Rene Adan Contreras-Aragon v. Immigration and Naturalization Service

1088 way gener stantially

fоr their solution which will quo to the status if ante” ally prevails accord the variant with needs and de union on its breach of contract parties.” sires of the claims in United Steelworkers arbitration. Id. at 1239. We Co., Navigation v. Warrior & 363 therefore remand to the district court so Gulf 1347, 1352, U.S. preliminary injunction may L.Ed.2d that the be dis- (1960). permitted “A rule that an solved. grievance sidestep individual to available part We affirm the of the district court’s procedures would cause arbitration to lose dismissing Local 246’s claims that effectiveness, most ... as well of its drug-testing program SCE’s violates the tenet of a, eviscerate central federal labor- California Constitution because the state contract under 301 that it is the law action preempted by causes of are section arbitrator, court, not the who has the re part 301. We reverse the of the district sponsibility interpret the labor contract finding court’s order jurisdiction federal Allis-Chalmers, in the first instance.” over Local 246’s claims for breach of con 220, at at 1916. U.S. S.Ct. tract because Local 246 has failed to ex grievance procedures. haust available complied Because Local 246 has not Supreme Court’s in Lingle recent decision grievance procedures, with available —Inc., Norge Magic Chef, v. Division district court could not hear the union’s U.S. -, 100 L.Ed.2d 410 bargain claim for breach of the collective holding. does not affect our See ing agreement jurisdiction even if it shares CALMAT, Laws v. 434 n. 5 Accordingly, NLRB. we reverse (9th Cir.1988). The case is remanded to the part of the district court’s order de court district with instructions to dissolve clining to dismiss Local 246’s claim for preliminary injunction pending resolu of contract. breach dispute through grievance tion of the We conclude that the district court process. issuing preliminary injunction erred in part, AFFIRMED in REVERSED against implementation drug-testing of the part, and REMANDED. program. preliminary injunction A requir ing employer preserve quo the status

pending improper arbitration is absent ei express implied-in-fact promise

ther an or employer Amalga do so. See Greyhound

mated v. Transit Union

Lines, Inc., 1238-39

Cir.) denied, cert. SCE made no Rene Adan fact, promise, express implied either CONTRERAS-ARAGON, Petitioner, preserve quo pend that it would the status Lines, ing Greyhound arbitration. IMMIGRATION AND NATURALIZA- recognized employer’s, that because an al SERVICE, Respondent. TION tering quo generally the status will not process, interfere with the arbitral No. 85-7392.

agreement disputes to submit to arbitration Appeals, United States Court of imply duty “does not on the of the Ninth Circuit. employer preserve quo pend the status Hence, En Argued arbitration.” Id. 1238. arbi Banc and Submitted dispute tration of the will be unaffected June implementation drug-testing pro July Decided gram, see id. at and there there fore is no need for the issuance of an

injunction in aid of arbitration. Further

more, “the situation can be restored sub-

ing practice permit was to an alien afford- ed the voluntary departure by opportunity BIA the depart voluntarily until a fixed time after the issuance of our affirming mandate precisely, tion. More did not end until the days number of after the equal mandate number of for voluntary departure set forth in the BIA’s cases, order. some we elucidated this practice opinions; others, in our Esparza, merely Rosemary J. Centro De Asun- assumed that the alien would be Vista, Cal., opportunity. afforded Migratorios, The INS ac- peti- tos Chula for knowledges long that it has followed the tioner. practice allowing originally grant- aliens Hunolt, Immigration James A. Office voluntary departure ed voluntar- Litigation, Div., D.C., Washington, Civil for ily until a fixed time after the issuance of respondent. However, our mandate. the INS maintains it practice only has followed this when petition

