Stewart v. INSStewart v. INS
COUNSEL
ARGUED: Ronald Darwin Richey, Rockville, Maryland, for Petitioner. Kristen A. Giuffreda, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Elizabeth A. Welsh, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WILLIAMS, Circuit Judge:
Edith Miller Stewart, a citizen and native of Sierra Leone, petitions for review of a March 1998 decision by the Board of Immigration Appeals (BIA) denying her motion to reopen deportation proceedings to apply for adjustment of status. We first conclude that we possess jurisdiction over the BIA‘s denial of her motion to reopen, which was based on the BIA‘s finding that Stewart failed to demonstrate “exceptional circumstances” excusing her overstay in the United States past her voluntary departure date. Because the BIA did not abuse its discretion in reaching this conclusion, we affirm the BIA‘s March 1998 decision and deny Stewart‘s petition for review.
I.
Stewart entered the United States on or about August 13, 1993, as a nonimmigrant visitor authorized to remain in the United States until February 12, 1994. On March 18, 1994, the INS issued an Order to Show Cause charging Stewart with deportability pursuant to Section 241(a)(1)(B) of the Immigration and Nationality Act (INA) for remaining in the United States longer than permitted. By way of written pleadings, Stewart conceded the allegations and the charge of deportability. Concurrent with her concession of deportability, Stewart submitted applications for political asylum, withholding of deportation, and voluntary departure.
On February 21, 1995, Stewart appeared before an immigration judge (IJ) and presented testimony in support of her applications for asylum and for withholding of deportation. Stewart testified that she left Sierra Leone because of the ongoing civil war and political unrest that affected both her and her family. According to Stewart, her father was killed eighteen years ago while on military duty, and her aunt, who was the Minister of Health, was under house arrest following a coup that had overthrown the government. Stewart told the IJ that in March 1991, she was part of a group of travelers who were tied up, beaten, and robbed by rebels, and as a result of the attack, Stewart was hospitalized for two weeks. She also reported that following her release from the hospital, she heard on the news that the rebels had
At the conclusion of the hearing, the IJ denied Stewart‘s applications for asylum and withholding of deportation. The IJ determined that Stewart had a fear of being the object of general violence incident to a civil war, a fear that does not fit within the concept of persecution for purposes of political asylum. The IJ noted that although Stewart was the victim of violence, it did not appear that the attack had anything to do with her race, religion, nationality, membership in a particular social group, or political opinion. The IJ further noted that Stewart had found a safe haven in Ethiopia, and had not presented any evidence that Ethiopia was suffering from the same kinds of problems as Sierra Leone. The IJ concluded that Stewart had not established a fear of persecution warranting asylum or withholding of deportation. The IJ granted Stewart the relief of voluntary departure on or before May 21, 1995, pursuant to Section 244(e)(1) of the INA. The IJ warned Stewart both orally and in writing that if she failed to leave by the deadline date, she would be ineligible for “voluntary departure again in the future, suspension of deportation, and adjustment of status or change of status as provided for in Sections 242(b), 244(e), 245, 248, or 249 of the [INA].” (A.R. at 213.)
Stewart appealed the denials of asylum and of withholding of deportation to the Board of Immigration Appeals (BIA). While that appeal was pending, Stewart filed a motion to remand the case for consideration of adjustment of status based on her November 15, 1994 marriage to a United States citizen. By order of August 2, 1996 (the August 1996 Order), the BIA denied Stewart‘s motion to remand because she had failed to file a sworn application for adjustment of status (Form I-485) demonstrating her prima facie eligibility for adjustment. The August 1996 Order also dismissed Stewart‘s appeal from the IJ‘s decision denying asylum and withholding of deportation on the ground that Stewart had established only that she is fleeing general conditions of violence affecting her country. The August 1996 Order extended Stewart‘s period of voluntary departure so that it expired thirty days thereafter. On March 19, 1997, this Court denied
On August 28, 1996, three days before the expiration of her thirty-day extension for voluntary departure, Stewart filed a motion to reopen deportation proceedings to apply for adjustment of status.2 The BIA issued an order denying Stewart‘s motion on March 26, 1998 (the March 1998 Order). The BIA did not reach the merits of her petition but instead found that the record contained no evidence that Stewart had obtained an extension of her voluntary departure date from the INS district director. The BIA also found that Stewart failed to depart from the United States within the thirty-day extension period of voluntary departure and did not submit any evidence showing that her failure to do so was the result of “exceptional circumstances.” In light of these facts, the BIA concluded that Stewart was “ineligible, pursuant to section 242B(e)(2)(A) of the Immigration and Nationality Act,
Stewart now petitions for review of the March 1998 Order. Stewart argues on appeal that the BIA abused its discretion in denying her
II.
Before reaching the merits of Stewart‘s case, we first must determine whether we have jurisdiction over Stewart‘s petition for review. This determination requires us to proceed in two steps. First, we must decide whether Stewart‘s petition for review is subject to the pre-IIRIRA law or to the transitional changes in judicial review in IIRIRA by determining what is the “final order of exclusion or deportation” for the purpose of invoking the transitional changes in judicial review. Second, after determining the governing law, we then must decide whether it provides us with jurisdiction over Stewart‘s appeal.
A.
