Patel v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-1572

SEEMABAHEN G. PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A073-172-524)

Immigration Judge: Honorable Eugene Pugliese

Argued July 12, 2010

Before: RENDELL, JORDAN and GREENAWAY, JR.,

Circuit Judges

(Filed: August 24, 2010)

Robert Frank, Esq. [ARGUED]

Frank & York

60 Park Place

Suite 1010

Newark, NJ 07102

Counsel for Petitioner

Seemabahen G. Patel

Kate Deboer Balaban, Esq.

Eric H. Holder, Jr. Esq.

Susan K. Houser, Esq.

Thomas W. Hussey, Esq.

John J. W. Inkeles, Esq. [ARGUED]

U.S. Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Attorney General of the United States

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OPINION OF THE COURT

RENDELL, Circuit Judge.

Seemabahen Patel has filed a petition for review of the

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

the denial of her application for cancellation of removal. She

has also requested a stay of the voluntary departure ordered by

the Immigration Judge (“IJ”). At issue is whether we have

jurisdiction over her petition for review, which challenges an

adverse “hardship” determination, and whether, pursuant to

8 C.F.R. § 1240.26(i), we have the ability to stay her voluntary

departure once she has filed a petition for review. We conclude

that we lack the ability to stay her voluntary departure because,

pursuant to that regulation, her voluntary departure terminated

upon her filing of a petition for review. We also conclude that

we lack jurisdiction to consider her challenge to the agency’s

discretionary determination as to her claim of hardship.

Background

Patel, a citizen of India, entered the United States

illegally in 1992. On April 29, 2006, Patel was issued a Notice

to Appear and was charged with being subject to removal. Patel

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conceded removability, but applied for cancellation of removal

pursuant to 8 U.S.C. § 1229b(b), claiming that her removal

would cause her husband and her son, both United States

citizens, “exceptional and extremely unusual hardship.” During

her hearing before the IJ, Patel presented evidence that her

11-year old son was a strong student and was engaged in local

community activities. She urged that moving her family to India

would deprive her son of educational opportunities that he could

only have in the United States. Additionally, Patel contended

that living in India would be a hardship to her husband, who

suffers from a thyroid condition, which is managed with daily

medication. After reviewing the evidence, the IJ concluded that

any hardship created by the prospect of Patel’s removal was not

“exceptional or extremely unusual.” App. 57, 62. In doing so,

the IJ noted that Patel’s son was a “good student” and a “bright

boy,” but that he was not a “budding genius” or “a prodigy of

any sort who is now going to be deprived of an opportunity to

develop [his] abilities” if required to live with his mother in

India. App. 9-10. Consequently, the IJ denied Patel’s

application for cancellation of removal and granted her

voluntary departure. The IJ’s decision was affirmed by the BIA

without opinion. The BIA’s final order included a warning, as

required by 8 C.F.R. § 1240.26(i), that:

if, prior to departing the United States, the

respondent filed any judicial challenge to this

administratively final order, such as a petition for

review pursuant to section 242 of the Act,

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8 U.S.C. § 1252, the grant of voluntary departure

is automatically terminated, and the alternate

order of removal shall immediately take effect.

App. 3.

On appeal, Patel challenges the IJ’s hardship

determination, contends that the IJ was unfairly predisposed to

find against her, 1 and seeks a stay of her voluntary departure

period.

Discussion

I. Exceptional and Extremely Unusual Hardship

An alien who is removable from the United States is

1

Patel did not raise her claim that the IJ was predisposed

against her on appeal to the BIA. She has thus failed to exhaust

her remedies as to this claim and we lack jurisdiction to review

it. See 8 U.S.C. § 1252(d)(1) (requiring the exhaustion of all

administrative remedies available to an alien before a court may

review a final order of removal); Bonhometre v. Gonzales, 414

F.3d 442, 448 (3d Cir. 2005) (holding that we lack jurisdiction

over a petition for review based on a claim that could have been,

but was not, brought before the BIA). Additionally, even if we

were to consider this claim on the merits we would not grant

relief because the IJ’s comments during the hearing do not

demonstrate a predisposition against Patel.

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eligible for cancellation of removal if she:

(A) has been physically present in the United

States for a continuous period of not less than

10 years immediately preceding the date of such

application;

(B) has been a person of good moral character

during such period;

(C) has not been convicted of an offense under

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of

this title, subject to paragraph (5); and

(D) establishes that removal would result in

exceptional and extremely unusual hardship to

the alien’s spouse, parent, or child, who is a

citizen of the United States or an alien lawfully

admitted for permanent residence.2

8 U.S.C. § 1229b(b)(1) (emphasis added).

We lack jurisdiction to review discretionary decisions

made pursuant to 8 U.S.C. § 1229b, including “exceptional and

extremely unusual” hardship determinations. 8 U.S.C.

