Mahmood v. HolderMahmood v. Holder
- Reporters:
- , ,
- Before:
- Winter, Walker, Calabresi
Usman B. Ahmad, Long Island City, N.Y., for Petitioner (on submission).
Gregory G. Katsas, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Senior Litigation Counsel, Matt A. Crapo, Trial Attorney, Office of Immigration Litigation,
CALABRESI, Circuit Judge:
Tahir Mohammad Mahmood, a native and citizen of Pakistan, was granted voluntary departure. Prior to the expiration of the period for voluntary departure, but more than ninety days after the final order of removal was issued, Mahmood filed a motion to reopen his removal proceedings based on his marriage to a U.S. citizen. The immigration judge (“IJ“) denied the motion both as untimely and because petitioner, having failed to depart within the period for voluntary departure, was barred from seeking adjustment of status. The Board of Immigration Appeals (“BIA“) affirmed the dismissal on the same grounds. Mahmood petitions this Court, arguing, inter alia, that the Agency erred in failing to reоpen his removal proceedings sua sponte. For the reasons that follow, we conclude that because (a) the Agency incorrectly assumed that Mahmood‘s failure to depart timely from the United States conclusively barred an adjustment of his status, and, on this basis, (b) may have declined to consider whether to exercise its discretionary sua sponte authority, it is appropriate to remand to the Agency for reconsideration.2
Mahmood arrived in the United States on November 20, 1998 on a non-immigrant temporary visa. On May 2, 2003, the Department of Homeland Security (“DHS“) initiated removal proceedings against Mahmood.
On July 10, 2003, Mahmood married Juanita Lopez, a U.S. citizen. Lopez thereafter filed a visa Petition for Alien Relative (Form I-130) with DHS on behalf of Mahmood. Mahmood simultaneously applied for adjustment of status and employment authorization. On April 4, 2006, DHS denied Lopez‘s visa petition, concluding that Lopez and Mahmood failed to show that their marriage was not “entered into for the purpose of evading the immigration laws.” See
On February 14, 2007, prior to completion of Mahmood‘s removal proceedings, the Immigration Judge (Chase, I.J.) granted Mahmood 120 days, or until June 14, 2007, to depart the United States voluntarily. The IJ entered an alternative order of removal to Pakistan.
On May 14, 2007, shortly after his divorce from Lopez was finalized, Mahmood married Brittany Adair, a U.S. citizen. Thereafter, on June 5, 2007, Mahmood filed a motion to reopen his removal proceedings, assеrting that he was eligible for adjustment of status as a result of this marriage. Mahmood explained that Adair had filed a Petition for Alien Relative (Form I-130) on his behalf on May 30, 2007. Mahmood‘s motion to reopen requested “that the Court Reopen these proceedings based upon marriage to а U.S. Citizen and set a date for a master calendar hearing for [Mahmood] to provide to the Court proof of his eligibility to Adjust Status.” Mahmood‘s motion to reopen also requested a stay of voluntary departure, and stated Mahmood‘s belief that the filing of a motion to reopen would automatically toll the date for his voluntary departure. In an affidavit submitted with his motion to reopen, Mahmood asserted that
On June 19, 2007, the IJ denied Mahmood‘s motion to reopen for two reasons: (1) Mahmood‘s motion to reopen was untimely, and (2) Mahmood was barred from adjusting his status for ten years because he had failed to depart the United States by June 14, 2007. In re Mahmood, No. A95 961 997 (Immig. Ct. N.Y. City June 19, 2007), aff‘d, No. A95 961 997 (B.I.A. Nov. 29, 2007). The IJ relied on
Mahmood appealed the IJ‘s decision to the BIA, arguing that the IJ erred in denying his motion to reopen. In his appeal, Mahmood focused primarily on the IJ‘s conclusion that failing to depart the Unitеd States by June 14 barred his adjustment of status. Mahmood maintained that his filing of a motion to reopen prior to the expiration of the period of voluntary departure tolled that period until the motion could be adjudicated. Mahmood also argued that the IJ erred in refusing to reopen his proceedings sua sponte.
