BIA, citing a motion to remand with for naturalization application Francisco’s spouse newly minted status as proceed- when removal pending still citizen, the prior as well as 4, March resumed on ings against Chedad petition. of his 1-130 approval another sought Though 1999. and appeal The BIA dismissed Chedad’s ground, the IJ re- on that continuance in an order motion to remand denied his fused, him choice between the giving First, 25, 2002. an on October of removal and entry of a final order issued applicable 2003, clarity, to the poses we will cite and the INS was abolished In March currently codified. newly regulations as to the were transferred its functions Security. Department of Homeland formed 2002, 2006, Congress 8 U.S.C. Security amended Act of Pub.L. 4.In See Homeland 107-296, 471(a), 1229c(d) 451(b) Against through § the Violence §§ 116 Stat. and No. 2205, Department Justice Reauthori- and Women 2195 and codified 271(b) 291(a) 109-162 (Supp.2006). 2005. Pub.L. No. §§ For con- zation Act of (2006). This responsible agen- § Stat. sistency, we will refer amendment, part, renumbered the throughout opinion. in relevant cy our as "the INS” 1229c(d) § as penalty BIA, 1229c(d)(l). clarity, purposes we For Chedad’s before 3. Since number subsection will cite to the current regulations have recodified many of its been throughout opinion. pur- changing their For without substance. BIA ruled that that, the IJ not abused her determined because Chedad had discretion in denying Chedad’s final re- failed to leave the United States as re quest for a continuance of the removal quired, ineligible he had become for ad Second, proceedings. the BIA denied the justment by operation status of 8 U.S.C. motion to remand 1229c(d). because was unaccom- rejected The IJ Chedad’s ar panied by an (1) of guments that the BIA had nullified its Chedad’s status to that of an alien admit- voluntary departure granting his permanent ted for lawful pursu- residence (2) of his 1255(a), ant to 8 22, 2002, motion to reopen, on November 1003.2(c)(1). BIA rules. 8 C.F.R. had tolled running of the voluntary *4 granted BIA thirty days Chedad from the departure period. rejecting In argu these date of its order to depart the country ments, Shaar, the IJ relied Matter of voluntarily, repeating the IJ’s admonition (BIA 1996), 21 I. & N. Dec. 541 aff'd, 141 consequences about the failure to do (9th Cir.1998), F.3d 953 which held that so.5 to reopen motion does not itself toll voluntary departure period. 22, 2002,
On November expi- before the pretermitted The IJ therefore Chedad’s ration of the departure period, application adjustment of status and Chedad filed a motion with BIA ordered him removed from the United reopen the proceedings, again as- States. serting that he had eligible become adjustment 1255(a). § of status under appealed, Chedad repeating argu- filing,
This
made
ninety days
within
of the ments he had made before the IJ.
In
BIA’s
required by
INA,
decision as
8 particular, Chedad noted that Shaar had
§ 1229a(c)(7)(C)(i),
and its imple-
recently been
by
overruled
the Ninth
menting
regulations,
8
C.F.R. Circuit, which
timely
held that a
1003.2(c)(2),
included the
to reopen
could toll the
depar-
adjustment of status and supporting mate-
period.
v. Ashcroft,
Azarte
394 F.3d
rials that had been omitted from Chedad’s
(9th Cir.2005).
1278,
BIA,
The
how-
earlier motion to remand. Noting that
ever, did not consider itself bound by
Chedad’s motion to reopen “demon- Azarte, or similar decisions from other
prima
strate[d]
he is now
eligible
facie
circuits,
in a
arising
case
within this
status,”
the BIA
court’s appellate jurisdiction, and there-
the motion in an
21,
order dated February
rejected
fore
tolling argument.
