Lopez-Chavez, Jose L v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1761
JOSE L. LOPEZ-CHAVEZ,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A77 775 099
____________
SUBMITTED APRIL 29, 2004—DECIDED SEPTEMBER 9, 2004
____________
Before COFFEY, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Aliens seeking judicial
review of immigration decisions routinely file motions to
stay removal pending appeal, and it is well-established that
this court has jurisdiction to grant such stays. See, e.g.,
Sofinet v. INS, 188 F.3d 703 (7th Cir. 1999) (Sofinet I). Less
commonly, aliens also move to stay voluntary departure
orders. Although it is clear that the courts of appeals have
no jurisdiction over the original decision of the immigration
authorities to grant or deny the privilege of voluntary
departure, the question whether the date by which volun-
tary departure must take place can be stayed to preserve
2 No. 04-1761
the status quo pending judicial review presents a different
issue. This court has never had occasion to decide expressly
whether we have the authority to grant such a stay.
In the present case, petitioner Jose Lopez-Chavez filed a
motion seeking two kinds of relief: first, a stay pending
judicial review of his removal from the country, and second,
a stay pending judicial review of the date by which his
voluntary departure had to occur. Concluding that the merits
of his underlying claims did not warrant any kind of stay,
and observing that his voluntary departure period was set
to expire three days after he filed his motion, this panel de-
nied the motion with a note in the order that an opinion
explaining the jurisdictional basis of our decision would
follow. This opinion furnishes that explanation.
I
Voluntary departure is an alternative to removal (as de-
portation is now called) that the immigration service may
grant in its discretion. An alien who has been granted this
privilege is entitled to leave the country at her own expense
within a certain period of time (usually up to 60 days). 8
U.S.C. § 1229c(a), (b) (2004). For the government, voluntary
departure expedites and reduces the cost of removal. Rife v.
Ashcroft, 374 F.3d 606, 614 (8th Cir. 2004). For aliens,
voluntary departure is desirable because it allows them to
choose their own destination points, to put their affairs in
order without fear of being taken into custody at any time,
to avoid the stigma and various penalties associated with
forced removals (including extended detention while the
government procures the necessary travel documents and
ineligibility for readmission for a period of five or ten years,
see 8 U.S.C. § 1182(a)(9)(A)), and it facilitates the possibil-
ity of return to the United States, for example, by adjust-
ment of status. Rife, 374 F.3d at 614; Sofinet v. INS, 196
F.3d 742, 748 (7th Cir. 1999) (Sofinet II). Alongside these
No. 04-1761 3
benefits, however, are some serious detriments to a volun-
tary departure. Although leaving the country no longer
moots an alien’s appeal if it falls (as Lopez-Chavez’s does)
under the permanent rules of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), see Rife,
374 F.3d at 615, departure makes it difficult as a practical
matter for the alien to appeal the underlying immigration
decision and subjects the alien, at least in an asylum case,
to the risk that she will suffer the very persecution at issue in
the proceeding (which obviously can include imprisonment
or death) before the appeal can be completed. See Rife, 374
F.3d at 615; Khalil v. Ashcroft, 370 F.3d 176, 181 (1st Cir.
2004); Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.
2003) (per curiam). On the other hand, failure to depart
voluntarily (if that privilege has been granted) carries its
own penalties: relinquishment of any posted bond, a fine of
between $1000 and $5000, and ineligibility for a period of
ten years for various forms of immigration relief. 8 U.S.C. §
1229c(b)(3), (d). Thus, aliens who are granted voluntary
departure face a difficult choice: either follow the rules,
depart voluntarily, and obtain a few benefits, at the price of
serious or fatal difficulty in pursuing relief and exposure to
intolerable conditions in the country of destination; or break
the rules by failing to leave, accept the penalties associated
with that failure, and continue to press any appeals. See
Nwakanma, 352 F.3d at 327; Ademi v. INS, 31 F.3d 517,
521 n.8 (7th Cir. 1994); Kaczmarczyk v. INS, 933 F.2d 588,
598 (7th Cir. 1991). But see Ngarurih v. Ashcroft, 371 F.3d
182, 194 (4th Cir. 2004) (positing that aliens must accept
both benefits and burdens of voluntary departure if they
apply for it). This case presents the question whether a
court has the power to give some relief to an alien who has
filed a timely motion to stay a voluntary departure (that is,
the alien has requested the stay prior to the date fixed for
departure).
