The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-1-2004
Barker v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-3927
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PRECEDENTIAL ____________
IN THE UNITED STATES COURT OF OPINION OF THE COURT
APPEALS ____________
FOR THE THIRD CIRCUIT
____________
ROSENN, Circuit Judge.
No. 02-3927 The petitioner-appellant, Sandra
____________ Barker, appeals from a final order by the
Board of Immigration Appeals (“Board”)
SANDRA BARKER, denying her motion to reopen her
Petitioner deportation proceedings. The Board
denied Barker’s motion to reopen its
v. decision, dismissing her appeal from an
immigration court’s order of deportation,
John Ashcroft, Attorney General of because of her failure to depart voluntarily
the United States, from this country as ordered. We affirm.
Respondent
I.
____________
Barker, a native and citizen of
On Petition for Review of an Order of Jamaica, entered the United States on
the Board of Immigration Appeals January 1, 1989, with a fiancée visa, with
INS No. A23 913 939 permission to remain in this country until
____________ April 14, 1989. She did not marry her
fiancé and remained in the United States
Submitted Under Third Circuit LAR longer than permitted. On June 26, 1996,
34.1(a) December 16, 2003 the Immigration and Naturalization
Service (INS), the predecessor to the
Before: ROTH, McKEE, and ROSENN, Bureau of Citizenship and Immigration
Circuit Judges Services, com men ced d epor tation
proceedings against her with the filing of
(Filed 12/24/03 ) an Order to Show Cause why she should
not be deported.
Alan M. Strauss
Barker appeared before an
Law Office of Stanley H. Wallenstein
immigration judge (IJ) in September 1996.
41-43 Beekman Street, 3rd Floor
She admitted the allegations contained in
New York, NY 10038
the Order to Show Cause. Based on the
admissions, the IJ found her deportable as
Counsel for Petitioner
charged. She requested relief and
protection from deportation in the form of
David V. Bernal
political a sylum, withholding of
William C. Minick
deportation, and suspension of deportation.
Anthony C. Payne
In the alternative, she sought the privilege
United States Department of Justice
of voluntary departure.
Office of Immigration Litigation
P.O. Box 878 Ben Franklin Station Barker offered testimony and
Washington, DC 20044 documentary evidence in support of her
applications for relief and protection from
Counsel for Respondent deportation. She sought asylum and
withholding of deportation based on her
claim of having been persecuted, and Barker with written notice of the
having a fear of persecution, in Jamaica on limitations on discretionary relief if she
account of her political opinion and her failed to depart voluntarily by October 4,
family’s alleged involvement with the 1997.
Jamaica National Party. She sought
Written notice was provided to
suspension of deportation based on a claim
Barker in English and Spanish and that
of extreme hardship if deported from the
“[o]ral notice of the contents of this notice
United States.
was given to the alien in his/her native
Upon a hearing, the IJ denied language, or in a language he/she
Barker’s application for asylum in all of its understands.”
aspects. The IJ, however, granted Barker’s
Barker appealed the IJ’s decision to
alternative request for voluntary departure
the Board. The Board dismissed the
until October 4, 1997. In granting
appeal on October 29, 2001. The Board’s
voluntary departure, the immigration judge
dismissal decision, however, “permitted
informed Barker orally:
[Barker] to depart from the United States
I have granted you voluntary voluntarily within 30 days from the [date
departure for a period of six of the Board’s decision] or any extension
months. If you do not appeal your beyond that time as may be granted by the
case, or if you appeal your case district director; and in the event of failure
and lose, then you will have to so to depart, [Barker] shall be deported as
leave the United States. Okay. It provided in the Immigration Judge’s
may be possible to get more time order.” 1
beyond October 4th, but you
Barker did not depart but filed a
would have to ask the Immigration
motion to reopen h er deportation
Service for that not me, I have no
proceedings with the Board. The motion
authority to extend that time. . . .
requested reconsideration of her eligibility
If you remain beyond the departure
for suspension of deportation in light of
date without a very good excuse,
new evidence unavailable at the time of
for example, if you get seriously
the IJ’s decision. Barker acknowledged in
sick or injured, then there will be
the motion that her “previous period of
penalties, you’ll be ordered
voluntary departure has expired.” The
deported back to Jamaica and
motion, therefore, alternatively requested
you’ll also lose the right to apply
that “the Board extend her voluntary
for certain kinds of important
departure until a day 30 days following
immigration benefits for a period
adjudication of the instant Motion,
of five years. I’m giving you
including any judicial review thereof.”
forms in English and in Spanish,
Barker subsequently supplemented her
that describes those penalties and
motion, indicating that she would be
I’m also giving you a copy of the
seeking to adjust her immigration statute
order that I’m entering today
based on her recent marriage to a United
d e n y in g t h e a s yl u m a n d
States citize n. The motion, as
withholding, and suspension and
supplemented, did not indicate that she had
granting you voluntary departure
for six months. Ms. Barker, do
you have any questions?