the alien filed a for review within period originally granted. The BROWNING, INS concedes that it has Judge, Before Chief published never announced or this limita- GOODWIN, SNEED, HUG, TANG, tion, it nor has communicated this limita- FLETCHER, PREGERSON, POOLE, deportation tion to aliens at the time of the KOZINSKI, REINHARDT, and grant order and NOONAN, Judges. Circuit The decisions of our court have never made HUG, this distinction. Judge: Circuit discretionary The award of de We took this case en banc to resolve an parture significant for several reasons. concerning affirming issue the effect First, it stigma allows the alien to avoid the deportation provides that also for Second, compulsory ejection. permits voluntary departure. The Board of Immi- the alien to select his or her own destina gration (“BIA”) Appeals found Contreras- But, importantly, tion. most Aragon deportable and the alterna- possibili facilitates discretionary days’ tive relief of 30 volun- ty of return to the United States. Tzan tary departure. panel A of our court af- States, tarmas v. BIA, firmed the order of the but held that (9th Cir.1968), denied, n. 1 cert. voluntary departure period allowed (1969); L.Ed.2d 569 the BIA expired longer had and was no Rosenfield, H. Immigration C. Gordon & Contreras-Aragon. available We voted 7.2a, (1987). Law and Procedure at 7-19 § sponte sua to take the case en banc to voluntarily departs may An alien who re determine whether the affirmance of the immediately, example, turn for as the bene Contreras-Aragon permitted BIA order ficiary immigrant anоf visa based on the voluntarily depart during pendency of marriage to a United States citizen. Con petition 30-day period following and the versely, deported special alien must seek affirming the issuance of our mandate States, permission to return to the United BIA. We hold that it does. 1182(a)(17)(West Supp. see 8 U.S.C.A. § 1987), penalties and face criminal I. so, the failure to do 8 U.S.C. 1326 § panel’s practice decision reversed a II. many years that we have followed with- objection by Immigration Petitioner, out and Natu- Contreras-Aragon, is a citizen (“INS”). long-stand- ralization Service of El Salvador who entered the United deportation BIA’s included was subse- 1983. He April States 30-day voluntary departure provision. charged with de- and apprehended quently un- entry inspection without portability for petition Contreras-Aragon’s to this court 1251(a)(2) (1982). At his der U.S.C. challenged asylum § the BIA’s denial of hearing, held June deportation deportation. its refusal withhold His deportability; he also also court to petition conceded asked the “reinstate” (see 1158(a) the BIA’s sought asylum (see the event court chose affirm the (1982)) withholding BIA’s order. 1253(h) (1982)). immigra- U.S.C. (“U”) requests and judge denied both panel upheld BIA’s deci petitioner deported. ordered refusing asylum sion both withholding deportation. оf Contreras- IJ appealed ruling the of the Petitioner INS, (9th Aragon v. 777, F.2d 789 778 4, 1985, the BIA the BIA. June On Cir.1986). While we serious reserva decision, excep- the affirmed the IJ’s with decision, part tions about that of the we do petitioner days in granted 30 not reach the merits of those This issues.1 voluntarily from the Unit- on re panel’s en banc review focuses the 1254(e) (1982). See ed States. 8 U.S.C. § fusal to “reinstate” the of BIA’s filed July Contreras-Aragon On or, viewed more accu BIA’s decision petition a for review the rately, its retroactive of the termination July 15 the this fell within with court. The alien’s petition for period for six-month panel refused “reinstate” after conclud 1105a(a)(l) by prescribed voluntary departure period review 8 U.S.C. the had § entry prior expired 41 the to the date its decision. but it was after because, prior fol- to a thereon shall constitute a We need address the merits decision not case, lowing appeal, and deci- panel’s this withdrawal of the the initial the first decision in (72-hour) the same petitioner to Mexi- sion in case shall final to the made a brief sortie though appeal immigrant as taken. visa on extent no had been co where he was However, statute, 27, regulations, marriage May by the the and the virtue of his 1986 however, must, by apply cited do not to the We deter- cases the INS American citizen. present petitioner was to volun- the case. This is not mine whether tary departure entitled circumstances of country trip departed made to Mexico alien when he his case in which the the visa, appealing, prior as that affects decision on to obtain the determination without the Rather, validity Contreras-Aragon he was the visa. As we hold that a brief made departure original the first entitled to when to Mexico three-member visit after case, departure May panel we deem his panel heard its decision on of our court rendered "voluntary”; deportation 12, left had he under a en Subsequently, we took this case panel’s he not have able to return original would been erroneous banc to correct the United voluntary depar- States. termination request us to take The did ture. suggests belatedly INS that Contreras-Ar- The very likely unaware of the case en banc and was departure jurisdiction agon’s us of of this divests country. development he left the He INS, when 724 F.2d matter. Thorsteinsson v. See 1205, not now the merits of the 1365, denied, does contest (9th Cir.), cert. 1367 determination; bility before us is (1984); issue L.Ed.2d Hernan 81 345 Justice, legal the uncontested effect of Dept. v. United Stаtes dez-Almanza Thus, unique (9th 1976). order. circumstanc- Cir. 103 deprive jurisdic- us of regulations es of his tion, do not the statute and the It is true that that the drafters deportation cannot conceive preclude review of orders legislation contemplated seeking the situation alien review has in cases in which the 106(c) urged by the the statute as departed hand. To construe from the United States. Section (the Immigration amounts no less than sterile formalism. Act of the Naturalization Thus, inappli- jurisdiction "Act”) provides we find the limitation that we shall not review departed sponte decision to correct to our sua deportation if the "has cable States_” 1105a(c) simply panel. We vacate our error of earlier given vol- (1982). the BIA’s provision, C.F.R. the erroneous construction with this Consistent panel by (1988) untary departure and afford order 3.4 states: have here- person which we Departure that order construction from the United States of customarily given orders. proceed- other similar subject deportation tofore is [of] who opinion panel withdrawn. ings subsequent appeal but We also order the of an 306, 313, 315, Contreras-Aragon, 789 F.2d at 779. 84 S.Ct. See L.Ed.2d 281 panel implied voluntary depar that a deportation result of the hear- ing, including discrеtionary ture runs from the time award is determina- tions, initially expires and granted; deportation it then is one final order of re- the alien’s of the de appeals. unaffected viewable courts of holding portation conflicts order. hearings deportability and on an Ninth cases in which a line ‍‌​​​‌‌​‌‌‌‌​‌​​‌​​‌​‌‌‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌​​​‍of Circuit application have, discretionary relief expressly provided court has that when as a matter of traditional prac- uniform order timely review tice, proceeding been held in one before sought voluntary departure period orig special officer, inquiry the same result- inally granted by the BIA does not termi ing in deportation. one final nate until after the issuance of the man added). (emphasis Id. at 84 S.Ct. at 310 affirming the BIA. date See Benitez-Men It is clear that a concerning determination INS, (9th Cir.1983) dez v. 760 F.2d voluntary departure is one of those deter- (as 1985); INS, Abedi-Tajrishi amended v. during minations made (9th Cir.1985); 752 F.2d Shahla hearing that form a of the final order INS, Cir.1984); De deportation, id. at 84 S.Ct. at 313. INS, Reynoso v. 627 F.2d special The pains point Court took out Cir.1980); INS, 457 F.2d Khalil that “determinations of deportability” are (9th Cir.1972); Aiyadurai accord v. distinguished category from the broader of INS, (8th Cir.1982). deportation,” “final orders of which in- analysis The for this result has not been cludes other determinаtions in the clearly expressed, and there proceedings. is some confu- See id. at 84 S.Ct. Thus, concerning operation sion the of the volun- important emphasize at 313. it is tary departure provision deportation in a arewe here concerned with one final “reinstate,” order. The use of the word deportation order of that includes a deter- voluntary departure orig- concerning with reference to mination BIA, inally granted by the creates of jurisdictional provides section also matter, problem. the As we view the in stay deportation upon for an automatic of BIA, affirming the order of the we affirm petition of a for review. See 8 total, including grant the order in of 1105a(a)(3)(1982). By U.S.C. providing § voluntary departure, period for which stay, Congress automatic eliminated the expire does not until after the date the discretionary need for aliens to seek relief deportation operative by becomes deportation during pendency of the issuance of our mandate. We are not petition for review in our court. We “reinstating” in the sense that we are exer- Congress cannot conceive that made such cising any properly by discretion exercised provision require intеnded to aliens BIA; rather, simply affirming we are granted voluntary departure to seek re- deportation provision the order of with its peated extensions of the voluntary depar- discretionary for alternative relief. director, period ture from the district preserve voluntary