As we indicated earlier, this case does not present the
question whether courts have jurisdiction to review the
4 No. 04-1761
merits of an underlying decision on a request for voluntary
departure; it is perfectly clear that they do not. 8 U.S.C.
§ 1229c(f) (“No court shall have jurisdiction over an appeal
from denial of a request for an order of voluntary departure
. . . .”); Sofinet II, 196 F.3d at 748. The question here is the
distinct one whether, once the immigration authorities in
their discretion have chosen to grant such a request, is it
within the power of the court to stay the time by which the
voluntary departure must take place? We must first clarify
precisely what relief the alien is seeking when she moves to
“stay” a voluntary departure order. Essentially, the alien
seeks to ensure that if the voluntary departure period expires
before the court reaches a decision on the petition for
review (which almost always occurs, see Ademi, 31 F.3d at
521 n.8), she still will be able to depart voluntarily if the
petition for review is denied. Staying a voluntary departure
order merely tolls the voluntary departure period; after the
stay expires (either because of an unfavorable decision or
otherwise), the clock begins ticking again and the alien has
the balance of the days left in which to leave the country.
See Desta v. Ashcroft, 365 F.3d 741, 743-44 (9th Cir. 2004).
Although some of our cases might be read to suggest that
courts do not have jurisdiction to stay voluntary departure
orders, we have never decided this issue conclusively. Ad-
dressing a different question, this court held before the
passage of IIRIRA that we lacked “authority” to reinstate
(essentially, restart in full) a voluntary departure period
after a decision on a petition for review, because only the
immigration service possessed that discretion. See Ademi,
31 F.3d at 521; Zulbeari v. INS, 963 F.2d 999, 1001 (7th Cir.
1992); Kaczmarczyk, 933 F.2d at 597-98. Full reinstate-
ment, however, is very close in practical effect to an initial
grant of the privilege of voluntary departure, and thus those
decisions merely reflect an effort not to undermine the im-
migration service’s authority over initial grants. See Ngarurih,
371 F.3d at 197 (Gregory, J., dissenting); Garcia v. Ashcroft,
No. 04-1761 5
368 F.3d 1157, 1159 (9th Cir. 2004). Moreover, it is unclear
from these cases whether we were recognizing a jurisdic-
tional bar or merely a discretionary rule, for we also cautioned
that we might reconsider our position should it appear that
the immigration service was using its discretion not to ex-
tend voluntary departure periods in an effort to deter aliens
from seeking judicial review of immigration decisions. See
Ademi, 31 F.3d at 521 n.8; Kaczmarczyk, 933 F.2d at 598.
More recently, we observed that IIRIRA stripped courts of
jurisdiction to review the immigration service’s decisions
with respect to voluntary departure. See Lalani v. Perryman,
105 F.3d 334, 335-37 (7th Cir. 1997). In Lalani, however,
the question concerned possible review of a decision by the
responsible immigration official refusing to extend a vol-
untary departure date; the question of a court’s power to
preserve the status quo pending judicial review never came
up. Current administrative regulations specify that only
certain immigration officials have jurisdiction to extend the
length of voluntary departure periods. See 8 C.F.R.
§ 1240.26(f) (2004) (“Authority to extend the time within
which to depart voluntarily specified initially by an immi-
gration judge or the Board is only within the jurisdiction of
the district director, the Deputy Executive Associate
Commissioner for Detention and Removal, or the Director
of the Office of Juvenile Affairs.”) But the regulation’s label,
“Voluntary departure—authority of the Executive Office for
Immigration Review,” suggests that it regulates the
authority of only the executive branch, and not that of the
courts. See Khalil, 370 F.3d at 181. But see Reynoso-Lopez
v. Ashcroft, 369 F.3d 275, 280 (3d Cir. 2004) (holding that
a court has no power to reinstate an already-expired time
period for voluntary departure, and indicating in dicta that
it similarly could not extend that period).
