Martinez Barroso v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JUAN MARTINEZ BARROSO, 
Petitioner, No. 03-72552
v.
 Agency No.
A75-522-220
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 3, 2005—Pasadena, California
Filed November 18, 2005
Before: Donald P. Lay,* Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Reinhardt
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
15399
BARROSO v. GONZALES 15403
COUNSEL
Ricardo Alberto Figueroa, Long Beach, California, for the
petitioner.
Peter D. Keisler, Assistant Attorney General; Robert M. Loeb,
Attorney; Charles W. Scarborough, Attorney; Appellate Staff
Civil Division, Department of Justice, Washington, D.C., for
the respondent.
OPINION
REINHARDT, Circuit Judge:
Jose Juan Martinez Barroso (“Barroso”) petitions this court
for review of a Board of Immigration Appeals (“BIA”) order
denying his motion to reconsider its previous denial of his
appeal. Barroso’s motion to the BIA alleged ineffective assis-
tance of counsel and the denial of Barroso’s right to counsel
of his choice. The BIA denied Barroso’s ineffective assistance
of counsel claim, but did not address his denial of counsel
claim. In addition, the BIA denied Barroso relief because he
had failed to depart within his voluntary departure period. We
hold that where an alien files a timely motion to reconsider
before his voluntary departure period has expired, his volun-
tary departure period is automatically tolled while he is await-
ing a decision from the BIA on his motion. We also hold that
the BIA abused its discretion in failing to address Barroso’s
denial of counsel claim. Accordingly, we remand to the BIA
15404 BARROSO v. GONZALES
for a determination of whether Barroso was denied his statu-
tory right to counsel of his choice.1
I. BACKGROUND
Barroso is a native of Mexico who entered the United
States in 1985. In 1998, he decided, in his words, to “put an
end to his unregulated stay in the United States” and went in
search of an attorney. He made the ill-fated choice of retain-
ing Abad “Nork” Cabrera (“Cabrera”). Although Cabrera told
Barroso that he was an attorney, he was not; instead he was
a “notarial,” or an immigration consultant. These people, also
called “notarios,” are notorious in Southern California for
preying on the immigrant community.2 The Immigration
Judge (“IJ”) in this case went so far as to call them “poison.”
Throughout Barroso’s case, he thought that Cabrera was his
lawyer. He retained Cabrera, provided him with all of his doc-
umentation, consulted with him, and paid him for legal ser-
vices. He was under the impression that the other attorneys he
met on the courthouse steps who appeared in immigration
court on his behalf all worked for Cabrera. Barroso may have
had licensed lawyers appear with him in court, but all of his
legal advice came from Cabrera. Indeed, the last two lawyers
1
Because we are remanding the case on this ground, we do not reach
Barroso’s ineffective assistance of counsel claim.
2
Due to a semantic and cultural misunderstanding, Latino immigrants
are particularly at risk of being exploited by “notarios.” Anne E. Langford,
Note, What’s in a Name? Notarios in the United States and Exploitation
of a Vulnerable Latino Immigrant Population, 7 HARV. LATINO L. REV.
115, 116 (2004). Latino immigrants often mistakenly believe that “no-
tarios” are lawyers because in many Latin American countries, notarios
are “a select class of elite attorneys subject to rigorous examinations, regu-
lation, and codes of professional responsibility.” Id. (internal quotation
marks omitted). In the state of Nueva Leon in Barroso’s native country
Mexico, an attorney must have practiced law for at least five years and
pass a “famously difficult” exam before being designated a “notario.” Id.
at 120.
BARROSO v. GONZALES 15405
who “represented” him did not speak Spanish and, as Barroso
does not speak English, they did not communicate at all.
The first thing Cabrera told Barroso to do was to file an
application for political asylum. This advice was inexplicable,
given that Barroso had no fear of returning to Mexico. The
consequence of this advice, however, was that he came to the
attention of the Immigration and Naturalization Service
(“INS”), which served him on May 22, 1998, with a Notice
to Appear before the immigration court.
At his first hearing, Barroso was represented by Xavier
Vega (“Vega”), an attorney provided by Cabrera. During that
hearing, Barroso withdrew his asylum application and indi-
cated that he wanted to apply for cancellation of removal and,
in the alternative, for voluntary departure. Vega was supposed
to file the application for cancellation of removal on Septem-
ber 9, 1998. However, on that date, Vega was absent from
court and had not filed it. Cabrera had obtained another attor-
ney for Barroso, Ronald Peake (“Peake”), who asked for a
continuance in order to do so. The continuance was granted.
To this end, Barroso supplied Cabrera with documentation
about his qualifying relatives, physical presence, and moral
character; he was told that an application on his behalf would
be filed on time.
On the appointed date, February 19, 1999, Barroso arrived
in court as scheduled, but Peake failed to appear. Peake had
also neglected to file the application for cancellation of
removal. The IJ continued the hearing until March 12, 1999,
but stated that the application must be filed by that date.
On March 12, 1999,3 Ramin Ghashghaei (“Ghashghaei”),
3
Although the transcript of this hearing in the administrative record is
not dated, March 12th is the date that was set by the IJ at the prior hearing
on February 19th. Moreover, the record contains a Notice of Hearing
dated February 19th which states that the next hearing is scheduled for
March 12th. On this basis, we presume that the hearing occurred, as
scheduled, on March 12th.