order to the award of III. departure until our final determination on deportation order. Rather it seems evi- 106(a) Act, Section 8 U.S.C. dent to us that the of de- 1105a(a) (1982), provides for re § parture throughout remains effect deportation. view of final orders of It period of our review and for whatever addi- jurisdiction vests exclusive for such review period tional the BIA afforded the alien in Supreme the courts of the order under review. jurisdiction Court has held that this ex unqualified tends to all matters decided in the course An affirmance of the order deportation proceeding, including of a deportation consequently approv- de of entails requests discretionary grant terminations on departure. for al of the INS, 217, 229, 232, approach relief. Foti v. This is consistent with Foti. departure ly, period com- There, was faced with Supreme Court upholding refusal the mences when our mandate question whether suspension grant a issues. Attorney General to ‘final of those orders “one deportation IV. review of which direct deportation’ Appeals is authorized under Courts ap- suggested There are two other Foti, 106(a) 375 U.S. at of the Act.” proaches govern when the 106(a) juris- vests at Section ends. voluntary departure commences and appeals for review of in the court of diction their point We review these detail to out orders ... made final “all weaknesses. to administra- pursuant aliens against ... 242(b) of proceedings under section tive Approach. A. The Panel’s Act_” 1105a(a). See that the panel’s decision concluded Though by its own terms granting voluntary expired arising to orders out is limited jurisdiction entry depor- after the of the BIA’s proceedings, 242 deportation of section panel apparently be- tation order. jurisdiction include extended the Court him- to allow the alien to avail lieved that discretionary relief. regarding decisions pe- original voluntary departure self at 313. Foti, our commencing entry riod from the adopt only does rule we conform Not affirming mandate Foti, analysis in Supreme Court’s a new granting would be tantamount past our treatment date, consistent with invading is also thus See, question. e.g., Abedi-Tajrishi, Attorney discretion resеrved Gener- Khalil, Shahla, and Reynoso, De Benitez- designees. and al cases, In all we affirmed of those Mendez. Realistically, panel’s would decision including the deportation the final order of voluntary force to choose the alien between previously of award taking departure appeal, and because affirmance, BIA; by our granted voluntary would departure of voluntary depar- of number could expire appellate review before by the BIA com- initially afforded ture ap panel's The possibly be concluded. to run. menced grant of volun proach condition the would relinquish tary on the alien’s departure the approach INS claims right judicial to review. authority usurp ment of his by adopt exceeds our this, recognized panel apparently because delegated to the discretion a from one Contrary quoted approval statement Attorney with General. unpublished decisions of the BIA’s assertions, approach square falls INS’s voluntary de authorizing judicial body. purpose our as a ly within function “[t]he deportation is to effect grant voluntary parture in lieu affirmatively do not We fur departure without prompt grant previ the alien’s review departure, the Service.” Contreras- ther authority Our trouble ously made the INS. (quoting n. 3 Aragon, 789 F.2d 779 discretionary beyond relief is this review unpub (August 1969 grant, Wang Ching Fui reviewing In we are challenge.2 decision)). This the serious us, raises lished is before follow simply reviewing what departure voluntary question of whether final guidance that review a ing Foti’s induce the enticement to can be as an encompasses used review judicial forego review. discretionary relief. Natural- concomitant (4th Cir.1986) (reviewing period authority a F.2d 1522 to review refusal We have inquiry departure). in those departure, and also to review its discre- abused voluntary depar is whether BIA given instances the amount time Here, the made decision. time it abuse at the We for an of discre ture. review both uncontested, INS, voluntary departure is award v. F.2d 802 tion. See Villanueva-Franco 327, 1986) (reviewing of the final order but forms a denial of Cir. 328-29 INS, voluntary departure); Cruz-Lopez v. tion under review. 802 244(e) question, impor- it is answering of the Act is vital. It well this types 242(b) two distinguish purpose be the of section to encour- tant to granted may be under the age the alien before institution of authorized by section Act. The first deportation proceedings further “without Act, 1252(b)(1982). 242(b) Voluntary depar- trouble to the Service.” Attorney vests the General This section 242(b) ture under section is available to an voluntary depar- to award with discretion knowingly right alien who waives his to a deportation pro- initiating ture in lieu of in deportation hearing exchange guar- for a Attorney has del- ceedings. The General being depart voluntarily. antee of able to directors, egated authority to district charge of inves- district officers who are which we are concerned—that authorized charge, pa- and chief tigations, officers 244(e) presents entirely under section — 242.5(a) (1987). agents. trol 8 C.F.R. sought situation. The alien different “rough called a procedure This has been hearing requested and has dis- alternative immigration equivalent guilty plea,” of a relief; cretionary nothing. he has waived knowingly rights that the alien waives his panel’s interpretation, Yet under hearing exchange certainty for the to a BIA’s order amounts to following: depart voluntarily, being able to rather Contreras-Aragon deportation. D.A. than under an order of voluntarily depart, provided he does not Martin, Major Immigration Issues in Law seek review. (Federal 1987). The INS Judicial Center requires sign Voluntary the alien to De- Could such an order be sustained? parture in which he waives the Form long recognized judi Courts have that a hearing and аll alter- price cial officer not exact a for the native forms of relief. See Perez-Funez v. anof See North Carolina I.N.S., Director, F.Supp. District Pearce, v. (C.D.Cal.1985). application An for vol- 2080, (1969); Worcester v. untary departure under this section must Commissioner, (1st Cir. prior commencement of the be made 1966); States, Short deportation hearing and no lies from (D.C.Cir.1965). As Su application the denial of the under this preme said in the context of criminal Court section; however, preju- the denial does not proceedings, imposition penalty “the of a request voluntary departure for un- dice a upon having successfully the defendant for provisions der other of the law. 8 C.F.R. pursued statutory right appeal a of ... 242.5(b) (1987). process ... a violation of due of would be provision authorizing The second a A right law.... defendant’s exercise of a in grant of is found appeal of must be free and unfettered....” Act, 244(e) 1254(e) the section of Pearce, 395 U.S. at 89 S.Ct. at 2080. (1982). grants Attorney That section the statutory provision appeal The for from voluntary General discretion to award de deportation orders furnishes no less of a parture engaged depor are in to aliens who right. v. Mendoza-Lo See United States delegation and im — proceedings. tation The U.S. -, pez, authority provided plementation of that is (1987) (referring L.Ed.2d to an alien’s 242.17(b), 244.1, in and for 8 C.F.R. §§ disposition deporta “right to have the in a apparent from these 244.2 It is forum”). hearing judicial tion reviewed a may BIA regulations that the IJ or the Moreover, we have held that the INS initially grant voluntary departure, the voluntary departure upon not condition the departure period of the is an extension See, protected right. relinquishment of a jurisdiction within the sole of the district INS, 738, 742 e.g., Israel v. n. director. Cir.1986) (implicated privacy rights conditioning the voluntary prevent the the INS from

The distinction between de- 242(b) alien’s parture grant authorized under sections on the IJ’s BIA tolls marry running a United States citi- decision the the promise not to period). period. the departure Villegas zen within Matter of (BIA I. Aguirre, 13 N. Dec. & drastically depart from these We would 1969). A subsequent decision of the BIA policy were we to sanction a principles Aguirre holding stated that the “was de effectively forced the alien to choose which signed guard against any possibility that voluntary exercising an award of between appeal might of an result pursuing judicial review. departure and voluntary loss depar possibility Forcing the alien to abandon the _ deportation proceed ture alien departure in voluntary order seek ings be must assured he will not risk places the BIA’s decision too review of grant voluntary losing departure by a review, judicial right on price dear a appeal an an from adverse decision of price condone. which cannot immigration judge.” Matter Choul expressed similar sen Second Circuit iaris, (BIA 16 I. & Dec. N. 169-70 INS, timents in Ballenilla-Gonzalez 1977).4 denied, (2d Cir.1976), F.2d 515 cert. If BIA’s granting voluntary 58, 54 L.Ed.2d 75 stated, departure were upon conditional alien where it review, waiving right judicial his or her depar- [to [Discretion it only would not be inconsistent with the used the Board to should not be tures] policy appeals BIA, IJ to procedures insulate decisions but would to an amount abuse discre- statutory from constitutional or chal- by requiring the alien waive a facially fun- If an alien has meritori- lenge. right. going validity depor- of a damental We cannot endorse the ous claim panel’s approach she effectively he or should because it tation seeking review the discouraged from leads to this same result. voluntary departure on terms