Chedad’s
2003, remanding the case to the IJ “for As to Chedad’s contention that
the BIA
proceedings consistent with
opinion.”
had
emasculated its
voluntary de-
The BIA’s order made no mention of the
parture
by
granting the motion to
voluntary departure requirement previous-
explained
the BIA
that the latter
ly imposed.
decision
solely
“was based
on the fact
When the proceedings found their way that
had
prima
[Chedad]
established
facie
IJ, however,
back to the
the prior volun-
eligibility for relief and not based on [the
adjudication
order —which Chedad had BIA’s]
of the merits of his
proved dispositive.
claim; also,
The IJ
[his]
had not been op-
satisfied —
5. The
sixty-day
execution of the IJ’s
appeal,
time Chedad filed the
thirty days
stayed
order had been
pending
voluntary departure
time remained at the
1003.6(a).
appeal.
Chedad’s
See 8 C.F.R.
time of
the BIA’s decision.
See id.
thirty days
already
1240.26(f).
Because
expired
circuits,
prevailed in a number of
has
issues were ment
so no
INS]
posed
[the
Gen.,
Attorney
Ugokwe
see
for relief.”
eligibility
[his]
to rebut
raised
(11th Cir.2006);
1325,
Kanivets v.
ruling
the IJ’s
upheld
BIA therefore
(3d
330,
Cir.2005);
Gonzales, 424 F.3d
from seek-
disqualified
that Chedad
950,
Gonzales, 407 F.3d
Sidikhouya v.
on his dis-
based
of status
ing adjustment
(8th
Azarte,
1289,
Cir.2005);
at
394 F.3d
or-
voluntary departure
obedience
others,
see Dekoladenu v.
but has failed
considered
had not been
fact that
der —a
(4th
Gonzales,
Cir.2006);
459 F.3d
deciding to re-
previously
BIA in
by the
Gonzales,
445 F.3d
Banda-Ortiz v.
petitioned
then
Chedad
mand the case.
(5th Cir.2006).
now consider the
for review.
this court
question.
that the
argues
petition,
provi-
voluntary departure
reliance
the IJ’s
The INA’s
mistakenly upheld
BIA
important part
the smooth
plays
order as
sion
an
immigration
country’s
further
functioning
disqualifying him
basis for
DaCosta,
See,
449 F.3d
e.g.,
jurisdiction
procedures.
over such
relief. We
U.S.C,.
1252(a)(1),
50;
Bocova
under 8
petition
*5
(1st Cir.2005). Subject to a number of
order of re-
“review of a final
265
provides
General, at
Attorney
jurisdiction-
the
moval,” notwithstanding the
qualifications,
1252(a)(2)(B)(i). discretion,
request
may grant
§
an alien’s
provision of
stripping
(1st
voluntarily, ei-
depart
F.3d
the United
States
DaCosta
Cir.2005)
commencing deportation
jurisdiction
over
in lieu of
(exercising
ther
conclusion of
of
or
the
those
ruling
that violation
BIA’s
1229c(a)(l),
§§
ineligible
8 U.S.C.
proceedings.
rendered alien
departure order
(b)(1).
perspective, vol-
BIA did
From the alien’s
of status
adjustment
benefits,
claim).
certain
untary departure offers
adjustment
not reach merits of
penalties
the
attend-
among
avoiding
them
BIA erred
that the
contends
Chedad
include five- or
deportation,
which
ant
(1)
of his
refusing to treat
seeking
readmission to
ten-year bars
voluntary depar
tolling the
1182(a)(9)(A)(i), (ii);
country.
§§
Id.
(2)
of the
or
ture
allowance
period,
Bocova,
gov-
& n. 1. The
The
motions to
removal proceedings is also restricted.
Id.
joint
effect of
provisions
these
1229a(c)(7).
Such motions must be
practically availability
foreclose the
based on material evidence that “was not
to reopen
motions
in most cases where the
available and could not have been discover-
alien has received voluntary departure.
presented
ed or
at the
hearing,”
former
observes,
As Azarte
even an alien who
including “circumstances that have arisen
reopening
seeks
at the outset of the volun
subsequent
hearing”
which bear on
tary departure period
hope
has little
eligibility
alien’s
for discretionary re-
receiving a decision before
expiration
1003.2(e)(1).
lief. 8 C.F.R.