15406 BARROSO v. GONZALES
appeared on behalf of Barroso. Although the record does not
reflect what occurred just prior to the hearing, we know that
there was some confusion about the representation because
the IJ told Ghashghaei, “Your client doesn’t know that you
have replaced Mr. Peake.” At this time, Ghashghaei filed the
application for cancellation of removal.4 The IJ set the next
hearing date for October 12, 1999. However, on July 6, 1999,
the court sent a notice that the hearing had been rescheduled
to February 17, 2000. There is no transcript in the record of
a hearing on February 17, 2000 having taken place. However,
the record shows that on February 17, 2000, a notice was
mailed to Ghashghaei, but not Barroso, stating that the next
hearing was scheduled for January 23, 2001. The record also
shows that on February 18, 2000, Ghashghaei submitted a
motion for continuance, requesting that the court re-schedule
the January 23rd hearing because of a conflict. A notice that
the hearing had been rescheduled for one day later, January
24, 2001, was mailed to Ghashghaei, but not to Barroso.5
At the hearing on January 24, 2001, Ghashghaei asked to
be relieved as counsel to Barroso, because Barroso had
retained new counsel due to communication problems with
Ghashghaei. The IJ dismissed Ghashghaei and asked Barroso
why his new counsel was not present. Barroso explained that
Ghashghaei had initially refused to give him the notice of the
hearing when he had asked for it. Barroso testified that
Ghashghaei “just recently” gave him notice that the hearing
was on January 24th, by which time “it was too late” for his
new attorney to be able to attend. The IJ refused to believe
Barroso, stating that Barroso had known about the hearing for
over a year since he had been present at the February 17, 2000
hearing. However, Barroso’s wife later testified that she and
4
The application was woefully inadequate; it did not include the evi-
dence Barroso had provided to Cabrera and lacked the documentary evi-
dence necessary for his case.
5
The record shows that notices for the September 9, 1998 and March 12,
1999 hearings had been sent to Barroso’s home address.
BARROSO v. GONZALES 15407
her husband had not come inside the courtroom on February
17, 2000. She explained that they waited outside and when
Ghashghaei emerged from the courtroom, he told them he had
obtained an extension but never gave them notice of the hear-
ing date until the night before the January 24th hearing.
The IJ also pressed Barroso on why he did not simply
retain Ghashghaei as his lawyer. Barroso explained that he
could not communicate with Ghashghaei because of the lan-
guage barrier and that Ghashghaei had never given Barroso an
appointment so that Barroso could bring in his documents and
speak with him. The IJ again did not believe Barroso’s claim,
stating that Ghashghaei is “a conscientious and responsible
attorney.”
Despite Barroso’s explanation of why he had discharged
Ghashghaei and why his new counsel was unable to attend the
hearing, and despite his expressed desire to be represented by
his new attorney, the IJ refused to grant Barroso a continu-
ance so that he could appear with his new attorney:
JUDGE to MARTINEZ BARROSO
Q. . . . This case has been continued again and
again. You have changed lawyers twice. And
you have always until the last minute before
your hearing. So I don’t know exactly what
your intention is, but it seems to me that what
you are doing [sic] to do is delay the case. So
I am not going to give you any further continu-
ances. Your case will be heard today. And it
will either be granted or denied today.
A. The only thing if you can give me a last chance.
I am not asking much, a month to two months
so I can bring everything so I can present it for
this case.
15408 BARROSO v. GONZALES
Q. I can’t do that. The reason you have gotten so
many long continuances is because my calendar
right now is out to September 2002. I can give
you a hearing earlier than that only on an emer-
gency basis. And the only emergency basis in
this Court is asylum cases or cases where peo-
ple are about to lose eligibility for relief which
is not your situation. So I am not going to give
you a continuance. You will have your case
today. You can testify and you can call your
wife as a witness if you want.
At that point, Barroso was immediately sworn in to testify
and forced to proceed without an attorney or any knowledge
of the immigration laws. Because Barroso’s new attorney had
assured him that he would be able to obtain a continuance,
Barroso did not have any of his supporting documentation or
witnesses, other than his wife, with him that day.
Barroso testified that he first came to the United States in
1985. In 1988, he was convicted of drunk driving. He was
arrested when he attempted to enter the United States illegally
in 1989, served forty-five days in jail, and was deported to Mex-
ico.6 He returned illegally in 1990. Barroso married Juana
Gomez (“Gomez”), a permanent resident of the United States,
in 1998. Gomez was awaiting her citizenship papers at the
time of the January 24, 2001 hearing, so she had not filed a
motion on his behalf for adjustment of status, on the advice
of “notarial” Cabrera. Barroso’s three children were born by
a former spouse, now deceased, in the United States.
During the hearing it became clear that Barroso had
believed the notarial, Cabrera, to be his lawyer. The IJ
responded to the fact that Barroso had been defrauded by
Cabrera in the following way:
6
The record does not contain any documentary evidence about this
deportation.
BARROSO v. GONZALES 15409
The people you have chosen to deal with have no
legal obligations. If they cheat you, that is just too
bad. There is nothing you can do about it. And you
would have been much wiser to listen to your attor-
neys instead of listen to notarials. And you may pay
the price for that.
The IJ denied Barroso’s application for cancellation of
removal. He recited the four criteria for eligibility for cancel-
lation of removal: (1) continuous physical presence for ten
years preceding the alien’s application; (2) good moral char-
acter; (3) no convictions for certain criminal offenses; and (4)
exceptional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a United States citizen or an
alien lawfully admitted for permanent residence. As to the
first criterion, the judge stated that Barroso “probably” had
ten years total in the country, however his 1990 deportation
might disrupt a finding of ten years continuous presence. The
IJ found that Barroso met both the second and third eligibility
criteria. As to the fourth criterion, the IJ held that Barroso’s
case was not sufficiently exceptional and extremely unusual
to merit a finding of hardship.