offer of B. The INS Position. evaporate appeal pur- if the that will penalize an The result would be to sued. “tolling”5 policy оf Under the fide, alien in the bona nonfrivolous exer- INS, petitioning judicial for review within right. cise of a constitutional period departure pre Id. 521.3 right voluntarily de serves alien’s judicial outcome re placing itself has BIA avoided view; however, extinguished if choosing dilemma of between alien in the petition fails to review alien to an administrative Thus, departure period. within the departure. IJ's timely BIA held seek proviso voluntary added if the court went on to hold that the alien no sion also the that 3. less, longer privilege voluntary departure departure days period had the the was 30 or same appeal allowed, and, Id. at longer, because her was frivolous. period would be ‍‌​​​‌‌​‌‌‌‌​‌​​‌​​‌​‌‌‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌​​​‍if it were agree Although firmly with the Second Cir- the would allowed from the alien be right judicial cuit the review should not that depart. the BIA within which date of decision voluntary depar- be with an offer of burdened Chouliaris, 16 N. at This is of no I. & evaporates judicial sought, is ture that if review however, review, consequence judicial for since agree voluntary we do not that the BIA, is the of the the order we review order departure granted by the BIA can be terminated voluntary departure provides specific the appeal a if is be sanction the determined to period. frivolous. INS, 5."Tolling,” by in used the is the the sense provided Aguirre 4. decision that order departure voluntary preservation of the entire tolled, voluntary period departure for to be the period granted by is no the BIA. There conten- permit- appeal the must be filed within the time portion "tolling” preserves only tion that ted This will invari- for voluntary period departure which had not the ably appeal period only case is be the since lapsed prior is for review. That 242.21(a) days, ten and the see C.F.R. appeals practice by departure the BIA in voluntary period followed corresponding is days. IJ. rarely than deci- decision less Chouliaris fundamentally, approach ig- peri- More unconditionally is that judicial review the dictate of Foti —that one final nores voluntary departure, for by the INS od set under a deportation is review once judicial only time which that is the for filed within the six-month petition has been voluntary loss review is unfettered It final order of period. is that departure. provision for with its no policy that this observe We first Nothing in that that is before the court. discouraging petitions frivolous effect on dependent upon filing petition order is review; simply means that for specifiеd date earlier than for review on a must be filed earlier review petition for in the statute. preserve in order to policy authority for such departure. No Ruling C. Court’s policy such a is cited, no notice of is voluntary depar- Viewing the award of regula- by any statute or the alien given to ture as both tion. “final which are before us on review of a tolling policy be- cannot sanction We deportation,” is not consistent unacceptable consequences. its Foti, cause of only approach it is the policy is to shorten the right The effect of the infringe on the alien’s does not period within which statutory appeal, statutory period six-month reduce the allowed petition re- by Congress seek review. See in which to for view, statutory effectively to set 1252(c) No authoriza- or allow the INS peti- periods Further- different time within which to procedure. such a justifies tion for different aliens. more, permit the tolling policy would period appel- for vary BIA to the allowable adopt argues The INS that the rule we If one alien to another. late review from today encourage appeals and will frivolous the rule is to make consequence dilatory tactics. It claims that if equivalеnt period al- appeal period voluntary depar- ble aliens are assured voluntary departure, different lowed for filing petition preserved upon ture will be will, effect, be allowed different aliens review, remain little incen- there would to file for review. periods within which country the aliens to leave this tive for inherently a rule is vulnerable Such period initially granted by the within the application. Taken discrepant abuse merely begs ques- INS. This concern alone, voluntary de- the award of different voluntary departure can tion of whether legit- periods for different aliens is parture upon waiving ap- conditioned grant of de- peal reducing imate because the within which not, upon, must in our parture conditional and should be the alien can We discourage appeals, un- to, individual circum- zeal to frivolous an alien’s tailored and, duly However, circumscribe these different stances. when doing, of meritori- so inhibit periods are transformed Moreover, the does not appeals. ous policy into tolling allowable means of pre- why tolling policy, which explain appeal, periods filing an unconditional if an serves peri- Appeal the result is unconscionable. departurе peri- taken within certainly subject not be ods most should od, subject to the same criticism is not also according individual circum- variation position. it levels at our justice of dictate principles stances. Our review, available, appellate where that Finally, note that our decision will not we uniform It available on a basis. should be stay the alien’s this significantly extend principle to allow the is antithetical to this country. actuality, period post- of periods in effectively voluntary (normally to set different departure mandate during days) very aliens seek review—a little to the time which different adds deportation. As directly from the INS the alien can avoid result which follows which statute, order deportation provided by rule. given to the authority has in fact been stayed pending Appeals. Immigration Thus des- Board of period of 1105a(a)(3). post-mandate 30-day a volun- ignated, the Board amount typically will departure voluntary petitioner. He nei- departure to the during tary which the time only a fraction sought time nor departed his case ther within that deportable while not the alien was Judge Board. As from the an extension awaited our review. dissent, pointed Kozinski has out by its own expired of extension order V. give cаn I do not think we resur- terms. voluntary de- hold that therefore We Congress If the had authorized rection. after expire until parture period does Appeals to States Courts order. deportation affirmance of our voluntary departure, I would concur grant is before final When a have the doing so. do not in a decision We in review the order appeal, us on we create should not venture to authority; we final order entirety. Because a power. such voluntary any award encompasses during incident to majority of this en departure made With deference us also court, today’s opinion award is before to be I proceedings, banc believe Therefore, respectfully If we affirm I dis- on review. erroneous. departure is voluntary grant of sent. well, volun- and the ordinarily affirmed speci- a terminates at tary departure KOZINSKI, Judge, with Circuit of our mandate. after issuance fied time SNEED, Judge, joins, Circuit whom en- Contreras-Aragon was holdWe dissenting: of volun- his order titled to affirmance mystery what the ma- is no about There af- panel first departure tary when reinstating It is doing this case: jority is deportation. firmed his long grant of is-AF- The order That’s asks ago expired. what FIRMED Brief do, Opening Petitioner’s us to see reported at 789 opinion, Rehearing En panel’s 36; Brief Petitioner’s 14;1 4, 11, 13, is ordered that’s what the WITHDRAWN Banc at authority no held we had

original panel concurring GOODWIN, Judge, Circuit INS, 789 F.2d do, Contreras-Aragon v. see part: Cir.1986); we that’s what 777, 779 taking the parties to brief ordered the opinion with in the I concur Mar. banc, see Order case en IV, I believe exception of Part court “whether (parties to brief unnecessary decision. depar- grant of lapsed reinstate case is all about. ture”). what this That’s dissenting: POOLE, Judge, Circuit nei- by the fact that Daunted, perhaps, sincerity majority’s question the I do not Supreme nor regulation nor ther statute deems what it purpose to ameliorate or its action, such opinion authorizes immigration Court harsh facet to be a of rein- any intention majority disavows intellectually no how But matter laws. merely to af- anything, purporting disagree stating I opinion, crafted the departure once firm very it is because its conclusion surely have BIA. Since by the issued Attorney General only the fact that present affirm, majori- review and power to States, designee, or his the United nothing extraordi- claims, doing we are ty to an alien authority by law merely per- arewe unprecedented; nary or That pro voluntary departure nunc grant lapsed of succinctly a sum- recent 1. Petitioner’s most Rehearing En Banc Brief on Petitioner’s fash- tunc." “to He asked court the issue. marized at 14. grant of specific, of reinstatement ion a limited everyone agrees forming Majority function of re- on. Op. our normal at 1094. view. BIA, acting pursuant delegation to General, Attorney make it so. from the

