Alvarado v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 09-11376 ELEVENTH CIRCUIT

JULY 8, 2010

_________________________

JOHN LEY

CLERK

Agency Nos. A079-494-222,

A079-494-223

MARTHA LUCIA ALVARADO,

ANDRES FELIPE LAVERDE,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_____________________________

(July 8, 2010)

Before DUBINA, Chief Judge, FAY, Circuit Judge, and ALBRITTON,* District

Judge.

ALBRITTON, District Judge:

*

Honorable W. Harold Albritton, III, United States District Judge for the Middle District

of Alabama, sitting by designation.

Martha Lucia Alvarado and Andres Felipe Laverde seek review of the

Board of Immigration Appeals’s (“BIA”) final order of removal affirming the

Immigration Judge’s (“IJ”) decision to deny them the opportunity to apply for

voluntary departure pursuant to Immigration and Nationality Act (“INA”) §

240B(b)(1), 8 U.S.C. § 1229c(b)(1). The IJ denied Alvarado and Laverde the

opportunity to apply for voluntary departure because they waited to request this

relief until after the IJ denied their request for asylum and witholding of removal

and issued an oral decision ordering their removal from the United States.

On appeal, Alvarado and Laverde argue that the IJ violated their due

process rights under the Fifth Amendment and the INA statutes governing

voluntary departure by refusing to permit them to apply for voluntary departure at

the conclusion of their removal proceedings.1 In response, the Government argues

that Alvarado and Laverde did not timely request voluntary departure, and thus the

IJ correctly denied them the opportunity to make the request after the IJ rendered

his oral decision on removability.

The INA provides that an IJ may grant voluntary departure “at the

conclusion of a proceeding,” but otherwise does not specify when the alien must

1

Because we ultimately conclude that the IJ’s interpretation of the statutes governing

voluntary departure was unreasonable and requires a remand to determine Alvarado and

Laverde’s eligibility for voluntary departure, we do not address whether the denial of voluntary

departure violated the Fifth Amendment.

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request voluntary departure pursuant to INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1).

Because the IJ and the BIA misinterpreted the phrase “at the conclusion of a

proceeding” in a way that improperly denied Alvarado and Laverde the

opportunity the statute provides them to request voluntary departure, we vacate

and remand the BIA’s order.

I. BACKGROUND

Alvarado and Laverde, natives and citizens of Colombia, were admitted to

the United States at Miami, Florida, on or about May 22, 2001, as visitors for

pleasure. The Department of Homeland Security served them with notices to

appear on September 13, 2007, charging them with removability under INA §

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained in the United

States for a time longer than permitted. Alvarado and Laverde filed applications

for asylum and withholding of removal pursuant to INA § 241(b)(3), 8 U.S.C. §

1231(b)(3). In March 2008, Alvarado and Laverde appeared before an IJ at a

master calendar hearing, and neither the IJ nor Alvarado or Laverde mentioned

voluntary departure. In May 2008, Alvarado and Laverde appeared before the IJ

at a merits hearing and did not provide testimony regarding their qualifications for

voluntary departure or mention voluntary departure in their closing statement. The

IJ rendered an oral decision, in which he denied Alvarado and Laverde’s requests

for asylum and witholding of removal, thus ordering their removal from the United

3

States. Immediately after the IJ rendered his decision, Alvarado and Laverde

requested that the IJ grant them voluntary departure as an alternative to removal.

The IJ refused to consider their request because they did not mention voluntary

departure at the master calendar hearing or at any point during the merits hearing

before the IJ rendered his oral decision.2

Alvarado and Laverde filed a notice of appeal to the BIA, appealing the IJ’s

denial of asylum and withholding of removal, as well as his refusal to permit them

to apply for voluntary departure at the conclusion of the removal proceedings.

The BIA affirmed the denial of asylum and withholding of removal.3 The BIA

also affirmed the IJ’s refusal to allow Alvarado and Laverde to apply for voluntary

departure, finding that Alvarado and Laverde had several opportunities during the

proceedings to request voluntary departure and present evidence regarding their

2

“Judge to Counsel

Q. Is there anything else from either side?

Mr. Jaramillo to Judge

Q. Your Honor, the remaining issue of voluntary departure that they would be

seeking in the alternative.

A. Well, counsel, this was never brought up before.

Q. Well, we were seeking as an alternative form of relief.

A. This was never brought up at master calendar. This was never brought up at

any time and it was not brought up until the Court had already basically gone through everything.