An alien
deadline. 394 F.3d at
ordinarily may
only
file
one such motion
If the alien defies the voluntary
after the
close
proceedings. 8 U.S.C.
remaining in the Unit
1229a(c)(7)(A).
Furthermore,
and of
ed States pending action on the motion to
particular
here,
note
a motion
reopen, the alien will
automatically
be
cut
“shall be
days
within 90
filed
of the date of
*6
off from a number of
avenues
relief
an
removal,”
administrative order of
sub-
operation
1229c(d)(l),
§of
including,
in
ject
to certain exceptions inapplicable to
cases,
many
very
relief he or she
1229a(c)(7)(C)(i).
§
Chedad. Id.
sought reopening
ie.,
pursue,
to
adjust
Those courts holding that a timely mo ment of
hand,
status. On the other
if the
reopen
tion to
suspends
running
complies
with the
leaves,
order and
the voluntary departure period
per
the BIA will treat
the motion as with
ceived
conflict
between
drawn, also precluding any relief.
8
§ 1229a(c)(7)(C)(i), which
ninety
allows
1003.2(d).
§
C.F.R.
Azarte and
proge
its
days to file a motion
to
and
“
ny reason that this
‘Catch-22’ situation”
§ 1229c(b)(2), which limits voluntary de
calls for tolling the voluntary departure
parture granted at the close of removal
period while the alien awaits the BIA’s
proceedings
just
to
sixty days. Ugokwe,
ruling
timely
on a
to reopen.
motion
Ka
1331; Kanivets,
9. Amicus 1229c(d)(l). But this Id. at 598. Gonzales, §of effect" in Orichitch decision Circuit's holding DaCos- that, holding is odds Cir.2005), (7th held which 421 F.3d See, e.g., apply. ta, we bound are which after reopen filed by granting a motion Malouf, 466 F.3d voluntary departure set deadline Cir.2006). "dispos[ed] BIA lapsed, had order IV. granted voluntary departure, but before will, she departs, extraordinary absent cir recognize that the consequences of cumstances, be unable to obtain a decision our decision though are harsh: Chedad’s from the BIA before required is she citizen, wife is an American he must leave depart. Gonzales, See Dekoladenu v. States, the United and cannot adjust- seek (4th Cir.2006) (“As prac ment of his immigration own status for matter, tical the BIA rarely will reach a Moreover, another ten years. this out- decision on a motion to reopen before the come presumably could have been avoided end of the voluntary departure period.”); if Chedad’s motion to remand the case on Banda-Ortiz v. the basis of newly his wife’s acquired citi- (5th Cir.2006) (Smith, J., n. 5 dissent zenship, he filed before the volun- ing) (describing the backlog of cases be final, order became BIA); fore the 2006 EOIR Stat. Y.B. T2 been accompanied by petition his for ad- (stating that in year 2006, fiscal the BIA justment of required status as regu- 9,256 received motions to about Nevertheless, lations.10 neither the BIA’s 23% of the total appeals number filed deny decision to the motion based on this with the BIA in year). Once she technical misstep, nor quality of Che- departs, the alien’s motion reopen dad’s performance, counsel’s are before us. withdrawn, and the limitation of one mo petition Chedad’s presents only questions tion per prevents statutory re-filing after de interpretation which we have parture. 1003.2(d). If, C.F.R. resolved against him. like petition Chedad, the alien review is does not depart by therefore denied. expiration of departure peri So ordered. od, any relief will be denied due to her depart, LIPEZ, failure even if the motion to Judge, Circuit dissenting. reopen 1229c(d) is granted. 