Saying so won’t 8 C.F.R. 3.1(b)(2), 242.17(b), (1987), granted 244.1 §§ courts, Courts, federal particularly petitioner depart voluntarily to them, among indeed. Not powers broad for a limited of time. The order however, repeal power is the the laws of permitted petitioner depart “to from the change English gram- of logic, or the rules voluntarily United States within 30 meaning syntax, mar and or alter the from the date of this order or exten- only what concepts. words and It matters beyond may sion that time as be does, says it does. And a court not what it by the district director.” In re Contreras- what the court does here is to breathe new Aragon, No. A24919364, (BIA 3at June life into an 1985) (BIA Decision). The BIA’s order was Calling expired long ago. an ostrich 4, 1985; petitioner dated June has never calling eagle fly; make it a rein- won’t for an asked extension. Reference to a statement an affirmance won’t make it law- Gregorian standard calendar reveals that ful. Because the exercises fact expired July the BIA’s order no later than have, power it it does not I concedes 4, 1985, years ago.2 some three respectfully, emphatically, dissent. Here is where the and I company. it, IAs view the BIA’s order I having lapsed, longer once it can no autho- depart voluntarily rize By unless things First first. statute the extend, reinstate, renew, or re- authority grant an the we or one who has vive, it, or reissue voluntary departure is the At- none of which are 1252(b), torney majority, authorized to do.3 The on the General. 8 U.S.C. §§ 1254(e) hand, (1982). Attorney General other seems to think that it is suffi- delegate authority “any merely officer or cient us the BIA’s affirm employee Department something authority Justice.” we do have 1103(a). Id. question: Because we are neither the do. raises the Which obvious § Attorney employees good nor officers or it General What does do Mr. Contreras for us Justice, Department the statute to affirm an order that has dead and been all, authority grant voluntary gone years? good denies us de- for three No much, seems, Indeed, anyone. This parture to course. mere affirmance of the Filing petition application for review in this court did A running petitioner’s voluntary not toll the request by an alien for reinstatement or an departure period. Because no was filed extension of time within which to vol- July voluntary depar- until untarily shall be filed with the district di- acquired jurisdiction. ture terminated before we Moreover, having jurisdiction rector over the alien’s petitioner appealed even had before place of residence. Written notice of the dis- voluntary departure period expired, pe- trict director’s decision shall served long gone by depor- riod would be now. Unlike appeal may the alien and no be taken there- orders, 1105a(a)(3) (1982), tation see 8 U.S.C. from. are orders not automatical- 24,982 (1987) Fed.Reg. (amending 8 C.F.R. ly stayed pending judicial review. 244.2) added). (emphasis INS has ruled may grant that the district director extensions Instead, regulations power vest this in the pro original nunc tunc to aliens whose volun- director, INS district who has the exclusive au- tary long they departure period lapsed, so thority extensions or reinstatements in possess valid travel documents and a confirmed the circumstances of this case: transportation reservation for and have not ex- Authority to reinstate or extend the time stay "by tended their in the United States means depart voluntarily specified within which to obviously dilatory action in the courts or initially by ... the Board is within the sole director, Operations elsewhere.” except Instruction 243.- discretion the district Rosenfield, 1(a), reprinted in 4 C. & H. depar- Gordon ... Board reinstate Immigration deportation proceeding ture in that has been Law and Procedure 23-488.9 reopened purpose solely for a other than mak-

1099 Co., 176, 202-15, 100 point- so 448 U.S. 4, 1985, would be BIA order June 2616-23, (1980); L.Ed.2d 696 Muniz v. violate the constitutional that it would less 454, 464-74, controversy, Hoffman, un- U.S. 95 S.Ct. or a case requirement of 2184-89, (1975). of the 45 L.Ed.2d 319 Oc- doing one is in fact less the court rely apparent on incon- casionally, courts not. things it it is claims statutory provisions, sistencies between say about I need nothing else There is see, Power v. Pan- e.g., Federal Comm’n the ma- disagreement my substantive Co., Pipe Line 337 U.S. handle E. what it precisely majority does jority: 1260-61, 513-14, 69 S.Ct. 93 L.Ed. stand con- actions cannot. Its says it (1949); Thomas, Love v. by its own words. demned (9th Cir.1988), 1065-67 ad- far more. majority does But the that, time, interpretations ministrative over unjustifiable, the ma- justify effort to legis- gained approval the tacit additional, very a number jority commits See, e.g., lature. States v. River- question transgressions. While serious Inc., Homes, Bayview 474 U.S. side petitioner’s authority to reinstate of our 455, 463-64, 135-37, 106 S.Ct. 88 L.Ed.2d departure may or right to (1985); CBS, FCC, Inc. v. majority’s terribly significant, not be 2813, 2823-25, 69 L.Ed.2d Today’s en cеrtainly are. banc errors other (1981). upon the waters of cast opinion is a boulder relies on none of these majority here law; be felt it raises will the waves majority rely does on is things. What places. It is to unexpected distant and unwillingness to believe that Con- its own that I now turn. errors these other gress could have intended the result flow- language of statute: plain from the II Congress cannot conceive ... “We for a Kennedy, speaking A. As Justice require aliens volun- intended to Court, us reminded unanimous repeated departure to seek extensions tary Term, language of the statute is when departure period from the clear, matter. the end of the director, preserve in order to district — Bowen, Hosp. Ass’n v. Bethesda until our fi- award of -, or- on nal determination of the statute here language majority 1092. The Majority Op. at der.” denying authority us clearer could not be statu- of course cannot—cite does not—and lapsed to reinstate its conclu- to base tory language supra. Under departure. p. 1098 See sion; statutory language, as noted cases, prior long line of and a Bethesda above, contrary. Re- squarely to the apply do but nothing left for us to there is interpretation is administrative liance on language as written. major- question. But the equally out of the report, floor points to no committee entirely ity also statutory language Were the statement, testimony or other witness clear, appropriate to resort it would be legislative record in the authorities, of evidence as committee shred secondary such Nothing at See, for its conclusion. as a basis legislative materials. reports or other all.4 v. Rohm & Haas Co. e.g., Dawson Chem. still, on its face that the statute troubling majority applies seems to concede

