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Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-1-2004 Barker v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-3927 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Barker v. Atty Gen USA" (2004). 2004 Decisions. Paper 293. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/293 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL ____________ IN THE UNITED STATES COURT OF OPINION OF THE COURT APPEALS ____________ FOR THE THIRD CIRCUIT ____________ ROSENN, Circuit Judge. No. 02-3927 The petitioner-appellant, Sandra ____________ Barker, appeals from a final order by the Board of Immigration Appeals (“Board”) SANDRA BARKER, denying her motion to reopen her Petitioner deportation proceedings. The Board denied Barker’s motion to reopen its v. decision, dismissing her appeal from an immigration court’s order of deportation, John Ashcroft, Attorney General of because of her failure to depart voluntarily the United States, from this country as ordered. We affirm. Respondent I. ____________ Barker, a native and citizen of On Petition for Review of an Order of Jamaica, entered the United States on the Board of Immigration Appeals January 1, 1989, with a fiancée visa, with INS No. A23 913 939 permission to remain in this country until ____________ April 14, 1989. She did not marry her fiancé and remained in the United States Submitted Under Third Circuit LAR longer than permitted. On June 26, 1996, 34.1(a) December 16, 2003 the Immigration and Naturalization Service (INS), the predecessor to the Before: ROTH, McKEE, and ROSENN, Bureau of Citizenship and Immigration Circuit Judges Services, com men ced d epor tation proceedings against her with the filing of (Filed 12/24/03 ) an Order to Show Cause why she should not be deported. Alan M. Strauss Barker appeared before an Law Office of Stanley H. Wallenstein immigration judge (IJ) in September 1996. 41-43 Beekman Street, 3rd Floor She admitted the allegations contained in New York, NY 10038 the Order to Show Cause. Based on the admissions, the IJ found her deportable as Counsel for Petitioner charged. She requested relief and protection from deportation in the form of David V. Bernal political a sylum, withholding of William C. Minick deportation, and suspension of deportation. Anthony C. Payne In the alternative, she sought the privilege United States Department of Justice of voluntary departure. Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Barker offered testimony and Washington, DC 20044 documentary evidence in support of her applications for relief and protection from Counsel for Respondent deportation. She sought asylum and withholding of deportation based on her claim of having been persecuted, and Barker with written notice of the having a fear of persecution, in Jamaica on limitations on discretionary relief if she account of her political opinion and her failed to depart voluntarily by October 4, family’s alleged involvement with the 1997. Jamaica National Party. She sought Written notice was provided to suspension of deportation based on a claim Barker in English and Spanish and that of extreme hardship if deported from the “[o]ral notice of the contents of this notice United States. was given to the alien in his/her native Upon a hearing, the IJ denied language, or in a language he/she Barker’s application for asylum in all of its understands.” aspects. The IJ, however, granted Barker’s Barker appealed the IJ’s decision to alternative request for voluntary departure the Board. The Board dismissed the until October 4, 1997. In granting appeal on October 29, 2001. The Board’s voluntary departure, the immigration judge dismissal decision, however, “permitted informed Barker orally: [Barker] to depart from the United States I have granted you voluntary voluntarily within 30 days from the [date departure for a period of six of the Board’s decision] or any extension months. If you do not appeal your beyond that time as may be granted by the case, or if you appeal your case district director; and in the event of failure and lose, then you will have to so to depart, [Barker] shall be deported as leave the United States. Okay. It provided in the Immigration Judge’s may be possible to get more time order.” 