Several of our sister courts, including the Sixth, Eighth,
and Ninth Circuits, have held recently that courts retain
the equitable power to stay voluntary departure orders,
6 No. 04-1761
notwithstanding the restrictions that exist under IIRIRA,
when such an action is taken to preserve meaningful judi-
cial review. See Rife, 374 F.3d at 614-15 (8th Cir.); Desta,
365 F.3d at 747-48 (9th Cir.); Nwakanma, 352 F.3d at 327
(6th Cir.); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th
Cir. 2003). As the Ninth Circuit noted in Desta:
IIRIRA does not specify the circumstances in which we
may issue a stay of voluntary departure, and therefore
does not act as a bar to the use of our equitable powers.
IIRIRA deprives us of jurisdiction to review the decision
by the BIA to grant or deny a request for voluntary
departure, but we are not being asked to review such a
decision. Desta has already been granted voluntary
departure, once by the IJ and again by the BIA.
Rather, . . . we are being asked to stop the voluntary
departure clock from running while we consider Desta’s
petition for review, and to allow it to resume after we
decide the merits of the petition.
365 F.3d at 747 (citations omitted).
On the other hand, at least one circuit has rejected this
analysis, and another appears to have done so in dicta. In
Ngarurih, 371 F.3d at 191-95, the Fourth Circuit held that
courts do not have jurisdiction under IIRIRA to stay vol-
untary departure orders. In reaching this conclusion, the
Fourth Circuit relied on IIRIRA’s provisions in 8 U.S.C.
§ 1229c(f) that “[n]o court shall have jurisdiction over an
appeal from denial of a request for an order of voluntary
departure” and in §1252(a)(2)(B) that “[n]otwithstanding
any other provision of law, no court shall have jurisdiction
to review—(I) any judgment regarding the granting of relief
under section . . . 1229c.” See id. at 193. But we agree with
the dissent in Ngarurih that these provisions are best read
to restrict judicial review of only the initial decision to grant
or deny voluntary departure. See id. at 197-98 (Gregory, J.,
dissenting). Additionally, the majority in Ngarurih noted
No. 04-1761 7
that there is no longer a practical rationale for staying
voluntary departure because leaving the country no longer
moots an alien’s appeal. See id. at 192. True—but this
analysis underestimates the difficulty that aliens will likely
encounter in pursuing appeals from afar and the possibility
that they will be subjected to the persecution that they are
trying to avoid before relief on appeal may be granted. The
Third Circuit rejected the power to reinstate a voluntary
departure period in Reynoso-Lopez, supra, using language
that also appeared to cover extensions. It did not, however,
expressly address the case of a person who filed a timely
motion for a stay, in conjunction with a properly filed
petition for judicial review, before the time to depart had
expired.
Based on these considerations, we find persuasive the
analysis of the majority of the circuits that have addressed
the issue and hold that in an appropriate case, one that
falls under the permanent IIRIRA rules and in which the
time for voluntary departure has not yet run, nothing in
IIRIRA divests us of the power to grant a stay tolling the
time for departure until the completion of judicial review if
the other prerequisites to such equitable relief are satisfied.
This rule does not contravene any restrictions on judicial
review that exist under IIRIRA because, as explained in
Desta, a stay in conjunction with judicial review does not
and cannot have an effect on the decision whether to grant
or deny voluntary departure in the first place, nor does it
change the amount of time granted—it merely preserves the
balance of days left in the voluntary departure period. This
allows aliens in deserving cases to pursue judicial review
without flouting their voluntary departure orders, thus
upholding the equitable considerations first expressed in this
court’s opinions in Ademi and Kaczmarczyk.
In Lopez-Chavez’s case, the decision reflected in our order
was a decision that Lopez-Chavez was not entitled to such
a stay on the merits, not a decision that we lacked power to
8 No. 04-1761
consider his request. We express no opinion at this time on
the question whether we would have the power somehow to
stay voluntary departure if the permissible time period
expired before the filing of the stay motion (which could be
seen as the practical equivalent of “reinstating” the volun-
tary departure period).