The IJ also stated in his oral decision that Barroso had
“been cheated and . . . lied to” and had been subjected to “ex-
ceptionally inadequate legal counsel.” However, the IJ found
that Barroso’s reliance on Cabrera’s legal counsel had been
unreasonable. The IJ stated that “[t]he strategy adopted by
Mr. Cabrera is obviously to wait until right before the hearing
after as many continuances as possible and then switch attor-
neys at the last minute to get another continuance.”
The IJ granted Barroso voluntary departure. Barroso
appealed the IJ’s decision to the BIA on the basis of ineffec-
tive assistance of counsel. On February 20, 2003, the BIA
affirmed the IJ’s decision on the ground that Barroso had not
complied with the conditions set forth in Matter of Lozada, 19
I. & N. Dec. 637 (1988), for establishing ineffective assis-
15410 BARROSO v. GONZALES
tance of counsel. The BIA granted Barroso a thirty-day period
for voluntary departure. On March 24, 2003, Barroso filed a
motion to reconsider with the BIA in which he asserted two
claims: first, ineffective assistance of counsel, and second,
that he was denied his statutory right to counsel of his choice
when the IJ insisted on conducting the hearing without obtain-
ing a valid waiver of his statutory right to such counsel.7
On June 10, 2003, the BIA denied his motion on two
grounds. First, the BIA concluded that pursuant to 8 U.S.C.
§ 1229c(d) (§ 240B(d) of the Immigration and Nationality Act),8
Barroso’s failure to depart the United States within his thirty-
day voluntary departure period barred him from applying for
cancellation of removal and made him statutorily ineligible
for the relief sought. Second, the BIA found that the record
did not support a claim of ineffective assistance of counsel
and that Barroso had not shown that he was prejudiced by the
actions of a former representative. Inexplicably, the BIA did
not address Barroso’s claim that he was denied his right to
counsel of his choice. Barroso timely filed a petition for
review with this court.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the BIA’s June 10, 2003
denial of Barroso’s motion to reconsider pursuant to 8 U.S.C.
7
8 U.S.C. § 1362 provides,
In any removal proceedings before an immigration judge and in
any appeal proceedings before the Attorney General from any
such removal proceedings, the person concerned shall have the
privilege of being represented (at no expense to the Government)
by such counsel, authorized to practice in such proceedings, as he
shall choose.
8
The statute provides that, “If an alien is permitted to depart voluntarily
under this section and fails voluntarily to depart the United States within
the time period specified, the alien shall . . . be ineligible for a period of
10 years for any further relief under . . . section[ ] § 1229b . . . of this
title.” 8 U.S.C. § 1229c(d).
BARROSO v. GONZALES 15411
§ 1252(a). We review the BIA’s denial of a motion to recon-
sider for abuse of discretion. See Oh v. Gonzales, 406 F.3d
611, 612 (9th Cir. 2005).
III. ANALYSIS
A. Failure to Depart Within the Voluntary Departure
Period
[1] The BIA’s denial of Barroso’s motion to reconsider on
the ground that he failed to depart the United States within his
voluntary departure period reflects the “significant conun-
drum” produced by the interaction of the Immigration and
Nationality Act (“INA”)’s voluntary departure and motion to
reconsider provisions. Kanivets v. Gonzales, 424 F.3d 330,
334 (3rd Cir. 2005). On the one hand, the statute provides that
an alien who is permitted to depart voluntarily and fails to do
so within the specified time period is ineligible for ten years
for cancellation of removal. 8 U.S.C. § 1229c(d); see also 8
C.F.R. § 1240.26(a) (2005). On the other hand, the statute
provides aliens the right to file one motion to reconsider
within thirty days of the entry of an order of removal, 8
U.S.C. § 1229a(c)(6)(B);9 see also 8 C.F.R. § 1003.2(b)(2)
(2005),10 and the BIA ordinarily takes a significant period of
9
At the time Barroso filed his motion, the provisions governing motions
to reconsider were found at 8 U.S.C. § 1229a(c)(5). Congress recently
amended § 1229a(c), see Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, Division B -
REAL ID Act of 2005, Pub. L. No. 109-13, § 101(d), 119 Stat. 231, and
as a result, the provision governing Barroso’s motion presently is located
at 8 U.S.C. § 1229a(c)(6). The REAL ID Act did not change the substance
of the former § 1229a(c)(5) and for ease of reference, we refer to the cur-
rent provision throughout the opinion.
10
At the time Barroso filed his motion, regulatory provisions governing
motions to reopen and to reconsider were codified at 8 C.F.R. § 3.2. A
reorganization in 2003 placed the provisions in their current location at 8
C.F.R. § 1003.2 (2005). There are no differences between the former sec-
tion 3.2 and the current section 1003.2 that affect Barroso’s appeal, and,
for ease of reference, we cite to the current regulations throughout the
opinion.