1 beyond October 4th, but you Barker did not depart but filed a would have to ask the Immigration motion to reopen h er deportation Service for that not me, I have no proceedings with the Board. The motion authority to extend that time. . . . requested reconsideration of her eligibility If you remain beyond the departure for suspension of deportation in light of date without a very good excuse, new evidence unavailable at the time of for example, if you get seriously the IJ’s decision. Barker acknowledged in sick or injured, then there will be the motion that her “previous period of penalties, you’ll be ordered voluntary departure has expired.” The deported back to Jamaica and motion, therefore, alternatively requested you’ll also lose the right to apply that “the Board extend her voluntary for certain kinds of important departure until a day 30 days following immigration benefits for a period adjudication of the instant Motion, of five years. I’m giving you including any judicial review thereof.” forms in English and in Spanish, Barker subsequently supplemented her that describes those penalties and motion, indicating that she would be I’m also giving you a copy of the seeking to adjust her immigration statute order that I’m entering today based on her recent marriage to a United d e n y in g t h e a s yl u m a n d States citize n. The motion, as withholding, and suspension and supplemented, did not indicate that she had granting you voluntary departure for six months. Ms. Barker, do you have any questions? 1 As noted by the IJ, he provided Barker never sought a judicial review of the Board’s dismissal decision. 2 not received oral and written notice of the Tipu v. INS,
20 F.3d 580, 582 (3d Cir. consequences for failing to voluntarily 1994). In reviewing the Board’s findings depart. Nor did she explain why she of fact under the substantial evidence remained in the United States beyond her standard, this Court’s scope of review is voluntary departure period. narrow. Sevoian, at 171. An alien seeking judicial reversal of findings of facts by the The Board denied Barker’s motion Board must show that the evidence was to reopen on two grounds. First, the Board “so compelling that the no reasonable concluded that the motion was filed factfinder could fail to find” in her favor. untimely. Second, the Board concluded Elias-Zacarias v. INS,
502 U.S. 478, 483- that Barker was statutorily barred, under § 84 (1992). 240B(d) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(d), from The Supreme Court has identified applying for certain forms of discretionary three independent grounds for the denial of relief, absent a showing of exceptional a motion to reop en im mig ration circumstances for failing to depart proceedings: (1) the movant’s failure to voluntarily. Specifically, the Board noted, establish a prima facie case for the relief contrary to Barker’s assertion, that she sought; (2) the movant’s failure to may otherwise qualify for an adjustment of introduce previously available, material status “[was] not sufficient to establish evidence that justifies reopening; or (3) a exceptional circumstances,” “such as determination that even if the above two serious illness of the alien or death of an requirements were met, the movant would immediate relative of the alien, but not not be entitled to the discretionary grant of including less compelling circumstances relief sought. INS v. Abudu,
485 U.S. 94, beyond the control of the alien.” (Brackets 105 (1988); Sevoian, at 169-70. “Motions omitted.) The Board noted that Barker had for reopening of immigration proceedings received both oral and written notice of the are disfavored. . . . This is especially true consequences of failure to depart in a deportation proceeding, where, as a voluntarily and she had failed to depart general matter, every delay works to the voluntarily as ordered. The Board disadvantage of the deportable alien who therefore concluded that Barker was wishes merely to remain in the United statutorily barred from applying for States.” INS v. Doherty,
502 U.S. 314, suspension of deportation and adjustment 323 (1992). of status. This appeal followed. A. II. On appeal, Barker argues first that This Court has appellate the Board erred in denying her motion to jurisdiction to review the Board’s denial of reopen because the IJ failed to provide her a motion to reopen. Sevoian v. Ashcroft, with proper notice of the consequences for
290 F.3d 166, 169 (3d Cir. 2002). This failing to depart voluntarily. 2 Specifically, Court reviews the Board’s denial of a motion to reopen on grounds of failure to 2 make out a prima facie case for abuse of Barker also argues on appeal that her discretion, and the Board’s findings of fact motion to reopen was timely filed. The for substantial evidence.