Prior to the enactment of IIRIRA, judicial review of a BIA order denying a motion to reopen was governed by
The BIA dismissed Stewart‘s appeal from the IJ‘s denial of her applications for asylum and withholding of deportation on August 2, 1996, prior to the enactment of IIRIRA. The BIA dismissed Stewart‘s motion to reopen deportation proceedings to apply for adjustment of status on March 26, 1998, more than thirty days after the enactment of IIRIRA. Therefore, whether Stewart‘s petition for review in the instant case is subject to the old rules or to the transitional rules turns on whether the August 1996 Order or the March 1998 Order is considered the “final order of exclusion or deportation.” Although IIRIRA‘s transitional rules make no explicit reference to denials of motions to reopen, this Court and our sister circuits have traditionally interpreted “final order of deportation” in other contexts to include a BIA order denying a motion to reopen. See Nwolise, 4 F.3d at 309 (noting implicitly that an order denying a motion to reopen is a “final
B.
Having concluded that the March 1998 Order denying Stewart‘s motion to reopen is a “final order of deportation” for purposes of invoking the transitional rules, we must now decide whether these rules provide for jurisdiction over Stewart‘s appeal. As a preliminary inquiry, we must determine whether
There are of course many other decisions or actions that may be part of the deportation process -- such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.
American-Arab, 119 S. Ct. at 943 (emphasis added). A motion to reopen is very similar to a motion to reconsider. See
Under IIRIRA‘s transitional rules, this Court has jurisdiction to hear an appeal from the BIA‘s denial of Stewart‘s motion to reopen unless an exception applies. See
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
Our preliminary inquiry is whether the BIA‘s decision was a “decision under . . . section 245.” The BIA explicitly dismissed Stewart‘s motion to reopen to apply for adjustment of status for her failure to demonstrate “exceptional circumstances” excusing her overstay as required by
Subject to [receiving written and oral notice of the consequences of remaining in the United States after the scheduled date of departure], any alien allowed to depart voluntarily under section 1254(e)(1) of this title . . . who remains in the United States after the scheduled date of departure, other than because of exceptional circumstances, shall not be eligible for relief [including, inter alia, adjustment of status] for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively.
The BIA‘s decision denying Stewart‘s motion to reopen could logically be interpreted for the purposes of
III.
Having concluded that we possess jurisdiction over Stewart‘s petition for review, we now review her arguments on appeal. This Court‘s review of a decision by the BIA denying a motion to reopen is extremely deferential; we will not reverse the BIA absent an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992); M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990). Motions to reopen immigration proceedings are disfavored, particularly in deportation proceedings, where “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323.
Stewart‘s first two contentions on appeal are that her detention by the INS and her subsequent illness and hospitalization constituted “exceptional circumstances” preventing her voluntary departure from
Stewart‘s third and fourth contentions that “exceptional circumstances” are present are the death and disappearance of her father and mother, respectively, and the civil unrest in Sierra Leone. Although Stewart presented these arguments to the BIA in support of her applications for asylum and for withholding of deportation, she did not present them to the BIA as claims of “exceptional circumstances.” Because Stewart did not properly present these claims to the BIA for consideration, we cannot consider them.8 See id.
Finally, Stewart argues that the ineffective assistance of her counsel constituted “exceptional circumstances.” Stewart hypothesizes that but for her attorney‘s failure to file a Form I-485, the BIA would have granted her motion to remand. Stewart failed to assert her claim of ineffective assistance of counsel to the BIA in the manner prescribed
In the alternative, Stewart argues that the filing of her motion to reopen deportation proceedings in itself constituted “exceptional circumstances.” We reject this argument, based on the persuasive reasoning of Shaar v. INS, 141 F.3d 953 (9th Cir. 1998). In that case, the Shaars, who were nonimmigrant visitors, were found to be deportable because they had remained in the United States after the expiration of their visas. Shaar, 141 F.3d at 955. The IJ exercised his discretion to permit them to depart voluntarily, and gave them oral and written warnings that they would not be eligible for certain types of relief if they did not leave by the specified date. See id. Two or three days before their scheduled departure date, the Shaars filed a motion to reopen deportation proceedings to apply for suspension of deportation, which was denied by the BIA. See id. On petition for review, the Ninth Circuit concluded that “the departure situation was not beyond their control, and even if it were, it was not even remotely as compelling as a serious illness of the alien himself or the death of an immediate relative.” Id. at 957. The Ninth Circuit also concluded that as a matter of law, the filing of the petition to reopen did not toll the statutory bar date, because the regulations did not provide for a stay or tolling upon the filing of such a petition. See id. at 958. We find this reasoning persuasive in the similar context of a motion to reopen to apply for adjustment of status.
In sum, the BIA did not abuse its discretion in concluding that Stewart failed to show “exceptional circumstances” warranting consideration for adjustment of status after she failed to depart the United States by the designated voluntary departure date.11 Accordingly, Stewart‘s petition for review is denied and the BIA‘s March 1998 Order denying Stewart‘s motion to reopen deportation proceedings is affirmed.
AFFIRMED
Notes
Subject to [receiving written and oral notice of the consequences of remaining in the United States after the scheduled date of departure], any alien allowed to depart voluntarily under section 1254(e)(1) of this title . . . who remains in the United States after the scheduled date of departure, other than because of exceptional circumstances, shall not be eligible for[relief including, inter alia, adjustment of status] for a period of 5 years after the scheduled date of departure or the date or unlawful reentry, respectively.
Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date [April 1, 1997] --
(A) the amendments made by this subtitle shall not apply, and
(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.
Section 309(c)(4) provides:
In the case in which a final order of exclusion or deportation is entered more than 30 days after the date of the enactment of this Act [September 30, 1996], notwithstanding any provision of section 106 of the Immigration and Nationality Act to the contrary[, the transitional rules apply].
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.