15412 BARROSO v. GONZALES
time to decide the motion. Moreover, the BIA regulations
state that if an alien leaves the country within the period
allowed for voluntary departure, he forfeits any pending
motion to reopen or reconsider. See 8 C.F.R. § 1003.2(d)
(2005).11 As a result, an alien who does not leave the United
States within his voluntary departure period is not eligible for
adjustment of status, but an alien who does leave the country
within his voluntary departure period forfeits any pending
motion to reconsider or reopen which the BIA has not yet
decided. As a result, “[e]ither way, stay or go, under the
BIA’s interpretation, [aliens are] precluded from obtaining a
ruling on the merits of their properly filed, timely motion to
[reconsider].” Azarte v. Ashcroft, 394 F.3d 1278, 1282 (9th
Cir. 2005). The BIA’s interpretation thus “serves to deprive
aliens who are afforded voluntary departure of their statutory
right to a determination on the merits of motions to reopen [or
reconsider].”12 Id.11
8 C.F.R. § 1003.2(d) provides, in pertinent part,
Any departure from the United States, including the deportation
or removal of a person who is the subject of exclusion, deporta-
tion, or removal proceedings, occurring after the filing of a
motion to reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.
12
At the risk of stating the obvious, we note that Azarte’s reasoning
applies equally well to a motion to reconsider (the motion filed by Bar-
roso) as it does to a motion to reopen (the motion filed by the Azartes).
Just as IIRIRA created a statutory right to file one motion to reopen, so
too did it create a statutory right to file one motion to reconsider. Compare
8 U.S.C. § 1229a(c)(7)(A) (“An alien may file one motion to reopen pro-
ceedings under this section.”), with 8 U.S.C. § 1229a(c)(6)(A) (“The alien
may file one motion to reconsider a decision . . . .”). Moreover, the motion
to reconsider provision interacts with the voluntary departure provision in
precisely the same way as did the motion to reopen provision in Azarte.
See 8 C.F.R. § 1003.2(d) (if an alien departs within his voluntary departure
period, he forfeits any “motion to reopen or [ ] motion to reconsider”)
(emphasis added). Thus, there is no meaningful distinction between
IIRIRA’s motion to reconsider and motion to reopen provisions with
regard to the voluntary departure provision.
BARROSO v. GONZALES 15413
[2] This court recently addressed the “Catch 22” created by
the BIA’s interpretation of the voluntary departure and motion
to reopen/reconsider provisions. In Azarte, we observed that
it would be “absurd” to believe that Congress, in providing a
statutory right to file motions to reopen and reconsider, would
intend to preclude the adjudication of those motions by invo-
cation of the voluntary departure limitation. Id. at 1288-89. As
a result, we held that a timely filed motion for reopening, in
conjunction with a request for stay of removal or voluntary
departure, tolls the voluntary departure period for the time
during which the BIA considers the motion. Id. at 1289.13
The BIA’s order in Barroso’s case pre-dated our decision
in Azarte. Because the BIA’s ruling squarely presents the
same dilemma addressed in Azarte, we ordered the parties to
submit supplemental briefs on the impact of Azarte on Barro-
so’s case. In its supplemental brief, the government claims
that Azarte does not apply to this case for two reasons: one,
Barroso failed to file his motion to reconsider within the vol-
untary departure period as Azarte requires, and two, Barroso
failed to request a separate stay of his removal or his volun-
tary departure period when he filed his motion to reconsider.
We address each contention in turn.
1. Filing Within The Voluntary Departure Period
In Azarte, we stated that “[o]ur ability to toll the voluntary
departure period is predicated on the fact that the Azartes filed
their motion to reopen before their period for voluntary depar-
13
In so holding, we overruled our prior analysis in Shaar v. INS, 141
F.3d 953 (9th Cir. 1998). See Azarte, 394 F.3d at 1286 (holding that “be-
cause the rationales that underlay Shaar are no longer applicable after
IIRIRA, Shaar does not control our decision in this case.”). The Third and
Eighth Circuits have since followed Azarte and rejected the Shaar
approach. See Kanivets, 424 F.3d at 335 (holding that “tolling applies dur-
ing the period of time that the BIA deliberates on a timely motion to
reopen.”); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir. 2005)
(same).
15414 BARROSO v. GONZALES
ture elapsed.” 394 F.3d at 1288 n.20. Where an alien files his
motion after his voluntary departure period has expired, the
law in this circuit is clear that the BIA may properly deny the
motion on that basis. See De Martinez v. Ashcroft, 374 F.3d
759, 763 (9th Cir. 2004) (holding that BIA did not err in
denying relief where alien moved to reopen her proceedings
in the BIA thirty days after the expiration of her voluntary
departure period); see also Zazueta-Carrillo v. Ashcroft, 322
F.3d 1166, 1174 (9th Cir. 2003) (same, where alien moved to
reopen forty-four days after expiration of his voluntary depar-
ture period).
[3] A motion to reconsider must be filed within thirty days
of the date of entry of a final administrative order of removal.
8 U.S.C. § 1229a(c)(6)(B). In its February 20, 2003 decision,
the BIA granted Barroso a thirty-day voluntary departure
period. Therefore, the deadlines for filing Barroso’s motion to
reconsider and the expiration of Barroso’s voluntary departure
period fell on the same date: Saturday, March 22, 2003. When
the thirty-day deadline for filing a motion to reconsider
expires on a Saturday, the motion is due on the next business
day, which in this case was Monday, March 24, 2003. See In
re Lopez, 1998 BIA LEXIS 10, at *1 n.1 (1998); see also 8
C.F.R. § 1003.38(b) (“If the final date for filing [an appeal to
the BIA] falls on a Saturday, Sunday, or legal holiday, this
appeal time shall be extended to the next business day.”).
Therefore, under the BIA’s regulations, Barroso’s motion to
reconsider was timely if it was filed on Monday, March 24th.
The government stated in its opening brief that Barroso’s
motion was received on March 24th.14 The government also
14
In its brief, the government erroneously claimed that Barroso’s motion
to reconsider “arguably” should have been treated as a motion to reopen
because March 24th was “over thirty days” after the Board’s decision.