1
As noted by the IJ, he provided Barker never sought a judicial review
of the Board’s dismissal decision.
2
not received oral and written notice of the Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
consequences for failing to voluntarily 1994). In reviewing the Board’s findings
depart. Nor did she explain why she of fact under the substantial evidence
remained in the United States beyond her standard, this Court’s scope of review is
voluntary departure period. narrow. Sevoian, at 171. An alien seeking
judicial reversal of findings of facts by the
The Board denied Barker’s motion
Board must show that the evidence was
to reopen on two grounds. First, the Board
“so compelling that the no reasonable
concluded that the motion was filed
factfinder could fail to find” in her favor.
untimely. Second, the Board concluded
Elias-Zacarias v. INS, 502 U.S. 478, 483-
that Barker was statutorily barred, under §
84 (1992).
240B(d) of the Immigration and
Nationality Act, 8 U.S.C. § 1229c(d), from The Supreme Court has identified
applying for certain forms of discretionary three independent grounds for the denial of
relief, absent a showing of exceptional a motion to reop en im mig ration
circumstances for failing to depart proceedings: (1) the movant’s failure to
voluntarily. Specifically, the Board noted, establish a prima facie case for the relief
contrary to Barker’s assertion, that she sought; (2) the movant’s failure to
may otherwise qualify for an adjustment of introduce previously available, material
status “[was] not sufficient to establish evidence that justifies reopening; or (3) a
exceptional circumstances,” “such as determination that even if the above two
serious illness of the alien or death of an requirements were met, the movant would
immediate relative of the alien, but not not be entitled to the discretionary grant of
including less compelling circumstances relief sought. INS v. Abudu, 485 U.S. 94,
beyond the control of the alien.” (Brackets 105 (1988); Sevoian, at 169-70. “Motions
omitted.) The Board noted that Barker had for reopening of immigration proceedings
received both oral and written notice of the are disfavored. . . . This is especially true
consequences of failure to depart in a deportation proceeding, where, as a
voluntarily and she had failed to depart general matter, every delay works to the
voluntarily as ordered. The Board disadvantage of the deportable alien who
therefore concluded that Barker was wishes merely to remain in the United
statutorily barred from applying for States.” INS v. Doherty, 502 U.S. 314,
suspension of deportation and adjustment 323 (1992).
of status. This appeal followed.
A.
II.
On appeal, Barker argues first that
This Court has appellate the Board erred in denying her motion to
jurisdiction to review the Board’s denial of reopen because the IJ failed to provide her
a motion to reopen. Sevoian v. Ashcroft, with proper notice of the consequences for
290 F.3d 166, 169 (3d Cir. 2002). This failing to depart voluntarily. 2 Specifically,
Court reviews the Board’s denial of a
motion to reopen on grounds of failure to 2
make out a prima facie case for abuse of Barker also argues on appeal that her
discretion, and the Board’s findings of fact motion to reopen was timely filed. The
for substantial evidence. Id. at 173. Under respondent-appellee, John D. Ashcroft,
the abuse of discretionary standard, the Attorney General of the United States,
Board’s decision is reversible only if it is agrees with her argument in this regard,
“arbitrary, irrational, or contrary to law.” conceding that the Board erred in
concluding that Barker’s motion to
3
she argues that the IJ failed to provide the voluntarily “without a very good excuse,
requisite oral notice to her of each of the for example, if you get seriously sick or
consequences of failing to depart injured” is insufficient explanation of the
voluntarily, specifically the consequences statutory requirement of “exceptional
of losing the benefits of suspension of circumstances” because the judge’s words
deportation or adjustment of status.3 She were “vague.” Barker argues next that the
argues that the IJ’s general warning that Board erred in holding that she was
she would “lose the right to apply for ineligible for filing a motion to reopen.
certain kinds of important immigration
B.