4. More statutory jurisdiction this case. unprecedented approach deprives construc- to hear us of question of our Op. even to the fundamental Majority n. 1. But governing jurisdiction to decide this case. the statute again conceive” that “cannot once provides that “[a]n statute statutory dismissing says, what means by any reviewed court if ... shall not be language Id. While “sterile formalism.” departed the United States alien ... retaining juris- plausible exist for rationale U.S.C. of the order.” after the issuance case, majority does not diction over the 1105a(c) (1982). Because did it, technique falling back on its novel articulate United States after the from the fact deportation statutory interрretation. issued, was submit, This, danger legislative power. is a ultimate source of respectfully This I not how the principles is Constitution is written.5 established departure ous While reason statutory construction. B. The also does violence to weight the relative as to able minds differ principles established of administrative re- legis manifestations given to be various The court view. asks “whether prior no intent, deci lative I am aware departure can be used as an enticement to opinion formed sion where the court forego review,” the alien judicial induce to any not on Congress to what meant based petitioner may “granted and whether any legislator, thing by said or to or writ right voluntarily depart, provided he report or in any ten in committee the stat Majority does not seek review.” itself, on the court’s ute rather own but Op. Having posed question, at 1093. so Indeed, incredulity. authority all sense of negative, answers it Hill, contrary. See, A v. e.g., is to the TV concluding place that this would “too dear 2290- price appeal, price on the (1978) (enforcing plain Indeed, we cannot condone.” Id. at 1095. completion of language of statute to bar the court finds it “unconscionable” and “paradox” despite million dam $100 “principles justice” “antithetical” to only halting save “a construction would the INS even to shorten the an alien relatively small number of three-inch has to take an as a condition for fish”). retaining privilege voluntary depar- ture. at Id. quibble. a court under-

This is no When majority’s misplaced. concerns are meaning takes to divine statutes with, begin princi- To unless constitutional nothing sense of based on its own ples implicated, are a court’s notion of what disbelief, interpreting it ceases the law and just is fair and has no relevance when making unnecessary point starts it. It is Congress spoken. has More fundamental- approach. out of this here unwisdom ly, misperceives the court the issue: Peti- not, is not what we are com- Wise or this given giv- tioner was not a choice between Making prov- do. laws is the missioned to ing up voluntary departure and political When courts ince of the branches. appeal; required nor was he to file a notice second-guess choices made undertake to appeal early preserv- as a condition for Congress clearly and the President and em- departing voluntarily. language, they statutory bodied in trench sought He need an extension or authority of coordinate branches original grant reinstatement of his of vol- government. As the Court stated in untary departure from the district di- sys- A our constitutional TV v. Hill: “[I]n rector, relatively simple painless pro- separation tem the commitment to the cedure. powers pre- is too fundamental for us to empt congressional ‍‌​​​‌‌​‌‌‌‌​‌​​‌​​‌​‌‌‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌​​​‍by judicially action de- Petitioner did not to make even have creeing what accords with ‘common sense request within the 30 allotted for him public and the weal.’ Our Constitution depart voluntarily, reasonable as that responsibilities political in the been; vests such would have district director at branches.” 437 U.S. any an extension or reinstatement at law, majority’s regime, no original grant lapsed. Under the time after clear, no safe from supra. matter how is redaction n. 3 Petitioner has never re- See relief, judiciary, quested the courts though become the even the BIA’s majority’s Congress body 5. The assertion that could administrative that can determine whether eligible privilege. not have intended for aliens to seek extensions he continues to be for the Congress surely from the district director while their would not have wanted bur- is, event, pending making periodic before the court curi- den the courts with mination; deter- time, eligibility ous. Since an alien’s at the same not have dependent depart voluntarily on the existence of cer- wanted to extend the facts, perfect ineligible tain see n. 6 infra, it makes sense for aliens who become because of a require change the alien to seek renewal from an material in circumstances.

HOI you planning re not And peri- him that Court: advises specifically do it. extended can be od of 3; planned to do that in BIA Decision I haven’t director. Counsel: by the district (amend- 24,982 (1987) that— Fed.Reg. also 52 see 244.2). Questioned about you’ll let