8 U.S.C. Congress passed the Illegal Immigration (stating that a depart failure to within the Reform and Immigrant Responsibility Act voluntary departure period will result (“IIRIRA”), 104-208, Pub.L. No. 110 Stat. ineligibility “for a years of 10 ... (1996), containing both any relief,” [for] further including, inter departure provision, 1229c, alia, removal, cancellation of the motion provision, 8 U.S.C. status, and change of nonimmigrant 1229a(e)(7), seemingly unaware of the classification). Thus, it is effectively im conflict it was creating for those aliens who possible for an alien who receives volun are voluntary departure and wish tary departure to any obtain relief through to exercise their statutory right to file a the motion to reopen process, despite the motion to reopen. I respectfully disagree seemingly all-inclusive textual al with the majority’s resolution of that con- lowing such motions. flict. As the majority acknowledges, an alien Although majority acknowledges who files a motion to conflict, being after this Congress finds that intend- sentiment, Echoing sug- ing fact, dissent years.” relief for ten the ten- gests that Chedad's case illustrates the impor- year bar on relief arises from a mistake of a treating tance of motion to tolling different failure character —Chedad’s to com- period, ply because "with with the despite mistake, only one minor he will be undisputed appreciation of the conse- country leave the precluded and is quences. from seek-
67 whole, rather aas statute the to examine to provision departure voluntary the ed my piece. single on a focusing than reopen to the motion over precedence take shrift gives short majority view, panel the interpre- majority’s the Under provision. addition simultaneous to IIRIRA’s allowing “an statutory text tation, the and, there- reopen, to a motion file right to limita- or restriction alien,” further without of component for that fore, to account fails reopen, to motion tion, file a to Congress’ its assessment the statute only to applies 1229a(c)(7)(A), in effect intent. and apply not do who aliens those excep- unper- writing effectively an I find voluntary departure. Insteád of receive majority reopen to the motion into the cited tion the reason suasive follow the I would grounds, intended Congress dubious such that insistence its that a hold courts and circuit majority of the statute. reading of expira- before the filed to motion in- Congress that asserts majority period, au- departure voluntary of the tion the limitations on the tended period running of that the tomatically tolls enforced, strictly be to period departure See the motion. BIA resolves until the to right alien’s of an expense at the even 1278, 1289 Ashcroft, 394 F.3d v. Azarte the reopen, because to motion file a (“The Cir.2005) interpretation BIA’s (9th to the voluntary departure importance reopen provi- to motion the deprives ... immi- country’s of the functioning “smooth avail- eliminating the meaning sion of ma- Relatedly, the procedures.” gration those motions to ability of such a number made IIRIRA that *11 68 authority
of and extend (9th de- Desta v. 741, Ashcroft, 365 F.3d parture,” intent). contrary to Congress’ Cir.2004) (defining stay a of voluntary de parture as “stopping the clock from run statutory
The
provisions
two
at issue
ning,” but noting that a stay does
inescapably conflict,
here
creating a cer-
clock”);
“add[
tainty
]
more time to that
Lopez-
the strict application of one
(7th
Chavez Ashcroft,
650,
will distort
the other.
383 F.3d
Although
Cir.2004)
majority’s
approach enforces a
(“Staying
literal
a
reading of the voluntary departure provi-
order merely tolls the voluntary departure
sion, it
so
effectively
does
rewriting the
period;
stay
...,
after the
expires
plain text of the motion
reopen provi-
clock begins ticking again and the alien
sion. In
conflict,
the face of such a
tolling
has the
days
balance of the
left which to
way
offers a
of harmonizing the conflicting leave
country.”).
The distinction be
statutes
of choosing
instead
between them.
tween a
or
stay
tolling
period
and an
Tolling ...
accords with all of Con-
extension
period
is widely recog
gress’s objectives in IIRIRA.