2

The IJ found that Patel satisfied 8 U.S.C. §§ 1229b(b)(1)(A)

through (C), yet failed to establish “exceptional and extremely

unusual hardship” under § (D).

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§ 1252(a)(2)(B)(i); Mendez-Moranchel v. Ashcroft, 338 F.3d

176, 179 (3d Cir. 2003). Our review is limited to “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Francois

v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006).

Patel concedes that we cannot review the IJ’s

discretionary determinations, yet urges that the IJ’s

misapplication of the hardship standard presents a question of

law. Patel contends that the IJ failed to consider all of the

consequences of moving her family to India and that the IJ

“undervalued the severity of hardship when considering the

extraordinary academic achievement of [Patel’s] son and the

emotional and financial impact on him and [Patel’s] husband”

of moving to India. Pet’r Br. 5-6.

Challenges to “exceptional and extremely unusual”

hardship determinations constitute “quarrels over the exercise of

discretion and the correctness of factual findings” and do not

raise constitutional claims or questions of law. Cospito v. Att’y

Gen., 539 F.3d 166, 170 (3d Cir. 2008), quoting Camara v.

Dep’t of Homeland Sec., 497 F.3d 121, 124 (2d Cir. 2007). We

do not have jurisdiction to review the IJ’s discretionary

determination that the hardship to Patel’s son and husband did

not satisfy the “exceptional and extremely unusual”

requirements of 8 U.S.C. § 1229b(b)(1)(D). Id. at 179. We

recently clarified that, while we do not have jurisdiction to

“rehash” the IJ’s determination of whether an alien meets this

hardship requirement, we do have jurisdiction to review whether

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the IJ used the correct legal standard to reach this determination.

Pareja v. Att’y Gen., _ F.3d _ , No. 08-4598, 2010 WL 2947239

at *4 (3d Cir. July 29, 2010). Although Patel claims to be

challenging the IJ’s misapplication of a legal standard, she is

actually asserting that she met her burden of showing an

exceptional hardship. We do not have jurisdiction to review this

claim because it challenges a discretionary determination and

does not present a constitutional question or a question of law.

Id.; see also Mendez-Moranchel, 338 F.3d at 179; Sukwanputra

v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).

II. Stay of Voluntary Departure

Our ability to grant a stay of voluntary departure is

limited by a recent regulation, 8 C.F.R. § 1240.26(i), that took

effect on January 20, 2009 and states, in relevant part:

(i) Effect of filing a petition for review. If, prior

to departing the United States, the alien files a

petition for review pursuant to section 242 of the

Act (8 U.S.C. 1252) or any other judicial

challenge to the administratively final order, any

grant of voluntary departure shall terminate

automatically upon the filing of the petition or

other judicial challenge and the alternate order of

removal entered pursuant to paragraph (d) of this

section shall immediately take effect, except that

an alien granted the privilege of voluntary

departure under 8 C.F.R. 1240.26(c) will not be

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deemed to have departed under an order of

removal if the alien departs the United States no

later than 30 days following the filing of a petition

for review, provides to DHS such evidence of his

or her departure as the ICE Field Office Director

may require, and provides evidence DHS deems

sufficient that he or she remains outside of the

United States. The Board shall advise the alien of

the condition provided in this paragraph in writing

if it reinstates the immigration judge’s grant of

voluntary departure. . . . Since the grant of

voluntary departure is terminated by the filing of

the petition for review, the alien will be subject to

the alternate order of removal, but the penalties

for failure to depart voluntarily under section

240B(d) of the Act shall not apply to an alien who

files a petition for review, and who remains in the

United States while the petition for review is

pending. 3

(Emphasis added). The Attorney General has the authority to

promulgate regulations that limit eligibility for voluntary

departure. 8 U.S.C. § 1229c(e). Our review of such regulations

3

Also, subsection (f) of 8 C.F.R. § 1240.26 deals with

extending the time to depart and states that “the filing of a

petition for review has the effect of automatically terminating

the grant of voluntary departure, and accordingly also does not

toll, stay, or extend the period allowed for voluntary departure.”

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is, again, limited to constitutional claims or questions of law.

Id.; 8 U.S.C. § 1252(a)(2)(D). Under the plain language of

8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary

departure after a petitioner seeks judicial review because the

grant has already terminated.

Patel concedes that this regulation is unambiguous, yet

cites Obale v. Attorney General, in which we held that we had

jurisdiction to grant a stay of voluntary departure. 453 F.3d 151

(3d Cir. 2006). However, Obale predated the effective date of

8 C.F.R. § 1240.26 and our holding was based on the fact that

there was “no indication that Congress intended to eliminate this

court’s equitable jurisdiction to grant a stay of the voluntary

departure period.” Id. at 157. The regulation now controls, and

requires a contrary finding.