ing you 8 C.F.R. And if do that The Court: § counsel petitioner’s argument, at oral us know. this not late: is still too freely that it admitted I to see this ... would like Counsel: Also, go ruling. to the district the district you court issue a Can’t Court: essentially understand not director would director? really complicat- He—it would be it all. can, Yes, and— you Counsel: ed, me.... believe go to the district The Court: [inaudible] En Argument Banc Transcript of Oral director. 16, 1987). (June go to the district could You Counsel: candidly admit stay litigants do so director, request a Seldom again unwillingness to submit their claims voluntary their reinstatement and also provided them forum di- to the administrative if the district again, departure, admission, light law. In stay grant you a to chooses not rector petitioner would rationale that majority’s deny— plans to and give up his order required to be In may grant it. But he The Court: departing vol- preserve privilege your there, any bar to fact, was there is astonishing. untarily nothing short of is the district director relief of asking that only melt opinion builds snowman to date? in all this time so, doing heat of its rhetoric. it with the No. Counsel: unquestioned the heretofore it undermines your any bar Is there The Court: act where the that a court will not principle that asking for today and going down administra- has failed to exhaust relief? See, e.g., United McKart tive remedies. No. Counsel: 185, 193-95, States, it. you haven’t done But The Court: (1969); gener- see 23 L.Ed.2d haven’t, I your Honors. No, I Counsel: Rosenfield, supra n. H. & ally C. Gordon necessary to do it was felt haven’t that 8.4b. § be that, may or as there sure, run some petitioner would To be Contreras, against Mr. outstanding order district his claim to the presenting risk visa, I’m not immigrant have his he does give the thing, it For one would director. plans to do— government what the sure to determine opportunity director to the dis- you if went But The Court: eligible to be petitioner continues whether rein- got an you and trict director if departure.6 petition- Even pro nunc stating his may exercise eligible, the director iser your all client’s solve tunc would relief granting the against discretion problems. me, risks, it seems to these sought. But would, Yes, your Honor. it Counsel: avoid petitioner cannot that the are ones render surely it would And The Court: responsibility places the the law because this case moot. the district decisions making these would, Yes, your Honor. Indeed, pre- Counsel: it is director, not the court. are try agencies to do that. you didn’t But administrative cisely The Court: because determinations these to make haven’t, equipped No, your I Honor. Counsel: pro a nunc In order obtain C.F.R. 244.1. Voluntary departure director, an been, from the district “is, good person tunc extension and has an alien who ability and his readiness demonstrate years immedi- alien must five for at least moral character stay in his must not extended application for ately preceding his obviously "by dilato- means 1254(e), States "is will- departure,” who Op- ry in the courts elsewhere.” which to action means with the immediate and has 243.1(a). Instruction erations depart promptly the United States.” so, must defer to compel quite saying courts them and plainly holds litigants present their claims to the that it constitutionally impermis- would be agency first. sible to force an alien to run the risk of losing Petitioner’s refusal obstinate avail if he deportation. wishes to his himself оf the administrative remedies demonstrably wrong; opin- as he available to him—even admits that ignores Supreme ion the one obtaining relief Court ease administrative would solve squarely point, problem and render this case and seriously moot—is say sugges- curious to the least. Counsel’s misconstrues those rely cases it does on. really complicated” tions that “it be would 1. The broadly asserts and that the district director “would essen- “[cjourts long recognized judi- that a tially not understand it all” make a mock- may cial officer price not exact a for the ery Congress of the mechanisms and the taking appeal.” of an Majority Op. at executive branch have established for deal- support 1094. In proposition of this it cites precisely Quite possi- this issue. Pearce, North Carolina v. bly, petitioner’s reluctance to submit his S.Ct. claim to the district director reflects facts Commissioner, Worcester v. 370 F.2d 713 unknown to us that now render him ineligi- (1st Cir.1966), States, and Short v. United ble for the relief he seeks. (D.C.Cir.1965). 344 F.2d 550 Pearce and event, majority’s repeated In as- hold may Short that a court not retaliate petitioner put sertion that is to a hard against a having defendant for successfully pursuing choice judi- between appealed by imposing a mоre severe sen- taking cial advantage review and tence on remand. Worcester holds that a un- is court not threaten a convicted defend- Petitioner, many founded. like others be- ant with a jail substantial sentence if he him, partaken fore could have of both. chooses to promising pro- while him fact, simply he still can: He has to follow bation if he does not. path Congress and the INS have hewn Pearce, pronouncement for him. The authoritative fails even to ac- area, knowledge procedures, treating per these does not them establish se they meaningless. This, as if suggested by were I rule majority. re- Even in submit, spectfully cases, is bad law and worse criminal may be is, moreover, policy. It unjustified an burdened the risk of a more severe slight to a coordinate branch of govern- our retrial; sentence in case of reversal and ment. If the court is granting bent on process that, due requires only clause if a petitioner seeks, should, the relief he it at more imposed, severe sentence is the sen- least, very require petitioner press tencing judge adequately justify his deci- his claim before the INS in the first in- sion. U.S. at 89 S.Ct. at A 2081. give body stance to that administrative an application fair of Pearcе to INS cases opportunity to exercise the discretion en- would not render the voluntary departure trusted to it law.7 unconstitutional; scheme it would re- Finally, quire C. alarming, and most that the district ma- director’s reasons for jority gives this case a refusing constitutional di- to reinstate or extend a simply mension it does not have. Without placed be on the that, Having inappropriate States, 7. said all family it is not such as close ties in the United case, .us, petitioner’s presented note that ordinarily will be decisive in the of re- appealing an one for the exercise of administra- lief"). course, that, passing Of grace. equities appear tive to have tilted petitioner’s request voluntary departure, heavily petitioner’s more favor since 1985: place INS will discover other facts that him in a He is now married to a United States citizen light. supra. different See n. 6 But if and, granted voluntary departure, if would be us, appears to the INS as he does before I would way citizenship. well on his 2 to United States Cf. certainly expect the INS to exercise its discre- Rosenfield, 3, 7.2c, supra C. Gordon & H. n. granting tion in favor of him the relief he seeks. (“[fjavorable cases, at 7-27 factors in individual at tional interests.” Id. S.Ct. at record, be unrelated thosе reasons and that penalize the alien attempt to a vindictive an Second, relied on the fact the Court however, point, Pearce More to the already appellants had received adminis- As the us. to the case before irrelevant hearing trative on the merits of their claim. held, Supreme Court “[a] cases, process in criminal due Since “even purely civil action.” INS proceeding is a provide require a State to does 1032, 1038, 104 Lopez-Mendoza, 468 U.S. appellate system,” the fact that the L.Ed.2d 778 effectively precluded appeal from the fee apply Therefore, protections that “various agency’s decision did not vi- administrative trial do not of a criminal in the context process. olate due Id. at hearing.” Id. Giv- apply in a case, of this civil” nature “purely en the majority’s conclu refutes the Ortwein and its authority is not Pearce the relevant dealing petitioner may not be forced to Supreme Court cases sion progeny but placed on the voluntary depar be losing privilege with the burdens the risk in civil cases. right to any appeal. he chooses to If ture when thing, petitioner’s situation is far less com 656, Schwab, 410 U.S. 93 v. Ortwein of the welfare claimants pelling than that (1973) (per cu 1172, 35 L.Ed.2d 572 S.Ct. Ortwein; they denied all access to were riam), considered due Supreme the Court courts, challenges is not. Even protection the while equal and process filing for the mandatory majority’s hypothesis, fee $25 under the strained determi appeal from an adverse judicial prevent scheme does not regulatory agency. Appel state welfare nation of a possibility appeals, merely it allows for the they indigents were lants contended privilege that the 658, filing fee. Id. at 93 pay unable appeals the BIA’s if an alien will be lost Thus, the fil imposition of at 1173. S.Ct. eyes to Only by shutting one’s decision.8 right their effectively denied them ing fee possibly said controlling authority can it be appeal. process. due this scheme violates See fee, upheld nonetheless Ortwein, The Court at 93 S.Ct. at 410 U.S. First, appellants’ relying on two factors: 1174-75; MacDougall, 773 Piatt v. implicate a fundamental con did not claims Cir.1985) (en banc) (ap 1032, 1034-35 only they were right because stitutional indigent violate filing fee did not pellate benefits. seeking increased welfare rights he where plaintiff’s constitutional distinguished v. Connecti Boddie Court hearing and his already received one had 780, 371, L.Ed.2d cut, 91 S.Ct. 28 him wages allegedly owed claim—for a state could held that whiсh implicate any fundamen not the state—did pay filing fees and require indigents to not interests). tal judicially to obtain a process costs argu- convincing Casting about for a denying any them while approved divorce reach, it seeks to justify the result ment to obtaining a divorce. As means of other yet another area unsettles Ortwein, appellants' inter Court noted may grant The INS law. constitutional “has far est in increased welfare benefits points depor- at two the in significance than less constitutional first, any hear- before proceedings: tation appellants,” 410 U.S. the Boddie terest of second, held; after the ing has been 1174, predi was at at 93 S.Ct. judicial review. but before BIA’s decision special of the marital on “the nature cated encourage the alien to intended to Both are concomitant associa- relationship and its petitioner, a reduction burden government’s approach, The effective the burden Under the appeal, forfeiting fades into lighter: risk of even to avoid of the time voluntary departure, petitioner compared the burden on insignificance when petition for review filed his need petitioners in Ortwein. was in force. the 30 within opportunity is the heard ‘at a further ado.9 cess country leave without meaningful speaks approv- meaningful time and in a man- majority opinion While the ” practice, Eldridge, first it condemns ner.’ Mathews v. U.S. ingly of the right 893, 902, (1976) compelled waiver of 96 S.Ct. 47 L.Ed.2d 18 second as a Op. Manzo, at 1095. Majority (quoting Armstrong ‍‌​​​‌‌​‌‌‌‌​‌​​‌​​‌​‌‌‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌​​​‍review. v. U.S. two, in 545, 552, 1187, 1191, between 14 L.Ed.2d 62 distinction view, (1965)). in the first instance majority’s process requires is that The due clause his to a “knowingly waives opportunity hearing govern- for a when exchange guar- hearing in for a rights; deprive ment wishes to us of our voluntarily,” being antee of able require opportunity for an does hearing the alien “has waived Barnes, after a while Jones v. U.S. nothing.” at 1095. Id. (1983); Ortwein, at distinction with- advances a at 1174. I do not understand how the ini- before the out a difference. Whether impermissibly ap- regulations can burden hearing appeal, the alien tial or before peals when the identical burden on the advantage of prefer to take would no doubt any hearing perfectly at all is rights retaining the procedural while Eide, acceptable. See Wiren depart voluntarily if he is unsuc- right to (9th Cir.1976) (bond require- 763-64 process, the point At either in the cessful. prevents indigents ment that from obtain- go quiet- prefer to see the alien INS would ing any hearing process, due all violates expensе ly and save itself burden requirements prevent fee that unlike majority gives proceedings. further The judicial appellate review of administrative persuasive reason for its assertion that