However, as we have explained, the motion to reconsider was not due
until March 24th and thus was timely filed. In addition, although Barro-
so’s motion claimed ineffective assistance of counsel, it does not fit within
BARROSO v. GONZALES 15415
conceded at oral argument that Barroso’s motion was filed
within the voluntary departure period. However, the govern-
ment alleges for the first time in its supplemental brief that the
motion was not filed within the voluntary departure period
because the BIA’s filing receipt for the motion was dated
April 2, 2003. As a general matter, an issue is “deemed
waived if it is raised for the first time in a supplemental
brief.” Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir.
2001) (citation and internal quotation marks omitted). Here,
the government, to the detriment of the petitioner, sought in
a supplemental brief to change the facts on the basis of which
an issue had been briefed and argued, without offering any
explanation for its earlier representation to the court. Whether
we treat its change in position as constituting a new claim or
simply an attempt to withdraw the factual basis for its argu-
ment and substitute a contrary set of facts, we conclude that
we will not consider it when raised for the first time in a sup-
plemental brief.
However, even if we were to consider the government’s
newly stated version of the facts, we would reject its argu-
ment. Our review of the record shows that the motion was in
fact filed on March 24th. The record demonstrates that it was
stamped by the BIA clerk’s office two times: one stamp dated
March 24, 2003, the other stamp dated April 2, 2003.15 The
this court’s holding in Iturribarria v. INS, because Barroso had already
claimed ineffective assistance of counsel in his appeal and his motion was
not supported by “new evidence that was purportedly not discoverable at
an earlier stage.” 321 F.3d 889, 897 (9th Cir. 2003); see also 8 U.S.C.
§ 1229a(c)(7)(B) (“The motion to reopen shall state the new facts that will
be proven at a hearing to be held if the motion is granted . . . .”). There-
fore, we conclude that the BIA properly treated the motion as a motion to
reconsider.
15
The BIA Practice Manual, the BIA’s official guidance on filing proce-
dures and requirements, states that the date stamp is controlling in the
computation of whether a filing is timely. BIA Prac. Man., Ch. 3.1(b)
(2004).
15416 BARROSO v. GONZALES
record reveals that the BIA first received the motion on March
24th, but sent a notice to Barroso’s counsel on March 25th
informing him that the motion listed the incorrect alien regis-
tration number. On March 28th, Barroso’s counsel sent a let-
ter correcting the registration number, and that letter was
stamped as received on April 2, 2003. Thus, our review of the
record shows that Barroso’s motion was first filed on March
24th.
[4] Moreover, if Barroso’s motion to reconsider had not
been filed within the thirty day deadline, the BIA would have
dismissed it as untimely. See BIA Prac. Man., Ch. 3.1(c)(iii)
(“If a motion is untimely, the motion is denied.”) (citing 8
C.F.R. § 1003.2(b)(2)). Here, the BIA did not do so. Accord-
ingly, we conclude that Barroso’s motion to reconsider was
timely filed within the 30-day period required by 8 U.S.C.
§ 1229a(c)(6)(B).
Not only was his motion timely filed on March 24th, but
we also conclude that by filing on March 24th, it was filed
within Barroso’s voluntary departure period. As we noted
above, the government conceded at oral argument that the
motion was filed within the voluntary departure period and
therefore waived any claim that it was not so filed.16 However,
in the interest of thoroughness, we briefly explain why March
24th is both the proper deadline date for filing Barroso’s
motion to reconsider and the expiration date of his voluntary
departure period.
While, as we have already noted, the BIA’s regulations
address how to calculate the due date for a motion to recon-
sider when the date falls on a weekend day, the only relevant
Departments of Justice and Homeland Security regulations
governing voluntary departure periods, 8 C.F.R. § 240.25 and
16
We note that the government contended in its initial brief that March
24th was “several days after the thirty-day period allotted for voluntary
departure.”
BARROSO v. GONZALES 15417
8 C.F.R. § 1240.26 respectively, do not offer any guidance as
to how to treat weekend days when they are the last calendar
day of the voluntary departure period. Nor does the relevant
statutory provision provide any guidance on the calculation of
the period: the time limit on periods of voluntary departure
contained in 8 U.S.C. § 1229c(b)(2) does not refer to a start
or end date, but merely prescribes that “permission” to depart
voluntarily “shall not be valid for a period exceeding 60
days.”
In Salvador-Calleros v. Ashcroft, this court was presented
with the same question of how to calculate the expiration of
the voluntary departure period when the last calendar day falls
on a weekend day. 389 F.3d 959 (9th Cir. 2004). The peti-
tioner in Salvador-Calleros filed both her petition for review
with this court and her motion for stay of voluntary departure
on Monday, June 17, 2002, and the thirty-day deadline for
both filings technically fell on Saturday, June 15, 2002. Id. at
964. While the government conceded that her petition for
review was timely filed, it argued that the motion to stay vol-
untary departure was untimely because it was filed on the
32nd day. This court held that because “Congress has [not]
specified a method of counting days in a statute governing
[this] particular procedure,” it should apply 26(a)(3) of the
Federal Rules of Appellate Procedure when computing the
expiration of voluntary departure periods such that the period
“actually expire[s] the following Monday.”17 Id. at 964-65. In
so holding, the court observed the need to avoid “unnecessary
confusion” where “there are two separate but related thirty-
day periods that relate back to the same order and start run-
ning on the same exact date.” Id. at 965.
