David Wachira Ngarurih v. John D. Ashcroft, Attorney General of the United States

GREGORY, Circuit Judge,

concurring in part and dissenting in part:

For the reasons that follow, I concur in the majority’s conclusion that substantial evidence supports the Board of Immigration Appeal’s (“BIA”) denial of Ngarurih’s application for asylum and that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) divests us of jurisdiction to reinstate Ngarurih’s voluntary departure period. However, while I believe that Ngagurih is not entitled to a stay of voluntary departure, I respectfully dissent from the majority’s far reaching, and in my view unnecessary, conclusion that the IIRIRA precludes us from exercising our general equitable powers to stay or toll a voluntary departure *196 period. As the Sixth, and Ninth Circuits, I do not believe that the IIRIRA precludes us from staying a voluntary departure period pending our resolution of an asylum appeal provided that the merits of such appeal justify a stay of the removal order. Nwakanma v. Ashcroft, 352 F.3d 325, 326 (6th Cir.2003)(per curiam Xholding that the IIRIRA does not bar federal appellate courts from staying a voluntary departure period and thus concluding that “[a] stay of voluntary departure pending appellate review should ... be available on the same showing that authorizes a stay of removal pending review”); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir.2003)(“[W]e hold that [post-IIRIRA] this court retains equitable jurisdiction to stay the voluntary departure period ... [and] that the standards for obtaining a stay of removal shall also apply to stays of voluntary departure.”). Without the ability to maintain the status quo by staying a voluntary departure period, our review of asylum appeals will be rendered meaningless because the alien will already have been subjected to the harm from which our decision is supposed to protect him or her. If that harm comes in the form of death, imprisonment or the inability to depart their native country, our determination that an alien is entitled to asylum is meaningless because the alien will be unable to return to the United States and thus give effect to our decision. In the instances in which aliens avail themselves of a voluntary departure and no harm results therefrom, we will be factually forced to conclude that the alien does not have a well-founded fear of persecution. Thus, our appellate review will be rendered a mere formality in the asylum application process.

I.

The BIA denied Ngarurih’s application for political asylum because “his return to Kenya for 2 months in 1997 ... constitute[d] a fundamental change in circumstances and diminishe [d] his claim to have a well-founded fear of future persecution.” J.A. 319. Like the majority, I believe substantial evidence supports this conclusion. During his two month return to Kenya, Ngarurih was publicly involved in his younger brother’s criminal appeal, submitting court documents bearing his signature, traveling to various villages in Kenya to investigate the facts of his brother’s case and posting his brother’s bond. Despite being publicly active in his brother’s criminal appeal, Ngarurih, whose presence government officials were aware of, was not subjected to any attacks, bodily harm, threats or other coercive measures during his two month stay in Kenya. * Indeed, government officials did not even attempt to impede Ngarurih’s efforts to assist with his brother’s appeal and release from prison. Moreover, Ngarurih has not brought to our attention any events that have occurred subsequent to his 1997 trip that would cause him to have a well-founded fear of persecution if he were to return to Kenya.

The BIA also denied Ngarurih’s application for “humanitarian asylum” on the basis that “his willing return to Kenya undermine[d] his claim to have ‘compelling reasons for being unwilling or unable to return’ such that asylum [was] warranted, even in the absence of a well-founded fear.” Id. (quoting 8 C.F.R. § 208.12 (b)(l)(iii)(emphasis added)). Unlike the majority, I believe that the BIA incorrectly determined that Ngarurih “willing *197 ly” returned to Kenya. Ngarurih only returned to Kenya after being informed that his younger brother — -whom he reared as a son prior to entering the United States— had been falsely accused of raping their niece and forced to enter a guilty plea. Having being tortured in a Kenyan prison himself, Ngarurih understandably felt compelled to assist his brother, whom he viewed more like a son, in appealing what he believed to be an unjust conviction even if doing so required him to place his life in danger by returning to Kenya. Under such circumstances, I do not believe that Ngarurih’s trip to Kenya can be considr ered one that was taken “willingly.” Nonetheless, like the majority, I am unable to find that the BIA’s denial of Nga-rurih’s application for “humanitarian asylum” is manifestly contrary to the daw or an abuse-of discretion given that “humanitarian asylum” has been limited to extreme cases, such as that “of the German Jews, the victims of the Chinese’Cultural Revolution,’ [and] survivors of the Cambodian genocide.” Bucur v. INS, 109 F.3d 399, 405 (7th Cir.1997)(internal citation omitted).

II.

The majority concludes that the IIRIRA precludes us from both reinstating and staying Ngarurih’s voluntary departure period. While I agree that the IIRIRA divests us of jurisdiction to reinstate Nga-rurih’s voluntary departure period, I do not believe that the IIRIRA precludes us from staying Ngarurih’s voluntary departure period. Rather, I simply believe that Ngarurih is not entitled to a stay of his voluntary departure period because he is unable to satisfy the requirements for a stay of removal.