benefits for a period of five years” is
insufficient. In addition, she argues that Contrary to Barker’s second
the IJ’s oral warning of a failure to depart argument, the Board never held in its
decision denying her motion to reopen that
she was ineligible for filing a motion to
reopen. The Board’s decision was based
reopen was untimely filed. on her statutory ineligibility to apply for
3
Section 242B(e)(2), 8 U.S.C. § suspension of deportation or adjustment of
1252b(e)(2) (1994) provides: status, absent a showing of “exceptional
circumstances,” for her failure to depart
(A) In General voluntarily as ordered. The Board
Subject to subparagraph (B), any alien concluded that she showed no statutorily
allowed to depart voluntarily under defined “exceptional circumstances.”
section 1254(e)(1) of this title or who has Barker has not disputed this conclusion on
agreed to depart voluntarily at his own appeal. Barker’s extensive second
expense under section 1252(b)(1) of this argument is, therefore, misguided.4
title who remains in the United States As correctly noted by the appellee,
after the scheduled date of departure, Barker failed to raise in her previous
other than because of exceptional motion to reopen that she did not receive
circumstances, shall not be eligible for adequate or sufficient oral notice of the
relief described in paragraph (5) for a consequences of failing to depart
period of 5 years after the scheduled date voluntarily. Her failure to raise this issue
of departure or the date of unlawful before the Board bars this Court’s
reentry, respectively. consideration of this claim now. Alleyne
v. INS, 879 F.2d 1177, 1182 (3d Cir.
(B) Written and oral notice required 1989) (citing Campos-Guardado v. INS,
Subparagraph (A) shall not apply to an
alien allowed to depart voluntarily
unless, before such departure, the 4
Attorney General has provided written Because Barker misinterprets the basis
notice to the alien in English and Spanish of the Board’s denial of her motion to
and oral notice either in the alien's native reopen, this Court will not consider
language or in another language the alien another argument of hers on appeal that
understands of the consequences under the Board’s construction of §§
subparagraph (A) of the alien's remaining 242B(e)(2(A) of the Immigration and
in the United States after the scheduled Nationality Act violates the Equal
date of departure, other than because of Protection Clause of the United States
exceptional circumstances. Constitution, which is based on such
misinterpretation.
4
809 F.2d 285, 291 (5th Cir.), cert. denied, deportation proceedings because of her
484 U.S. 826 (1987); Florez-De Solis v. failure to abide by the Order of Voluntary
INS, 796 F.2d 330, 335 (9th Cir. 1986). Departure. See Fiallo v. Bell, 430 U.S.
This Court will not, therefore, review 787, 792 (1977) (immigration legislation is
Barker’s first argument; it was not raised “subject only to narrow judicial review”);
before the Board.5 United States v. Pollard, 326 F.3d 397,
405-406 (3d Cir. 2003).
III.
Accordingly, the Board’s decision
In conclusion, we emphasize that
of denying Barker’s motion to reopen her
what bars the reopening of Barker’s
deportation proceedings will be affirmed.
deportation proceedings is her unexcused
Costs taxed against the appellant.
failure to comply with the Order of
Voluntary Departure. It was granted to her
as a privilege in response to her request.
“A grant of voluntary departure allows a
deportable alien to leave the country
without suffering the consequences of a
formal deportation order. A deported alien
is excludable from the country for five
years, 8 U.S.C. § 1182(a)(17) (1982), and
commits a felony if he or she ever returns
without permission. 8 U.S.C. §§ 1252(f),
1326 (1982).” Cunanan v. INS, 856 F.2d
1373, 1374 n.1 (9th Cir. 1988).
Unfortunately, Barker did not avail herself
of the privilege of voluntary departure.
The penalty for her unexcused failure may
appear to be harsh in view of her recent
marriage, but this Court notes that her
failure to depart voluntarily has also
caused INS to “[become] involved in
further and more costly procedures” by
expending additional resources in
removing her that could have been avoided
had she complied with the original order
requested by herself. See Zazueta-Carrillo
v. Ashcroft, 322 F.3d 1166, 1173 (9th Cir.
2003) (quoting Ballenilla-Gonzalez v.
INS, 546 F.2d 515, 521 (2d Cir.1976)).
We do not have the discretionary power to
lift the statutory bar against reopening her
5
We note here, however, that Barker’s
first argument has no merit because the
record clearly shows that the IJ provided
both adequate oral and written notice as
statutorily required.
5