[5] Here too, we are faced with “two separate but related
17
Federal Rule of Appellate Procedure 26(a)(3) provides that when
counting days in order to compute a period’s expiration date, the court
should “[i]nclude the last day of the period unless it is a Saturday, Sunday,
legal holiday . . . .”
15418 BARROSO v. GONZALES
thirty-day periods that . . . start running on the same exact
date”: the thirty-day period for filing a motion to reconsider
and Barroso’s thirty-day period for voluntary departure. The
BIA regulations directly speak to the computation of the for-
mer, but are silent as to the latter. We conclude that where the
deadline for filing a motion to reconsider falls on the same
day as the expiration of the voluntary departure period, the
proper solution is to apply the same rule to both thirty-day peri-
ods.18 Such an approach not only avoids “unnecessary confu-
sion” but also effectuates the purpose of both the voluntary
departure and motion to reconsider statutory provisions and
provides a “workable procedure for motions to [reconsider] in
cases in which aliens are granted voluntary departure.”
Azarte, 394 F.3d at 1289. Therefore, we conclude that by fil-
ing his motion to reconsider on March 24th, Barroso’s motion
was filed within the voluntary departure period.19
2. Requesting A Stay Of Voluntary Departure
[6] The government also argues that Azarte is inapplicable
here because Barroso failed to request a stay of his removal
or voluntary departure. In Azarte, we noted that we did not
need to “reach the question whether filing a motion to reopen
automatically tolls the voluntary departure period” because
the petitioners in that case had requested a stay of removal.
394 F.3d at 1288, n.20. However, the Azarte court observed
that automatically tolling the voluntary departure period upon
the filing of a motion to reopen “would be consistent with the
legislative scheme.” Id. For the reasons explained below, we
18
In so holding, we are not extending the voluntary departure time
period in contravention of INS regulations; “we are simply determining
which date should be counted as the thirtieth day.” Salvador-Calleros, 389
F.3d at 965.
19
We express no view as to the computation of the end-date of the vol-
untary departure period when there is no motion to reopen or reconsider
filed. We do observe, however, that it would be reasonable to apply a uni-
form rule in calculating the end-date of the voluntary departure period,
regardless of whether a motion to reopen or reconsider has been filed.
BARROSO v. GONZALES 15419
now take the next step which Azarte’s rationale demands and
hold that the timely filing of a motion to reopen or reconsider
automatically tolls the voluntary departure period. Such a
conclusion best effectuates Congress’ purpose in enacting the
voluntary departure and motion to reopen/reconsider provi-
sions, and follows “the longstanding principle of construing
any lingering ambiguities in deportation statutes in favor of
the alien.” INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271,
150 L.Ed.2d 347 (2001) (quoting INS v. Cardoza-Fonseca,
480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).
First and foremost, as Azarte explained, automatic tolling
is “consistent with the legislative scheme.” 394 F.3d at 1288
n.20. Indeed, in issuing the latest interim rule concerning “the
effect of a motion or appeal to the Immigration Court, BIA,
or a federal court on any period of voluntary departure already
granted,” the Department of Justice stated:
the Department considered several options, but has
not adopted any position or modified the interim
rule. The Department has identified three possible
options: no tolling of any period of voluntary depar-
ture; tolling the voluntary departure period for any
period that an appeal or motion is pending; or set-
ting a brief, fixed period of voluntary departure (for
example, 10 days) after any appeal or motion is
resolved.
Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10312, 10325-26 (March 6, 1997)
(interim rule) (emphasis added). As the interim rule makes
clear, the Justice Department considers automatic tolling to be
a logical resolution to the question of the interrelationship
between the statute’s motion to reopen/reconsider and volun-
tary departure provisions. In fact, two of the three approaches
being considered by the agency contemplate that the alien
always be allowed to remain in the country until after the
15420 BARROSO v. GONZALES
motion to reconsider/reopen is decided. As the interim rule
has never been replaced by a final one, it remains our best
guidance on this question.20
[7] In addition, we note that IIRIRA contains no require-
ment that an alien must file an affirmative request to stay vol-
untary departure. See 8 U.S.C. § 1229c, § 1229a; Desta v.
Ashcroft, 365 F.3d 741, 749 (9th Cir. 2004) (noting that
IIRIRA made no “provision for requiring an affirmative
request to stay voluntary departure.”).21 Nor do the Depart-
ment of Justice and Department of Homeland Security regula-
tions on voluntary departure contain any provisions regarding
staying the voluntary departure period. See 8 C.F.R.
§ 1240.26, § 240.25. Although the BIA’s regulations limit the
authority to “extend the time within which to depart voluntar-
ily specified initially by an immigration judge or the Board”,
§ 1240.26(f),22 automatic tolling does not extend the amount
20
See Azarte, 394 F.3d at 1289 n.21 (“When promulgating the interim
rule, the Justice Department explicitly stated that its rule did not resolve
how motions to reopen and voluntary departure periods should be con-
strued together . . . [and] avoided making a regulatory decision until the
adoption of a final rule.”).
21
We note that the statute does instruct that “service of a petition [for
review with the court of appeals] does not stay the removal of an alien
pending the court’s decision on the petition, unless the court orders other-
wise.” 8 U.S.C. § 1252(b)(3)(B). However, this provision is inapposite
here because it addresses petitions for review filed with the court of
appeals, not motions for reconsideration filed with the BIA. Moreover,
unlike 8 C.F.R. § 1003.2(d) which provides that an alien forfeits any pend-
ing motion to reconsider if he departs, a court of appeals “may entertain
a petition after the alien has departed.” Zazueta-Carrillo v. Ashcroft, 322
F.3d 1166, 1171 (citing 8 U.S.C. § 1252(b)(3)(B)) (emphasis added).