The IIRIRA provides that “[n]o court shall have jurisdiction over an appeal from [the] denial of a request for an order of voluntary. departure ... nor shall any court order a . stay of an alien’s removal pending consideration of any claims with respect to voluntary departure.” 8 U.S.C. § 1229c(f). The IIRIRA further provides that “[n]otwithstanding any other provision of law, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229c [voluntary departure] of this title.” Id. § 1252(a)(2)(B)®. Based on these provisions, I concur in the majority’s conclusion that the IIRIRA precludes us from reinstating Ngarurih’s voluntary departure period. These provisions make clear Congress’s intent to divest federal appellate courts of jurisdiction to determine whether aliens are entitled to the discretionary relief of voluntary departure. Given that we no longer have jurisdiction to review the BIA’s grant or denial of voluntary departure, I do not believe we have the authority to reinstate the BIA’s voluntary departure determinations.

I do not, however, believe that these provisions preclude us from exercising our equitable jurisdiction to stay a voluntary departure period pending our resolution of an asylum appeal. The provision relied upon by the majority to reach this conclusion — 8 U.S.C. § 1252 (a)(2)(B)® — only precludes us from reviewing the merits of the BIA’s decision to grant voluntary departure. As the Sixth Circuit recently held: “[I]n granting a stay of voluntary departure, we do not pass on the substance of the decision to grant voluntary departure; we only stay the immediate effectiveness of the relief already granted by [the BIA] in [its] discretion, to allow the alien petitioner to receive appellate review.” Nwakanma, 352 F.3d at 326 . Consequently, by granting a stay of voluntary departure we do not “evade,” as the majority concludes, the statutory mandate of 8 U.S.C. § 1252 (a)(2)(B)® — “no court *198 shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229c [voluntary departure]” — by resort to equity. Rather, we ensure, by maintaining the status quo, that our decisions rendered in asylum appeals, appeals over which we clearly have jurisdiction, are not rendered meaningless. As the Ninth and Sixth Circuits have noted, asylum appeals will in effect be rendered meaningless if individuals that have fled their native lands based on well-founded fears of persecution are forced to return to countries where they may be killed or imprisoned and thus unable to return to the United States if we determine that they are entitled to asylum. Nwakanma, 352 F.3d at 326 (“Asylum applicants with potentially meritorious cases establishing their genuine fear of persecution in their home countries will face either returning to those countries and possibly life-threatening persecution or staying in the United States, letting the clock run out on their voluntary departure periods, and suffering the penalties that attach.”); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1177 (9th Cir.2003)(Berzon, J., concurring)(“Without our equitable authority to stay the availability of voluntary departure periods, at the time an alien is granted voluntary departure he or she would be faced with having to leave forthwith to preserve the benefits of voluntary departure, risking nonreturn in spite of a potentially meritorious case ... [thus] in effect voiding] the asylum appeal.”).

Further undermining the majority’s conclusion is the fact that the IIRIRA only limits our authority to stay BIA orders so as to allow for the consideration of claims pertaining to voluntary departure. Specifically, the IIRIRA provides that “[n]o court shall ... order a stay of an alien’s removal pending consideration of any claims with respect to voluntary departure.” 8 U.S.C. § 1229e(f). Consequently, the IIRIRA “only prohibits stays of removal pending consideration of voluntary departure claims, not the opposite, stays of granted periods of voluntary departure pending consideration of removal orders.” Zazueta-Carrillo, 322 F.3d at 1176 (Berzon, J., concurring). The fact “[t]hat certain kinds of stays pertaining to voluntary departure orders are prohibited but not others is, under the case law interpreting the IIRIRA, a strong indication that, except as limited by the statute, we retain our traditional equitable power to issue stays preserving the status quo.” Id.; see Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 487 , 119 S.Ct. 936 , 142 L.Ed.2d 940 (1999)(narrowly construing section 1252(g) of the IIRIRA); Andreiu v. Ashcroft, 253 F.3d 477, 481-82 (9th Cir.2001)(e% banc )(narrowly construing section 1252(f) of the IIRIRA).

In addition to not being supported by the IIRIRA’s text, the result that follows from the majority’s conclusion counsels against it. Under the majority’s conclusion, an alien denied voluntary departure, but who meets the standard for a stay of removal, can obtain equitable relief and thus remain in this country while pursuing his appeal whereas an alien granted the benefit of voluntary departure must leave the country while seeking judicial review. Some may argue that this is the price that aliens who voluntarily depart pay in return for the benefit of not being barred from obtaining relief under the Immigration and Naturalization Act (“INA”) for a period of ten years, as are aliens removed involuntarily. This, however, is a policy decision best left to Congress. Thus, absent clear statutory language, which I do not find in the IIRIRA, we should not force aliens with possibly meritorious asylum appeals to choose between preserving certain benefits made available under the INA and their safety. Moreover, such reasoning *199 fails to recognize that aliens with well-founded fears of persecution will be unable to take advantage of the benefits conferred by voluntary departure if they are killed or imprisoned upon returning to their native country.

I also note that Ngarurih's family did not experience any form of persecution during his two month stay in Kenya.