You had an opportunity to, you had your client on the stand. You could have qualified your

client. You did nothing. So the Court is going to preclude you from going forward with that.

Okay.”

See Admin. R. 96-97, In Re Martha Lucia Alvarado, A079 494 222, Miami, FL (B.I.A. Feb. 26,

2009).

3

Alvarado and Laverde do not appeal the decision of the BIA denying asylum and

withholding of removal.

4

qualifications for voluntary departure, but failed to do so.

II. JURISDICTION

We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.

U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam) (citing Brooks

v. U.S. Att’y Gen., 283 F.3d 1268, 1272 (11th Cir. 2002)). Section 1252 of Title 8

limits our jurisdiction over denials of discretionary relief in immigration

proceedings, including the denial of voluntary departure. See INA §

242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). This statute, however, does not strip us of

jurisdiction over the issue in this case. Although we lack jurisdiction to review a

discretionary decision denying voluntary departure, we retain jurisdiction to

review non-discretionary legal determinations as to statutory eligibility for

discretionary relief. Gonzalez-Oropeza, 321 F.3d at 1332 (citing Al Najjar v. U.S.

Att’y Gen., 257 F.3d 1262, 1297-98 (11th Cir. 2001)). In this case, the IJ

concluded that Alvarado and Laverde failed to timely request voluntary departure,

and thus refused to permit them to apply for such discretionary relief and prove

their eligibility. This conclusion was a non-discretionary judgment regarding

Alvarado and Laverde’s statutory eligibility to request discretionary relief, and

therefore, we have jurisdiction.4

4

Because we have jurisdiction on this basis, we need not consider whether jurisdiction is

proper on the ground that Alvarado and Laverde have a substantial constitutional claim pursuant

to INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

5

III. STANDARD OF REVIEW

Where the BIA issues its own decision, we review only that decision,

“except to the extent that it expressly adopts the IJ’s opinion.” Reyes-Sanchez v.

U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting Al Najjar, 257

F.3d at 1284).

We review issues of statutory interpretation de novo, but we defer to a

reasonable interpretation of the statute by the agency that administers it.

Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005) (citing

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44,

104 S. Ct. 2778, 2781–83 (1984)).

IV. DISCUSSION

Voluntary departure is a discretionary form of relief that permits certain

aliens to depart the United States at their own expense. INA § 240B, 8 U.S.C. §

1229c; see also Dada v. Mukasey, __ U.S. __ , 128 S. Ct. 2307, 2312 (2008). The

immigration laws distinguish between a grant of voluntary departure at two

different stages of removal proceedings. See INA § 240B(a)(1)–(b)(1), 8 U.S.C. §

1229c(a)(1)–(b)(1); Narine v. U.S. Att’y Gen., 559 F.3d 246, 248 n.1 (4th Cir.

2009); Hashish v. U.S. Att’y Gen., 442 F.3d 572, 577-78 (7th Cir. 2006).

“Pre-conclusion voluntary departure” allows an alien charged with

removability to depart the country voluntarily, at his own expense, instead of

6

going through removability proceedings, or prior to the completion of

removability proceedings, pursuant to INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1).5

In order to be granted voluntary departure at this stage, an alien must make his or

her request prior to or at the master calendar hearing at which the case is

scheduled for a hearing on the merits. 8 C.F.R. § 1240.26(b)(1)(i)(A).6

“Post-conclusion voluntary departure” is separately provided for in INA §

240B(b)(1), 8 U.S.C. § 1229c(b)(1), which allows an IJ to enter an order granting

voluntary departure at the conclusion of a removal proceeding.7 The statute and

5

8 U.S.C. § 1229c(a)(1) states:

The Attorney General may permit an alien voluntarily to depart the United States at

the alien’s own expense under this subsection, in lieu of being subject to proceedings

under section 1229a of this title or prior to the completion of such proceedings, if the

alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of

this title.

6

In addition to the explicit timeliness requirement regarding the request for voluntary

removal prior to the completion of removal proceedings, regulations require the alien to make no

additional requests for relief, or to withdraw any such requests before voluntary departure may be

granted; concede removability; waive appeal of all issues; and not be deportable as an aggravated

felon or on security grounds. See 8 C.F.R. § 1240.26(b)(1)(i)(B)-(E).