It pre-
See,
nized.
e.g., Johnson v. Railway Exp.
serves
right
of all removable aliens
Inc.,
Agency,
454, 473,
421 U.S.
95 S.Ct.
to file a single, good-faith motion to re-
1716,
(1975)
(Marshall, J.,
L.Ed.2d 295
open after a
adjudicative
final
order of
concurring
part
and dissenting in part)
the BIA. It also allows aliens to seek
(noting that the “common understanding”
voluntary departure without fear of sur-
tolling
“tolling
is that
entails a suspen
rendering other
procedural
avenues of
sion rather than an
period
extension of a
relief. Finally, it does
damage
no
limitations”); Sobers v.
Optical
Shannon
Congress’s desire
place
reasonable Co.,
170,
326 Pa.Super.
473 A.2d
limits on the voluntary departure period:
(1984) (“[A] suspension of proceedings and
time initially
total
allotted for de-
a tolling of time limitations cannot be con
(and
parture
hence the time available to
strued as
equivalent
of an extension of
reopen)
file to
still cannot exceed sixty
time.”). Applying that principle, the toll
days,
limiting
claimants to one mo-
ing approach here does not contravene the
tion to reopen, supported by evidence of
text of
departure provision.
newly-discovered facts, will temper the
Smith,
As Judge
dissenting from the Fifth
frequency and duration
tolling.
Circuit’s
Bandctr-Ortiz,
decision in
ob
Banda-Ortiz,
(Smith,
445 F.3d at
J.,
served, reliance on the doctrine of tolling
dissenting).
does not “undermine”
statutory
text
previously
stated that
tolling simply because the
may
effect
be to
departure period is not le
lengthen the number of
days
calendar
be
gally equivalent to extending it. Bocova v.
fore the
alien is
depart.
Gonzales,
(1st
Cir.2005)
412 F.3d
(Smith, J.,
F.3d at 395
dissenting).
(“A suspension of a voluntary departure
period merely tolls
running
of that We
tolling
invoke the
remedy in our
period;
it.”)
11;
does not extend
see
system
also
justice
where the strict applica
In
Cir.2005).
Bocova
we held that an
rejected
case we
the claim
alien who
has received
that we
reinstate a voluntary departure
could
judicial
and who seeks
period
review of the BIA's
expired
appeal
while an
resolution of his case
court;
must file a
pending
motion seek-
ability
our
stay
ing
stay
before
departure period
is limited to cases in which
departure period expires
explicitly
and must
stay
requested
formal
before the
request
stay.
268-69
ends. Id.
*12
departure.
not receive
do
who
particular
a
for
allotted
the time
of
tion
is
however, this observation
view,
my
unjust
or
to unfair
filing leads
or
action
problem
a restatement
simply
Bank
Dime Sav.
Salois
See
of
results.
(ob
Cir.1997)
of it.
(1st
a resolution
20,
N.Y.,
F.3d
law, equitable
federal
“under
serving that
tolling
the
to
responds
also
majority
The
limitations
of
to statutes
applied
is
tolling
no
has
that Chedad
by saying
approach
maintain
or to
results
unjust
prevent
‘to
reopen
to
a motion
to file
“statutory right”
”
King
(quoting
a statute’
integrity
the
provide such
does not
the statute
(9th
910,
Cir.
F.2d
California,
receive
who
for those
right
a
rem
the
that
1986))).
suggesting
am not
I
a
it:
puts
majority
the
As
departure.
classic
in the
tolling,
equitable
edy of
the
as
only as broad
is
“statutory right [ ]
applies
remedy
That
sense,
here.
applies
it.” Howev
has made
question
statute
“extraordinary circumstances”
the
when
statute,
the
text
plain
the
er, under
from the
relief
require
case
particular
a
has
who
every other
Chedad, like
Here, we are
aof
statute.
limits
time
a
to file
removed,
right
has
ordered
been
larg
a much
unfairness
avoid
to
trying
he
long as
does
reopen, so
to
single motion
conflict
the unforeseen
from
er scale
’
final
days of the
sixty
within
so
differ
that
But
statutory provisions.