Id. at 173. Under respondent-appellee, John D. Ashcroft, the abuse of discretionary standard, the Attorney General of the United States, Board’s decision is reversible only if it is agrees with her argument in this regard, “arbitrary, irrational, or contrary to law.” conceding that the Board erred in concluding that Barker’s motion to 3 she argues that the IJ failed to provide the voluntarily “without a very good excuse, requisite oral notice to her of each of the for example, if you get seriously sick or consequences of failing to depart injured” is insufficient explanation of the voluntarily, specifically the consequences statutory requirement of “exceptional of losing the benefits of suspension of circumstances” because the judge’s words deportation or adjustment of status.3 She were “vague.” Barker argues next that the argues that the IJ’s general warning that Board erred in holding that she was she would “lose the right to apply for ineligible for filing a motion to reopen. certain kinds of important immigration B. benefits for a period of five years” is insufficient. In addition, she argues that Contrary to Barker’s second the IJ’s oral warning of a failure to depart argument, the Board never held in its decision denying her motion to reopen that she was ineligible for filing a motion to reopen. The Board’s decision was based reopen was untimely filed. on her statutory ineligibility to apply for 3 Section 242B(e)(2), 8 U.S.C. § suspension of deportation or adjustment of 1252b(e)(2) (1994) provides: status, absent a showing of “exceptional circumstances,” for her failure to depart (A) In General voluntarily as ordered. The Board Subject to subparagraph (B), any alien concluded that she showed no statutorily allowed to depart voluntarily under defined “exceptional circumstances.” section 1254(e)(1) of this title or who has Barker has not disputed this conclusion on agreed to depart voluntarily at his own appeal. Barker’s extensive second expense under section 1252(b)(1) of this argument is, therefore, misguided.4 title who remains in the United States As correctly noted by the appellee, after the scheduled date of departure, Barker failed to raise in her previous other than because of exceptional motion to reopen that she did not receive circumstances, shall not be eligible for adequate or sufficient oral notice of the relief described in paragraph (5) for a consequences of failing to depart period of 5 years after the scheduled date voluntarily. Her failure to raise this issue of departure or the date of unlawful before the Board bars this Court’s reentry, respectively. consideration of this claim now. Alleyne v. INS,
879 F.2d 1177, 1182 (3d Cir. (B) Written and oral notice required 1989) (citing Campos-Guardado v. INS, Subparagraph (A) shall not apply to an alien allowed to depart voluntarily unless, before such departure, the 4 Attorney General has provided written Because Barker misinterprets the basis notice to the alien in English and Spanish of the Board’s denial of her motion to and oral notice either in the alien's native reopen, this Court will not consider language or in another language the alien another argument of hers on appeal that understands of the consequences under the Board’s construction of §§ subparagraph (A) of the alien's remaining 242B(e)(2(A) of the Immigration and in the United States after the scheduled Nationality Act violates the Equal date of departure, other than because of Protection Clause of the United States exceptional circumstances. Constitution, which is based on such misinterpretation. 4
809 F.2d 285, 291 (5th Cir.), cert. denied, deportation proceedings because of her
484 U.S. 826(1987); Florez-De Solis v. failure to abide by the Order of Voluntary INS,
796 F.2d 330, 335 (9th Cir. 1986). Departure. See Fiallo v. Bell, 430 U.S. This Court will not, therefore, review 787, 792 (1977) (immigration legislation is Barker’s first argument; it was not raised “subject only to narrow judicial review”); before the Board.5 United States v. Pollard,
326 F.3d 397, 405-406 (3d Cir. 2003). III. Accordingly, the Board’s decision In conclusion, we emphasize that of denying Barker’s motion to reopen her what bars the reopening of Barker’s deportation proceedings will be affirmed. deportation proceedings is her unexcused Costs taxed against the appellant. failure to comply with the Order of Voluntary Departure. It was granted to her as a privilege in response to her request. “A grant of voluntary departure allows a deportable alien to leave the country without suffering the consequences of a formal deportation order. A deported alien is excludable from the country for five years,
8 U.S.C. § 1182(a)(17) (1982), and commits a felony if he or she ever returns without permission.
8 U.S.C. §§ 1252(f), 1326 (1982).” Cunanan v. INS,
856 F.2d 1373, 1374 n.1 (9th Cir. 1988). Unfortunately, Barker did not avail herself of the privilege of voluntary departure. The penalty for her unexcused failure may appear to be harsh in view of her recent marriage, but this Court notes that her failure to depart voluntarily has also caused INS to “[become] involved in further and more costly procedures” by expending additional resources in removing her that could have been avoided had she complied with the original order requested by herself. See Zazueta-Carrillo v. Ashcroft,
322 F.3d 1166, 1173 (9th Cir. 2003) (quoting Ballenilla-Gonzalez v. INS,
546 F.2d 515, 521 (2d Cir.1976)). We do not have the discretionary power to lift the statutory bar against reopening her 5 We note here, however, that Barker’s first argument has no merit because the record clearly shows that the IJ provided both adequate oral and written notice as statutorily required. 5
Document Info
Docket Number: 02-3927
Filed Date: 9/1/2004
Precedential Status: Precedential
Modified Date: 10/13/2015