II
We conclude with a brief word about our evaluation of
Lopez-Chavez’s twin requests for a stay of removal and a
stay of voluntary departure. One of the factors that we con-
sider in evaluating such requests is likelihood of success on
the merits. See Sofinet I, 188 F.3d at 706. That alone is
fatal to Lopez-Chavez’s motion. By way of background, in
1999 Lopez-Chavez, a native of Mexico living in the United
States, submitted by mail an application for adjustment of
his immigration status to that of a lawful permanent
resident under Section 245(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1255(I). The former Immigration
and Nationalization Service (INS) denied his application
because an immigrant visa was not immediately available; it
did not return to him either his application or the filing fee.
Rather, using the information that he provided on the
application, the INS initiated removal proceedings against
him. Lopez-Chavez contested removability and moved to
suppress the information contained on his application,
which the INS conceded was the only evidence it had of his
alienage and removability. He argued that his application
should have been suppressed because the INS violated its
own regulations by not returning the application to him
once it concluded that a visa was not available, and that
without the information contained in the application, there
was no evidentiary basis supporting his removal from the
country. An Immigration Judge (IJ) rejected this argument,
holding that the INS had not violated its regulations and
No. 04-1761 9
that, even if it had, the violation did not require the
evidence to be excluded.
Even if Lopez-Chavez could show that an administrative
violation of this sort requires suppression of his application,
see Martinez-Camargo v. INS, 282 F.3d 487, 491 (7th Cir.
2002), the IJ concluded correctly that the INS had not
violated its regulations. The regulation that governed the
processing of applications for adjustment of status, 8 C.F.R.
§ 245.2(a)(2)(I) (2000), indicates that the INS was required
to return applications only in specified circumstances:
Before an application for adjustment of status under
section 245 of the Act may be considered properly filed,
a visa must be immediately available. If a visa would be
immediately available upon approval of a visa petition,
the application will not be considered properly filed
unless such petition has first been approved. If an
immediate relative petition filed for classification under
section 201(b)(2)(A)(I) of the Act or a preference petition
filed for classification under section 203(a) of the Act is
submitted simultaneously with the adjustment applica-
tion, the adjustment application shall be retained for
processing only if approval of the visa petition would
make a visa immediately available at the time of filing
the adjustment application. If the visa petition is
subsequently approved, the date of filing the adjust-
ment application shall be deemed to be the date on
which the accompanying petition was filed.
But, as the IJ pointed out, Lopez-Chavez’s application did
not meet the one condition for which the obligation to re-
turn was clear, namely, submitting an application simulta-
neously with an immediate relative petition or a preference
petition. Moreover, the INS’s operations instructions stated
that applications received by mail for which visas were not
available were not to be returned to applicants:
An application received by mail accompanied by the
proper fee shall be immediately reviewed upon receipt
10 No. 04-1761
in Examinations. . . . An application submitted without
fee or without signature should be returned to the ap-
plicant by RA&I (AM 2793.24) and shall not be routed
to Examinations. When Examinations determines that
an application has not been properly filed because a
visa is not available and that availability of a visa can-
not be achieved by approval of a visa petition or issu-
ance of a labor certification, the application shall not be
returned to the applicant; instead, he/she shall be sent
an explanatory notice of rejection with such other
advice as may be appropriate and shall be informed
that a refund of his/her fee is being considered.
OI § 245.2(a) (emphasis added). The IJ found that Lopez-
Chavez submitted his application by mail, and Lopez-
Chavez does not claim otherwise. Therefore, it does not
appear that the INS violated its regulations by retaining
Lopez-Chavez’s application—to the contrary, it followed the
operations instruction in OI §245.2(a) by not returning
it—and thus, exclusion of the application as evidence of his
removability was not warranted.
The merits of Lopez-Chavez’s underlying claims thus did
not warrant either a stay of removal or a stay of the vol-
untary departure order. For these reasons, both requests
were DENIED. Finally, we note that after the denial of Lopez-
Chavez’s stay motion and his departure from the country,
he moved voluntarily to dismiss his petition for review. See
FED. R. APP. P. 42(b). This motion is GRANTED and his petition
for review is DISMISSED.
No. 04-1761 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-9-04