two
1229a(c)(7)(A). The
8 U.S.C.
removal.12
argument
strengthens
only
ence
to
“right”
no
has
that
statement
derived
tolling remedy
of a
not from
reopen
to
derives
a motion
file
designed
are
that
principles
equitable
from
major
statute,
from
but
text of the
statutory
aof
integrity
preserve
to
intent
legislative
understanding of
ity’s
that
harshness
avoiding the
while
deadline
the Ninth
Like
statute.
that
underlying
application.
unyielding
its
result
can
that Con
proposition
Circuit, I think “the
tolling ap-
that
asserts
majority
The
the tradi
codifying
expressly
while
gress,
Ninth
fully by the
most
articulated
proach,
sub
intended
to
of motions
tion
prem-
is
Azarte,
Circuit
availability in
their
preclude
silentio to
“motions
notion
ised
Azarte,
cases,”
number
significant
where
proceedings
only in
available
are
implausible.
is
I
granted.”
has been
indicia
has
case
all
Although this
reasoning of the
or
the text
nothing in
find
interpreta-
statutory
over
debate
classic
reliance
suggesting
opinions
circuits’
other
implica-
world
real
tion,
has substantial
The statute
premise.
a dubious
such
2006, immigration
year
In fiscal
tions.
unsuc-
been
have
who
all aliens
says that
to over
courts
may file
cessful
Ql.
Y.B.
Stat.
EOIR
22,000 aliens. 2006
any refer-
reopen, without
single motion
is unavail-
tolling
dispute
no
is
There
voluntary depar-
receive
who
to those
ence
file their
fail to
who
for aliens
able
I
agree
do not.
who
those
expiration
prior
be-
no conflict
is
there
majority that
supra
See
deadline.
voluntary de-
and the
provision
tween
have
who
aliens
those
Importantly,
3.
note
aliens
to those
applied
parture
statutorily
is
departure period,
tary
1229a(c)(7)(C)(i),
statute,
v. Gon-
Naeem
days. See
sixty
limited
mo-
ninety-day deadline
imposes a
Cir.2006).
zales,
37-38
However,
previ-
we have
reopen.
tions
situation,
Therefore,
in Chedad’s
aliens
vol-
received
who have
aliens
ously
held
motions
deadline
the effective
their
file
departure must
untary
days.
sixty
only
the volun-
expiration of
received
departure already
appeal
was pending, his wife’s citizenship
been
to show good moral charac-
approved.
appeal
hisWith
still before
ter for
years
five
and the
absence
BIA,
Chedad filed a timely motion to
convictions for aggravated felonies or
remand, asking that his case be sent back
*13
crimes of moral turpitude. See 8 C.F.R.
IJ,
before the BIA had decided the
§ 1240.26(c)(1);
Banda-Ortiz,
see also
445 appeal, so that he
adjust
could
his status in
(Smith, J.,
(“The
F.3d at 393
dissenting)
light of his wife’s American citizenship.
result is particularly harsh when
con-
one
Chedad, however, made his one
only
and
siders that
it operates to disadvantage
procedural error at that time. His motion
those aliens
good
whose
behavior has enti-
to remand was
accompanied
not
by peti-
tled them to the solicitude of the law of
adjustment
status,
tion for
regu-
as the
voluntary departure.”).
only
Even if
required.
lations
On the basis of this tech-
small percentage of those
aliens
oversight,
nical
the BIA denied the motion
voluntary departure would
timely
file a
to remand and reinstated the IJ’s volun-
motion to reopen, the majority’s decision
Therefore,
order.
unwisely precludes any possibility of relief
only present
could
evidence of his wife’s
for aliens who might be entitled to such
change in citizenship status through a mo-
despite
relief
the exacting
appli-
standards
to reopen
tion
filed
the BIA. He filed
cable to motions to reopen.
that motion in a timely
BIA,
manner. The
The specific facts of this case illustrate
fact,
granted the motion to reopen, find-
reality.