no pro- hearings). majority The stands due depart voluntarily the alien who chooses to cess on its head. hearing effectively his waives before right procedural process to due whereas appears hold majority 3. The also to giving up is enticed into the alien who right appeal to take an in an nothing.” appeal “has waived right, immigration case is a fundamental procreation, therefore marriage like or

Indeed, if there is a distinction to be conditioning voluntary departure on its situations, points drawn between two Op. Majority at opposite the waiver is unconstitutional. exactly to conclusion. As 1095; observed, (citing repeatedly see also at Isra- Supreme Court has id. 1094-1095 (9th Cir.1986)).10 INS, requirement pro- 785 F.2d 738 fundamental of due el v. “[t]he majority's explain light explained this even in of the The BIA itself best the rationale for to 9. rationale, types voluntary departure: good own and for reason: Even if the both were, general, right to in a fundamental purpose authorizing voluntary The de- right right, to the same could not be said of the parture in lieu of is to effect frivolously. majority would not dis The prompt departure alien’s without further trou- persons bring appeals pute who frivolous Both the aliens and the ble to the Service. 1912, See, e.g., penalized. U.S.C. thereby. §§ 28 alien does Service benefit But if the (1982); Fed.R.App.P. distinc depart promptly, 1927 so that the Service be- INS, courts, costly makes in further and more tion here is that the not the comes involved procedures attempts his to continue determination of frivolousness. We have the previously here, illegal stay original benefit to the held that is within the Board’s “[i]t if, years delay, he arguments Service is lost. And after competence whether to determine again opportunity rewarded with the judicial proceed advanced in administrative or previously he has charged ings pursuant to a statute the Board is spurned, what incentive is there for administering are meritless.’’ Ba Gonzalez similarly depart promptly circumstanced to INS, 681, Cir.1986) (en F.2d toon v. 791 685 given opportunity? when first banc). (BIA Chung Wong unpublished In re Pui deci- reaching question out to decide the sion, 21, 1969), Aug. quoted Keung in Fan Wan appeals can affect an alien’s whether frivolous voluntary INS, (2d Cir.1970). The v. logic 304-05 rights, creates position of the INS's is unassailable. in a conflict with the Second Circuit's decision INS, (2d states, dicta, v. 546 F.2d 515 10. in its rule Ballenilla-Gonzalez denied, Cir.1976), appeals. U.S. applies cert. 434 98 even in the case of frivolous case, noting Majority Op. attempt while at n. There is no 54 L.Ed.2d 75 That 1095

H05 conditioning right judicial to review an immi In Israel we noted that gration wholly an alien’s voluntary departure on case is cut from a different grant of cloth; citi- marry a United States promise variety not to it is far more akin to a “unjustified government rights thought zen amounted other not heretofore to be relating personal in a decision See, Ortwein, interference e.g., fundamental. 410 U.S. right marry marriage,” because the 659-60, (right at 93 S.Ct. at 1174-75 Id. at right. constitutional a fundamental decision); Lyng v. agency judicial review of Redhail, v. — Zablocki (citing 742 n. 8 UAW, U.S. -, 108 S.Ct. 1189- 673, 680, 374, 384, 54 L.Ed.2d 98 S.Ct. U.S. (1988) (right striking (1978)). majority apparently be- stamps); food workers to receive right appeal is entitled to that the lieves Barajas-Guillen, v. States the same solicitude. (9th Cir.1980) (alien’s right to re- 752-53 main United States to be significance to overstate It is difficult voluntary departure). By no of the opinion. stretch majority’s aspect Heretofore, judicial category imagination of fundamental is the review abridge could rights, government hearing those the after a full administrative “so root- to effectu- ways “closely tailored” only in ed in the traditions and conscience our govern- “compelling” “important” or ate people as to be ranked as fundamental.” Zablocki, interests, at see mental Massachusetts, 97, 105, Snyder v. 291 U.S. Thompson, Shapiro v. 682; 98 S.Ct. 330, 332, (1934). The 78 L.Ed. 674 1322, 1331, expressly repudiated that Supreme Court (1969),' relatively has remained L.Ed.2d 600 petitioner’s notion Ortwein. By treating defined. In addition narrow and well analogous review as in the Bill of specifically enumerated those rights type fundamental addressed rights pertaining to mar- Rights, it includes Zablocki, majority has Israel Zablocki, see riage, 434 U.S. at variety of opened the door to an endless 680-81, Loving Virginia, S.Ct. at vaguely and can claims that look similar 12, 1817, 1823, 1, 18 L.Ed.2d 87 S.Ct. U.S. exalted status of funda- equally vie for the see (1967); family relationships, rights. mental Cleveland, 431 U.S. City v. East Moore 1932, 1935, 494, 499, 52 L.Ed.2d 97 S.Ct. Conclusion see v. (1977); procreation, Skinner Oklahoma, 535, 541, 62 S.Ct. 316 U.S. above, respect- I reasons stated For the (1942); use of 86 L.Ed. 1655 fully dissent. v. Connecti- see Griswold contraception, cut, 485-86, 85 S.Ct. 381 U.S.

1682-83, (1965); child rear- L.Ed.2d 510 Illinois, ‍‌​​​‌‌​‌‌‌‌​‌​​‌​​‌​‌‌‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌​​​‍Stanley v. education, see 1208, 1212, 31

405 U.S. Society Pierce v. (1972), L.Ed.2d 551

Sisters, 534-35, 268 U.S. Meyer v. Ne-

573-74, 69 L.Ed. 1070

braska, 390, 399-401, S.Ct. (1923); personal L.Ed. 1042 Thompson, Shapiro see

autonomy, 8, n. at 1328-29 & at 629-31 & travel). (right

n. 8 pursue appeals are not frivolous aliens who should not deter aliens in dicta that the INS from them to by forcing bringing appeals entitled to reinstatement nonfrivolous forego voluntary departure, Id. at 521-22. held that

Case Details

Case Name: Rene Adan Contreras-Aragon v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 15, 1988

Citation: 852 F.2d 1088

Docket Number: 85-7392

Court Abbreviation: 9th Cir.