Accordingly, petitions for review to the court of appeals do not present the
same “conundrum” with which we are presented here. Moreover, this cir-
cuit has held that it has the equitable power to stay the voluntary departure
period while reviewing a removal order. See El Himri v. Ashcroft, 344
F.3d 1261, 1262 (9th Cir. 2003).
22
8 C.F.R. § 1240.26(f) provides, in part: “Authority to extend the time
within which to depart voluntarily specified initially by an immigration
BARROSO v. GONZALES 15421
of time granted for voluntary departure. See BLACK’S LAW
DICTIONARY (8th ed. 2004) (defining “toll” as “to stop the run-
ning of” a time period and an “extension” as “[a] period of
additional time to take an action”). “A suspension of a volun-
tary departure period merely tolls the running of that period;
it does not extend it.” Bocova v. Gonzales, 412 F.3d 257, 269
(1st Cir. 2005); see also Desta, 365 F.3d at 747 (“[W]hile we
are stopping the clock from running on the time petitioner has
to depart voluntarily, we are not adding more time to that
clock.”). Therefore, tolling the voluntary departure period
while the BIA considers the merits of a motion to reopen or
reconsider neither violates the statutory time limit in 8 U.S.C.
§ 1229c(b)(2), nor intrudes on the district director’s authority
to extend the time limit as specified in 8 C.F.R. § 1240.26(f).
Although the government failed to mention it either in its
briefs or at oral argument, and thus does not rely on it on this
appeal, we note that there is one Department of Justice regula-
tion which might be argued to preclude automatic tolling of
the time for voluntary departure and to require the filing of a
separate stay motion. 8 C.F.R. § 1003.2(f) (2005) provides
that “the filing of a motion to reopen or a motion to reconsider
shall not stay the execution of any decision made in the case.
. . . unless a stay of execution is specifically granted by the
Board, the Immigration Judge, or an authorized officer of the
Service.”23 We conclude that the regulation is not applicable
and that tolling the time for voluntary departure does not con-
stitute “stay[ing] the execution of a[ ] decision made in the
case” within the meaning of section 1003.2(f).
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.” See also
Desta, 365 F.3d at 747 (noting that extending the period for voluntary
departure would be “in contravention of INS regulations.”).
23
8 C.F.R. § 1003.2(f) contains an exception for motions filed pursuant
to the provisions of §§ 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A), neither
of which is applicable here.
15422 BARROSO v. GONZALES
The “execution of a decision” is best understood in terms
of a deportation order; in fact, 8 C.F.R. § 1003.2(f) is headed
“Stay of deportation.” When the government puts an alien on
a plane or a bus in order to send him back to his native coun-
try, it is “executing” the deportation decision. However, when
an alien who has been given permission by the BIA to depart
voluntarily does so, he is not “executing” the voluntary depar-
ture order. Indeed, it is only the government that “executes”
a decision in an immigration proceeding, not an individual
alien.24 Therefore, tolling the time in which an alien has been
granted permission to depart does not “stay the execution of
a[ ] decision made in [his] case.” 8 C.F.R. § 1003.2(f)
(emphasis added). As a result, we conclude that the regulation
does not apply to a grant of voluntary departure.
Moreover, were the BIA to construe 8 C.F.R. § 1003.2(f)
as applying to a grant of voluntary departure, such an inter-
pretation would not, in light of Azarte, be “based on a permis-
sible construction of the statute.” Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct.
2778, 81 L.Ed.2d 694 (1984). We reject agency interpreta-
tions of the INA that “would produce absurd results.” Ma v.
Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (citing United
States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117
L.Ed.2d 593 (1992)). More specifically, “when interpreting
IIRIRA, we avoid an interpretation that would lead to an
absurd result, such as the expenditure of unnecessary judicial
resources or overly severe consequences toward aliens.”
Desta, 365 F.3d at 746.
24
The only Ninth Circuit case of which we are aware to address this reg-
ulation (albeit in its earlier but identical incarnation as 8 C.F.R. 3.2(f))
held that it applies to the BIA’s decision to rescind an alien’s status as a
lawful permanent resident. See Baria v. Reno, 180 F.3d 1111, 1113 (9th
Cir. 1999). Like a deportation order, and unlike a grant of voluntary depar-
ture, a rescission order is a decision which must be executed by the gov-
ernment. Thus, the Baria court’s holding is entirely consistent with our
reasoning here.
BARROSO v. GONZALES 15423
Our decision in Azarte illustrates why applying § 1003.2(f)
so as to require the filing of a separate stay motion would
“create[ ] absurd results when viewed in light of the larger
statutory scheme.” Bona v. Gonzales, 425 F.3d 663, 670 (9th
Cir. 2005). Were we to require the filing of an additional
motion along with a motion to reopen or reconsider, then
under Azarte, the BIA would be obligated to grant every such
motion in order to afford aliens “their statutory right to a
determination on the merits of motions to reopen.” Azarte,
394 F.3d at 1282. Because Azarte requires that the BIA decide
a motion to reopen or reconsider on the merits when the
motion is filed within the voluntary departure period, the BIA
would not be permitted to deny the request for a stay in these
circumstances. See id. at 1289. As a result, requiring aliens to
file a separate stay motion along with their timely filed
motion to reopen or reconsider would amount to nothing more
than an empty procedural requirement that would simply
place an additional bureaucratic burden on aliens who in any
event often have difficulty following the complex procedural
requirements of our immigration laws. At the same time, it
would generate unnecessary paperwork for all parties
involved, including the overworked and undermanned bureau-
cracy that is currently struggling to keep up with the rapidly
increasing number of filings of motions, notices, stays, orders,
decisions, appeals and other types of papers.