Patel next challenges the propriety of the regulation,

explaining that an alien’s statutory right to seek judicial review

“should not prevent [her] from availing [herself] of forms of

relief to which [she] would otherwise be entitled.” Pet’r Mem.

in Support of Jurisdiction to Stay, 4. As the Supreme Court has

explained, however, a voluntary departure arrangement between

an alien and the government is a quid pro quo. See Dada v.

Mukasey, 128 S.Ct. 2307, 2319 (2008) (“Voluntary departure is

an agreed-upon exchange of benefits, much like a settlement

agreement. In return for anticipated benefits, including the

possibility of readmission, an alien who requests voluntary

departure represents that he or she has the means to depart the

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United States and intends to do so promptly.”) (internal

quotation marks omitted); see also Reynoso-Lopez v. Ashcroft,

369 F.3d 275, 283 (3d Cir. 2004) (explaining that the “purpose

of authorizing voluntary departure in lieu of deportation is to

effect the alien’s prompt departure without further trouble to the

[government]. Both the aliens and the [government] benefit

thereby.”) (quoting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166,

1173 (9th Cir. 2003)).

We conclude that, given the mutual benefit envisioned in

the grant of voluntary departure, there is nothing wrong with

conditioning the right to voluntarily depart on the alien’s

relinquishing the right to engage in appeal proceedings. In

Dada, the Court noted the choices available to the alien, stating

that an alien “has the option either to abide by the terms, and

receive the agreed-upon benefits, of voluntary departure; or,

alternatively, to forgo those benefits and remain in the United

States to pursue an administrative motion.” 128 S.Ct. at 2319-

20.4 Dada anticipated the enactment of 8 C.F.R. § 1240.26 5 ,

4

At the time of the Dada decision, voluntary departure

automatically withdrew an alien’s motion to reopen, but if an

alien overstayed her departure date, she would be subject to

penalties. Therefore, an alien was forced to choose between

departing and foregoing her motion to reopen, or staying in the

United States and incurring penalties for failing to timely depart.

The Supreme Court found this conflict “untenable” and resolved

(continued...)

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recognizing that the automatic termination of an alien’s grant of

voluntary departure upon the filing of a motion to reopen was

permissible. Therefore, it follows that the automatic termination

of an alien’s grant of voluntary departure upon the filing of a

petition for review, and conditioning the grant of voluntary

departure upon the alien’s foregoing that right, is similarly

unobjectionable.6

4

(...continued)

it by allowing an alien an opportunity to withdraw her motion

for voluntary departure before the time for her to depart had

expired. Dada, 128 S. Ct. at 2311.

5

“[T]he DOJ has proposed an amendment to 8 C.F.R.

§ 1240.26 that, prospectively, would ‘provide for the automatic

termination of a grant of voluntary departure upon the timely

filing of a motion to reopen or reconsider, as long as the motion

is filed prior to the expiration of the voluntary departure

period.’” Dada, 128 S.Ct. at 2318. Section 1240.26 thus

eliminates one of the Dada Court’s primary concerns, i.e. that an

alien who fails to timely depart in order to pursue a motion to

reopen would be subject to penalties. By automatically

terminating a grant of voluntary departure upon the filing of a

motion to reopen or a petition for review, the regulation at issue

protects an alien from penalties for failure to depart within the

allotted time period.

6

The right to file a petition for review and the right to file a

motion to reopen are both provided by statute. 8 U.S.C. § 1252;

(continued...)

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Furthermore, under 8 C.F.R. § 1240.26(i), an alien does

not necessarily lose her right to file a petition for review. If she

voluntarily departs within 30 days of filing a petition for review

and provides evidence that she remains outside of the United

States, she will not be deemed to have departed under an order

of removal,7 and can thus pursue her petition for review.

6

(...continued)

8 U.S.C. § 1229a(c)(7).

We previously noted, in dicta, that 8 C.F.R. § 1240.26(i)

clarifies:

that the filing of a petition for review

automatically terminates the grant of voluntary

departure. The new regulation thus reinforces the

nature of voluntary departure as an ‘agreed-upon

exchange of benefits,’ and stresses the choice an

alien must make between the benefits of voluntary

departure, with its concomitant obligation to

depart promptly, on one hand, or pursuing

litigation without agreeing to depart promptly, on

the other.

Sandie v. Att’y Gen., 562 F.3d 246, 252 n. 5 (3d Cir. 2009).

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“[A]n alien granted the privilege of voluntary departure

under 8 C.F.R. 1240.26(c) will not be deemed to have departed

under an order of removal if the alien departs the United States

no later than 30 days following the filing of a petition for

review, provides to DHS such evidence of his or her departure

(continued...)

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For the foregoing reasons, we will DISMISS Patel’s

petition for review for lack of jurisdiction, and DENY her

motion for a stay of voluntary departure in light of 8 C.F.R.

§ 1240.26(i).

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(...continued)

as the ICE Field Office Director may require, and provides

evidence DHS deems sufficient that he or she remains outside

of the United States.” 8 C.F.R. § 1240.26(i).

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