Long v. Gonzales ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 11, 2005
August 9, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-60399
VILY LONG
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL,* District Judge.
PER CURIAM:
Petitioner Vily Long appeals a decision by the Board of
Immigration Appeals that his departure from the United States
while his appeal to the BIA was pending resulted in a withdrawal
of his appeal under 8 C.F.R. § 1003.4. Because we conclude that
Long departed under § 1003.4, we DENY Long’s petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Vily Long, a citizen of Cambodia, entered the
*
District Judge of the Southern District of Texas,
sitting by designation.
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United States in February 1997 as a non-immigrant visitor for
pleasure. Long was authorized to remain in the United States
until August 15, 1997. He, however, remained in the United
States beyond the authorized period. Consequently, on September
22, 1997, the former Immigration and Naturalization Service
(“INS”)1 initiated removal proceedings and issued a Notice to
Appear, charging Long with remaining in the United States beyond
the authorized period. Long filed applications for asylum and
withholding of removal. Following a hearing, the Immigration
Judge (“IJ”) denied Long’s applications. In March 1998, Long
appealed to the Board of Immigration Appeals (“BIA”).
On July 28, 2000, the INS moved the BIA to dismiss summarily
Long’s appeal pursuant to former 8 C.F.R. § 3.4 (redesignated as
8 C.F.R. § 1003.4, effective February 28, 2003), arguing that
Long’s departure from the United States to Mexico while his
appeal was pending served to withdraw his appeal. Long filed a
response to the INS’s motion, arguing that although a “voluntary”
departure during a pending appeal would serve to withdraw that
appeal, an “involuntary” departure from the United States did not
automatically constitute a withdrawal of a pending appeal.
Consistent with his argument, Long alleged that his departure
from the United States into Mexico was “involuntary.”
On January 7, 2003, the BIA issued an order remanding the
1
The Homeland Security Act of 2002 transferred the
functions of the INS to the Department of Homeland Security. See
6 U.S.C. §§ 251(2), 252(a)(3), 271(b).
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case to the IJ for further fact finding. The BIA noted that
whether an alien’s appeal is withdrawn under § 3.4 by virtue of
the alien’s “involuntary or unknowing departure from the United
States” appeared to be a question of first impression in this
circuit. The BIA specifically found that “the lone term
‘departure’ in 8 C.F.R. [§] 3.4 as to withdrawals of appeals is
not meant to reach involuntary removals from the country.”
Because the BIA lacked the authority to make factual findings
based on the affidavits before it, it “decide[d] only that,
assuming the facts show that the respondent’s departure to Mexico
was not voluntary on his part, his appeal was not thereby
‘withdrawn’ under 8 C.F.R. [§] 3.4.” Accordingly, the BIA
remanded, instructing the IJ to make a factual determination as
to whether Long’s departure was involuntary.
On remand, following a hearing, the IJ made an express
determination that Long’s departure from the United States was
involuntary. The IJ set forth the following facts in support of
its determination: one Friday night in June 2000, Long and a
Cambodian colleague went sightseeing in Brownsville, Texas and
were escorted by Mario Lazcano.2 Prior to their departure, Long
made it clear to Lazcano, the driver of the vehicle, that he
could not go to Mexico. Lazcano was born in Brownsville but had
not been there for eighteen years. Although Lazcano did not
intend to take Long into Mexico, in attempting to drive to a park
2
Lazcano is spelled “Lezcano” in the hearing transcript.
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that he thought he remembered frequenting eighteen years ago,
Lazcano drove onto a bridge that crossed over to Mexico. Once on
the bridge, Lazcano asked someone for instructions on how to turn
around, and “he was advised how to turn around and comeback, but
what he wound up doing was going into Mexico and having to
present documentation to get back in.” In the interim, Long,
Lazcano, and Long’s colleague were robbed by Mexican police, who
took their papers and money. Thereafter, the three men attempted
to reenter the United States, but Long and his friend were
declined reentry for lack of documentation. Long contacted a
lawyer, and two days later he was allowed to reenter the United
States. The IJ noted that Long stated he could not have known
that he was leaving the United States because he could not read
English and he had been reassured by Lazcano that they would not
be going to Mexico. Accordingly, the IJ referred the case back
to the BIA and recommended that Long be allowed to proceed with
his appeal.
On April 9, 2004, the BIA found that Long’s appeal was
withdrawn pursuant to 8 C.F.R. § 1003.4. While the BIA noted
that it had previously indicated that an involuntary departure
from the United States would not result in the withdrawal of an
appeal and that the IJ ruled that Long’s departure was
involuntary, it found that “[u]pon further review, we find that
the respondent’s departure from the United States has resulted in
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a withdrawal of his appeal.”3 Long filed a petition for review,
arguing that the BIA erred in ruling that he had withdrawn his
appeal to the BIA pursuant to 8 C.F.R. § 1003.4 because of his
departure from the United States.
II. DISCUSSION
A. Standard of Review
We review the BIA’s legal conclusions de novo. Girma v.
INS, 283 F.3d 664, 666 (5th Cir. 2002) (per curiam); Lopez-Gomez
v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001) (per curiam). We
will defer to the BIA’s interpretation of immigration regulations
if the interpretation is reasonable. Lopez-Gomez, 263 F.3d at
444; Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). In
reviewing the BIA’s factual findings, we determine whether they
are supported by substantial evidence. Girma, 283 F.3d at 666;
Ozdemir v. INS, 46 F.3d 6, 7-8 (5th Cir. 1994) (per curiam); Chun
v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam).