harsh
Chedad has
been
ing that he had
prima
made a
facie show-
the United States
years,
for thirteen
and
ing of his eligibility
of sta-
has
in immigration
been
proceedings for
tus.13 The BIA sent his case back to the
years,
almost ten
after he overstayed his
J,I who then denied all relief because Che-
six-month non-immigrant visa. At
dad had
country
remained
after the
time the proceedings began, he was mar-
expiration of the voluntary departure peri-
ried to a
permanent resident,
lawful
who
od. If the timely filing of Chedad’s motion
had a pending application for naturalized
tolled the running
sixty-
citizenship, and he has consistently asked
day voluntary departure period, he could
the IJ and the BIA for a continuance so
presented
his case for
relief
the IJ.
his wife’s
could
pro-
be
Chedad has shown
and,
coopera-
cessed
consistent
accordingly, his status could be
tion and compliance
adjusted
with a
that of a
maze
immi-
lawful permanent
gration laws
regulations.
1151(b)(2)(A)(i).
resident. See 8
and
He has
Although
demonstrated
good
his
initially granted
IJ
moral character for
Chedad a
continuance,
a period
of five years
IJ
and
refused to
any
has
been
allow
delays
further
year.
after
convicted of
aggravated
Chedad re-
felonies or
quested and
received
crimes of
turpitude.
moral
departure,
He is married
and
again
asked
for a
continuance. The
an American
now,
IJ
citizen and
after
denied
request
gave
him sixty days
nearly a decade of
navigating
legal
country.
leave
Chedad promptly
system, with only
mistake,
one minor
he
filed an appeal with the BIA. While his will
be
leave
the country and is
”
prevail
In order to
on a motion to
Ashcroft,
evidence.’ Fesseha v.
an
satisfy
requirements:
alien must
two
she
Cir.2003)
Abudu,
(quoting INS v.
must
‘prima
“establish a
facie case for the
94, 104,
U.S.
S.Ct.
years. failure by the over many times
peated statutory provi- conflicting
harmonize a sensible case in issue in
sions manner.
fair dissent. respectfully
I *14 America, STATES
UNITED
Appellee, RIVERA-HERNÁNDEZ,
Miguel
Defendant, Appellant.
No. 06-1355. Appeals, Court
First Circuit. 4, 2007. April
Heard 3, 2007. Aug.
Decided notes jority more approach An voluntary, departure. volun- existing previously the changes to tois as a whole statute the consistent with limiting the rules, including when period departure toll increas- period departure length of expiration alien, to the an who on aliens imposed the sanctions ing timely files period, voluntary departure of the terms with comply to failed interpreta- an Such reopen.... agreement. departure statutory provi- both would tion effectuate conclusion majority’s agree omitted)); also (footnote I see sions.” point that changes Gen., reinforce F.3d that Att’y these v. Ugokwe U.S. im a particularly is departure Cir.2006); Gon- (11th Kanivets sys Cir.2005); immigration (3d our 335-36 component zales, portant However, trying resolve F.3d Sidikhouya tem. Dekoladenu, here, we cannot Cir.2005). raised see (8th But statutory conflict vol is not the BIA that (holding modifications IIRIRA’s at 505 look to giving- without to toll scheme untary departure required is timely adoption IIRIRA’s when period attention equal statutory construction Ban See provision. filed the motion provisions J., narrower (Smith, that dis requiring da-Ortiz, canon provision) (here, “voluntary depar (agreeing senting) conflicting general over precedence between take bargain struck represents pro- motion to (here, the object provisions but government,” an alien Banda-Ortiz, 390-91 F.3d at vision)); the terms search limiting “to ing is the BIA (holding confer statutory provisions bargain be- toll parties”). only one of ring benefits tension “in be tolling would cause to discern way words, best In other length to, limits with, opposed if not IIRIRA passed when intent Congress’