7

8 U.S.C. § 1229c(b)(1) states:

The Attorney General may permit an alien voluntarily to depart the United States at

the alien’s own expense if, at the conclusion of a proceeding under section 1229a of

this title, the immigration judge enters an order granting voluntary departure in lieu

of removal and finds that –

(A) the alien has been physically present in the United States for a period of

at least one year immediately preceding the date the notice to appear was served

under section 1229(a) of this title;

(B) the alien is, and has been, a person of good moral character for at least 5

years immediately preceding the alien’s application for voluntary departure;

(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section

1227(a)(4) of this title; and

(D) the alien has established by clear and convincing evidence that the alien

7

corresponding regulation do not specify when an alien must make a request for

this type of voluntary departure. Indeed, the question in this case is whether an

alien who has not sought pre-conclusion voluntary departure may, for the first

time, request post-conclusion voluntary departure at the end of a removal

proceeding, after the IJ issues an oral decision ordering the alien’s removal from

the United States.

Post-conclusion voluntary departure permits an immigration judge to enter

an order granting voluntary departure in lieu of removal “at the conclusion of a

proceeding.” INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1). The Government

argues that Alvarado and Laverde’s request for voluntary departure was untimely

under the statute because the request came after the IJ issued an oral decision

denying their asylum application and ordering them removed from the United

States. According to the Government’s interpretation of the statute, the

proceeding concluded the moment the IJ rendered his oral decision and ordered

Alvarado and Laverde removed from the United States; therefore, after this

moment, Petitioners could not request voluntary departure.

Under the rules of statutory construction, the plain meaning is conclusive,

except when the literal interpretation will produce a result at odds with the intent

has the means to depart the United States and intends to do so.

8

of the statute. In re Hoggle, 12 F.3d 1008, 1010 (11th Cir. 1994) (citing United

States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 1031 (1989)).

When interpreting a statute, we do not analyze a particular clause in isolation, but

we must consider it in light of the entire statute. Dada, 128 S. Ct. at 2317 (citing

Kokoszka v. Belford, 417 U.S. 642, 650, 94 S. Ct. 2431, 2436 (1974)).

Additionally, we look not only to plain meaning of the statute, but also its design,

object, and policy. Crandon v. United States, 494 U.S. 152, 158, 110 S. Ct. 997,

1001 (1990).

Considering the statutory scheme governing voluntary departure as a whole,

the Government’s argument that an alien cannot request post-conclusion voluntary

departure immediately after the IJ issues an oral decision on removal is

unreasonable. First, the statutes and regulations governing voluntary departure

never state that an alien must request post-conclusion voluntary departure before

an IJ issues an oral decision on removal. Rather, the statute speaks to when an IJ

may enter an order regarding post-conclusion voluntary departure, and specifies

that the IJ may enter the order “at the conclusion of a proceeding.” See INA §

240B(b)(1), 8 U.S.C. § 1229c(b)(1). A corresponding regulation further provides

that an application for voluntary departure “shall be made only during the

hearing.” See 8 C.F.R. § 1240.11(b) and (e). Together these provisions permit an

alien to request post-conclusion voluntary departure at any time during the

9

hearing. Here, Alvarado and Laverde requested voluntary departure during the

hearing, as their request is reflected on the hearing transcript. See Admin. R. at

96-97. Unless there is a statute or regulation that requires an alien to request post-

conclusion voluntary departure as soon as the opportunity presents itself, the

failure to do so does not forfeit an alien’s ability to apply for such relief.

Under the current statutory scheme for voluntary departure, the two

categories differ in the availability of appeals, the requirements that must be

satisfied, and the number of days available for voluntary departure. See INA

§240B(a)-(b), 8 U.S.C. § 1229(a)-(b). Additionally, the statute does not give a

preference as to which form of voluntary departure an alien should request. The

alien has complete discretion to strategically choose when to request voluntary

departure, if at all, because each form carries different consequences.

Moreover, allowing an alien to apply for voluntary departure immediately

after the IJ issues an oral decision on removability is consistent with the design,

object, and policy of the statutes and regulations governing such relief.