Accordingly, we accept the factual findings of the BIA unless the
evidence is so compelling that no reasonable fact finder could
3
The BIA also decided that it lacked jurisdiction to
adjudicate Long’s application for adjustment of status under
section 245(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1255(a), which was based on a pending visa petition filed by
his U.S. citizen spouse on his behalf. The BIA reasoned that,
after effectuating his own removal and attempting to reenter the
United States from Mexico, Long was an “arriving alien.” See 8
C.F.R. § 1245.2(a)(1) (providing that “[a]fter an alien, other
than an arriving alien, is in deportation or removal proceedings,
his or her application for adjustment of status under section 245
of the Act or section 1 of the Act of November 2, 1966 shall be
made and considered only in those proceedings” (emphasis added)).
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fail to find otherwise. Lopez-Gomez, 263 F.3d at 444; Mikhael,
115 F.3d at 302.
B. Analysis
Section 1003.4 of Title 8 of the Code of Federal Regulations
provides:
Withdrawal of appeal.
In any case in which an appeal has been taken, the party
taking the appeal may file a written withdrawal thereof
with the office at which the notice of appeal was filed.
If the record in the case has not been forwarded to the
Board on appeal in accordance with § 1003.5, the decision
made in the case shall be final to the same extent as if
no appeal had been taken. If the record has been
forwarded on appeal, the withdrawal of the appeal shall
be forwarded to the Board and, if no decision in the case
has been made on the appeal, the record shall be returned
and the initial decision shall be final to the same
extent as if no appeal had been taken. If a decision on
the appeal has been made by the Board in the case,
further action shall be taken in accordance therewith.
Departure from the United States of a person who is the
subject of deportation proceedings subsequent to the
taking of an appeal, but prior to a decision thereon,
shall constitute a withdrawal of the appeal, and the
initial decision in the case shall be final to the same
extent as though no appeal had been taken. Departure
from the United States of a person who is the subject of
deportation or removal proceedings, except for arriving
aliens as defined in § 1001.1(q) of this chapter,
subsequent to the taking of an appeal, but prior to a
decision thereon, shall constitute a withdrawal of the
appeal, and the initial decision in the case shall be
final to the same extent as though no appeal had been
taken.
(emphasis added). On its face, § 1003.4 does not distinguish
between various types of departure. Long, however, citing to
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835 (9th Cir. 2003), Mejia-
Ruiz v. INS, 51 F.3d 358 (2d Cir. 1995), and Aleman-Fiero v. INS,
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481 F.2d 601 (5th Cir. 1973) (per curiam), argues that only a
“voluntary departure”4 can serve to withdraw an appeal under
§ 1003.4. Specifically, Long contends that because those cases
emphasize the fact that the aliens left the United States
“voluntarily,” those cases engrafted § 1003.4 with an exception
for involuntary departures. Because Long asserts that he left
the United States involuntarily, he concludes that his appeal was
not withdrawn under § 1003.4.
First, we do not read Aguilera-Ruiz, Mejia-Ruiz, and Aleman-
Fiero so liberally as to provide an exception to § 1003.4 for
“involuntary” departures. To do so would require us to read into
§ 1003.4 an exception that it neither expressly nor implicitly
provides. Second, Long’s actions were sufficient to withdraw his
appeal under § 1003.4. It may be clearer to analyze Long’s
actions under the concept of waiver. Waiver is an intentional
relinquishment or abandonment of a known right or privilege.
Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004);
Johnson v. Zerbst, 304 U.S. 458, 464 (1938); United States v.
Dodson, 288 F.3d 153, 160 (5th Cir. 2002).5 Long’s actions were
4
We note that, other than in addressing Long’s argument,
we avoid using the term “voluntary departure” because it is a
term of art that is used when the Attorney General has granted an
alien permission to depart the United States at the alien’s own
expense, in lieu of being subject to removal proceedings or prior
to the completion of such proceedings. See 8 U.S.C.
§ 1229c(a)(1). Long was not granted such a voluntary departure.
5
As distinguished from waiver, forfeiture is the failure
to assert a right. Kontrick, 540 U.S. at 458 n.13; Dodson, 288
F.3d at 161.
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sufficient to constitute a waiver of his right to appeal under
§ 1003.4. By his own free will, Long put himself in a position,
during the Friday night Brownsville sightseeing trip, where he
departed the United States. Long’s testimony, which the IJ
credited, indicates that he got into the car, knew that he was
going to the border, did not pay attention, and did not make sure
that others were paying attention to what was happening. Thus,
via his own actions, Long ended up in another country.6
Accordingly, pursuant to the plain language of § 1003.4 and
Long’s actions, Long’s departure was sufficient to withdraw his
appeal.
III. CONCLUSION
For the foregoing reasons, we DENY Long’s petition for
review.
6
We save for another the day the question whether, in
the absence of a waiver, an alien can be held to have withdrawn
his appeal when he departs the United States (e.g., when an alien
is forcibly removed from the country). That question is not
before us since Long waived his appeal through his own action.
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