On November 29, 2007, the BIA, in a one-judge per curiam order, dismissed Mahmood‘s appeal. In re Mahmood, No. A95 961 997 (B.I.A. Nov. 29, 2007). The BIA recounted the two bases articulated by the IJ for denying the motion to reopen, and then stated, “We are in agreement with the decision of the Immigration Judge . . . .” The BIA also noted that the Supreme Court had granted certiorari to decide the question of whether the filing of a motion to reopen automatically tolls the voluntary departure period. Pending that decision, however, the BIA observed that Matter of Shaar remained good law in the Second Circuit, and so Mahmood‘s filing of a motion to reopen did not toll the period of voluntary departure.
“Where, as here, the BIA adopts the IJ‘s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). We examine de novo questions of law and applications of law to undisputed fact. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir. 2007).
We review the denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). But we are without jurisdiction to review the Agency‘s failure to reopen removal proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam); see also
An alien seeking to reopen proceedings must file an appropriate motion to reopen within ninety days of the issuance of a final administrative order of removal. See
The untimeliness of a motion to reopen may be excused in certain circumstances. See
Mahmood petitions this Court for review of the Agency‘s decision, arguing in part that the Agency erred in failing to exercise its sua sponte authority to reopen his removal
What, then, is the correct legal framework to apply to Mahmood‘s motion to reopen his immigration proceedings?
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546, an alien granted voluntary departure must depart within the period prescribed by immigration officials. See
Last year, in Dada v. Mukasey, 128 S. Ct. 2307 (2008), the Supreme Court rеjected the claim that the filing of a motion to reopen automatically tolls the period for voluntary departure. Id. at 2319 (finding no “statutory authority” for petitioner‘s argument that a motion to reopen automatically tolls the voluntary departure period). The Supreme Court also recognized, however, that individuals subject to voluntary departure must retain the right to pursue a motion to reopen. Id. But, under the implementing regulations, departure from the United States effects a withdrawal of a pending motion to reopen. See
Accordingly, “to safeguard the right” to move to reopen, Dada held that “the alien must be permitted to withdraw, unilaterally, a voluntary departure request before the expiration of the departure period, without regard to the underlying merits of the motion to reopen.” Dada, 128 S. Ct. at 2319. The Supreme Court explained that, in permitting an individual unilaterally to withdraw from voluntary departure, the “alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure” (but lose the right to move to reopen), “or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion” (such as the right to seek such a reopening of removal proceedings). Id. at 2319-20.
Dada did not answer the question of precisely what an alien must do to withdraw from voluntary departure. In Dada, the petitioner had filed both a mоtion to reopen and a motion to withdraw from voluntary departure. Id. at 2312. Mahmood‘s motion to reopen, by contrast, was accompanied by a request for a stay of departure and a statement that, had he understood the consequences of voluntary departure, he would not have agreed to it. Whether this sufficed to constitute a withdrawal from voluntary departure is, to date, an open question in this Circuit.
The Executive Office for Immigration Review (“EOIR“)—since Dada, but on the basis of a proposed rule that preceded Dada—has issued a rule stating that the filing of any motion for reconsideration or reopening automatically terminates voluntary departure. See Voluntary Deрarture: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 73 Fed. Reg.
The question of what an alien who is in Mahmood‘s position—having indicated that he wishes to withdraw from voluntary departure in the period prior to both Dada and the amendment to
The error was more than understandable because Dada had not yet issued at the time of the BIA‘s or IJ‘s decision. But it was error nonetheless. We therefore vacate the BIA‘s order,
For these reasons, we GRANT the petition for review, VACATE the BIA‘s order, and REMAND the case to the BIA for further proceedings consistent with this opinion.