“Voluntary departure, under the current structure, allows the Government and the

alien to agree upon a quid pro quo.” Dada, 128 S. Ct. at 2314. From the

Government’s perspective, voluntary departure expedites the deportation process

and avoids the expense of deportation. Id. From the alien’s perspective, voluntary

departure allows him or her to avoid extended detention prior to departure, choose

10

when to depart (subject to certain constraints), select the country of destination,

and facilitate readmission at a later date by avoiding some of the penalties

attendant to deportation. Id. Allowing an alien to request voluntary departure

immediately after an IJ denies him or her asylum is consistent with this quid pro

quo arrangement. It allows the alien to vigorously urge the granting of asylum and

withholding of removal, and then, only after having been denied that relief, to seek

leave to voluntarily depart, in lieu of the ordered removal. And, it does not

compromise the Government’s interest in a “prompt and costless departure.”

Dada, 128 S. Ct. at 2319.8

The Government argues that 8 U.S.C. § 1229a(c)(4) supports requiring an

alien to request post-conclusion voluntary departure before the IJ issues an oral

decision ordering the alien removed. It does not. That code section provides,

among other things, that the alien has the burden of proof to establish that he or

she is eligible for discretionary relief, but that section says nothing of when the

alien must request voluntary departure pursuant to INA § 240B(b)(1), 8 U.S.C. §

1229c(b)(1).

8

We stress that Petitioners in this case requested post-conclusion voluntary departure

immediately after the IJ issued his oral decision on removal, and prior to the conclusion of the

hearing. We express no opinion on the validity of a later request, which may compromise the

government’s interest in a prompt and costless departure. See, e.g., 8 C.F.R. § 1240.26(e) (“If

voluntary departure is granted at the conclusion of proceedings, the immigration judge may grant

a period not to exceed 60 days.”).

11

The Government also argues that, because the statute requires certain

criteria to be met before voluntary departure may be granted, the request for

voluntary departure must necessarily be made prior to the IJ’s oral decision. This

argument also fails. The Government is correct that the statute clearly requires an

alien to prove that he or she is qualified for voluntary departure. See 8 U.S.C. §

1229c(b)(1)(A)-(D). But, requiring an alien to prove that he or she is qualified for

voluntary departure speaks to what an alien must prove to be eligible, not when it

must be proved.

The Government next argues that, because an IJ may grant an order of

voluntary departure “in lieu of removal” at the conclusion of a proceeding under

INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1), the request for voluntary departure

must be made before the IJ’s order on removal. The phrase “in lieu of removal”

sheds no light on the issue of when an alien must request voluntary departure. The

phrase simply means that voluntary departure is an alternative form of relief that

may take the place of a removal order. The phrase has no bearing on the timing of

a request for voluntary departure.

Lastly, the Government argues that allowing an alien to request voluntary

departure immediately after an IJ’s oral decision ordering removal would “mandate

reopening” of the removal proceedings, forcing the IJ to permit an alien to testify

about his or her statutory eligibility for voluntary departure after the proceedings

12

concluded. This “mandatory reopening,” according to the Government, would

upset the statutory scheme that Congress has established to address removability

and the granting of relief from removal. This argument is unpersuasive. The

statute permits an IJ to grant an order of voluntary departure “at the conclusion of a

proceeding,” and the proceeding does not necessarily conclude, for purposes of

requesting voluntary departure, the moment an IJ issues an oral decision on

removal. Thus, allowing an alien to request voluntary departure immediately after

the IJ’s oral decision does not mandate reopening of the proceeding, because the

proceeding has not yet concluded.

In sum, interpreting the phrase “at the conclusion of a proceeding” to allow

an alien to request voluntary departure after an IJ denies an asylum application

recognizes the incentives both of the Government and the alien, and it ensures the

smoothest working of the statute as a whole.

V. CONCLUSION

Alvarado and Laverde requested asylum and withholding of removal. They

lost. They then requested voluntary departure, immediately after the IJ rendered

his oral decision on removal, and prior to the conclusion of the hearing. Allowing

them to make their request at that time is consistent with the statutory requirement

that an IJ may grant voluntary departure “at the conclusion of a proceeding”

pursuant to INA § 240(b)(1), 8 U.S.C. § 1229c(b)(1). We conclude that the BIA’s

13

interpretation of “at the conclusion of a proceeding” was unreasonable because it

denied Alvarado and Laverde the opportunity to request voluntary departure

immediately after the IJ’s oral decision and prior to the conclusion of the hearing.

The request was timely made. We vacate the BIA’s order and remand for a

determination on Alvarado’s and Laverde’s application for voluntary departure.

VACATED AND REMANDED

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