[8] In sum, to deny those aliens who, for whatever reason,
fail to file a separate stay motion, the opportunity to receive
a ruling on the merits of their timely filed motion to reopen
or reconsider, while granting relief to those aliens whose
counsel are sufficiently sophisticated to enclose the additional
document, would be contrary to the statutory purpose and to
our reasoning in Azarte. Automatic tolling ensures “a work-
able procedure for motions to reopen [or reconsider] in cases
in which aliens are granted voluntary departure, and [ ] effec-
tuate[s] the purposes of the two statutory provisions.” Id. We
therefore conclude that the timely filing of Barroso’s motion
15424 BARROSO v. GONZALES
to reconsider automatically tolled his time in which to volun-
tarily depart.
We note finally that our decision is required by Azarte,
because in that case, while a request for a stay was filed, the
request had not been acted upon. If a voluntary departure date
could be tolled only by action of an immigration official, offi-
cer or entity, as a ruling that the regulation is applicable here
would require, the date would not have been tolled in Azarte;
as a result, we would have been compelled to deny rather than
grant the petition for review. Thus, in addition to being com-
pelled for the reasons set forth above, the result we reach here
is required in order to maintain consistency in our circuit law.
[9] Accordingly, we hold that the BIA abused its discretion
in denying Barroso’s motion to reconsider on the ground that
he failed to depart the United States within his thirty-day vol-
untary departure period.25
B. Denial of the Right to Counsel
In his motion to reconsider, Barroso asserted two claims:
that he was inadequately represented and that he was denied
his right to counsel of his choice when the IJ forced him to
proceed at the hearing without his attorney present.26 As to the
second claim, the BIA inexplicably failed to address it. At
25
Because we find that Azarte controls this portion of the BIA’s ruling,
we need not reach Barroso’s equal protection claim on this issue.
26
In its brief, the government stated that Barroso’s motion asserted inef-
fective assistance of counsel “as the sole basis for relief.” However, this
claim is directly refuted by the record which clearly shows that Barroso’s
motion to reconsider stated two arguments: (1) “respondent was inade-
quately represented,” and (2) “the respondent was denied his right to coun-
sel of his own choice when the immigration judge insisted on conducting
an immigration hearing over the repeated objection of the respondent.”
Moreover, we take note that the government addressed the statutory right
to counsel claim in its brief and at no point did the government assert that
Barroso had not exhausted it.
BARROSO v. GONZALES 15425
oral argument, the government attempted to explain the BIA’s
silence on this claim by arguing that the Board “interpreted”
Barroso’s denial of counsel claim as an ineffective assistance
of counsel claim and “ruled on it in that way.” Hard as we
may look, we cannot find where in its decision the Board
ruled on the denial of counsel claim.
[10] “[T]he BIA [is] not free to ignore arguments raised by
a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th
Cir. 2005). In failing to address this separate ground for relief,
the BIA abused its discretion.27 Mendez-Gutierrez v. Ashcroft,
340 F.3d 865, 870 (9th Cir. 2003); see also Mejia v. Ashcroft,
298 F.3d 873, 878-80 (9th Cir. 2002) (holding that the BIA
abused its discretion by neglecting to address all of petition-
er’s claimed bases for asylum). The BIA’s failure to address
the denial of counsel claim is particularly puzzling in light of
the fact that Barroso’s claim is undeniably strong. The record
clearly shows that Barroso did not knowingly and voluntarily
waive his statutory right to counsel. See Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004) (failure to obtain a know-
ing and voluntary waiver is “an effective denial of the right
to counsel, which, in the light of the entire administrative
record, may be an abuse of discretion.”) (internal quotation
marks omitted). Nor was Barroso’s need for a continuance
“due to unreasonable conduct on the part of alien.” Baires v.
INS, 856 F.2d 89, 93 (9th Cir. 1988). Although the IJ’s frus-
tration with delay in this case is understandable, the law of
27
While the right to counsel in immigration proceedings does have a
constitutional dimension which this court may review in the first instance,
we decline to do so here. Barroso’s claim was fairly presented as a statu-
tory violation: his claim referred to his “right to counsel of his choice”,
thereby mirroring the statute’s language. See 8 U.S.C. § 1362 (an alien has
the right to be represented by “such counsel . . . as he shall choose.”).
Because Barroso presented a statutory claim and the Board was obligated
to rule on it, we should not reach the constitutional question at this time.
Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)
(noting that courts should “avoid reaching constitutional questions in
advance of the necessity of deciding them.”).
15426 BARROSO v. GONZALES
this circuit is clear that concerns about delay “cannot over-
shadow [the petitioner’s] statutory right to counsel of choice.”
Baltazar-Alcazar v. INS, 386 F.3d 940, 946 (9th Cir. 2004).
[11] Although it appears that Barroso may well have been
denied his statutory right to counsel, it is not for us to deter-
mine this question in the first instance. See INS v. Ventura,
537 U.S. 12, 16 (2002) (per curiam). Accordingly, we grant
the petition and remand to the BIA to reconsider whether Bar-
roso was denied that statutory right.
PETITION GRANTED; REMANDED FOR FUR-
THER PROCEEDINGS.