Interim Decision #3290

Interim Decision #3290

Interim Decision #3290

In re Arie SHAAR, Respondent

File A72 519 787 et al.- Los Angeles

Decided July 11, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien who has filed a motion to reopen during the pendency of a voluntary departure

period in order to apply for suspension of deportation and who subsequently remains in the

United States after the scheduled date of departure is statutorily ineligible for suspension of

deportation pursuant to section 242B(e)(2)(A) of the Immigration and Nationality Act,

8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the notice requirements of that section have

been satisfied, absent a showing that the alien’s failure to timely depart the United States

was due to “exceptional circumstances” under section 242B(f)(2) of the Act.

(2) Neither the filing of a motion to reopen to apply for suspension of deportation during the

pendency of a period of voluntary departure, nor the Immigration Judge’s failure to adjudicate the motion to reopen prior to the expiration of the alien’s voluntary departure period

constitutes an “exceptional circumstance.”

FOR THE RESPONDENT: Moshe A. Young, Esquire, Studio City

AMICUS CURIAE FOR THE RESPONDENT: Helena Tetzeli, Esquire, Miami, Florida

AMICUS CURIAE FOR THE RESPONDENT: Daniel A. Stein, Esquire, Washington, D.C.

FOR IMMIGRATION AND NATURALIZATION SERVICE: Stewart Deutsch, Appellate

Counsel

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, FILPPU, COLE, Board Members. Dissenting Opinions: SCHMIDT, Chairman;

VILLAGELIU, Board Member; ROSENBERG, Board Member; and GUENDELSBERGER,

Board Member, joined by MATHON, Board Member.

HURWITZ, Board Member:

I. THE FACTS

The respondents are a family, citizens of Israel, consisting of two parents

and their 23-year-old son. They entered the United States on July 17, 1987,

as nonimmigrant visitors for pleasure. On March 12, 1993, an Order to Show

Cause and Notice of Hearing (Form I-221) was issued for each respondent,

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charging them with deportability under section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. V 1993), as overstays. At a deportation hearing on August 19, 1993, the respondents were

granted voluntary departure on or before April 30, 1994, with an alternate

order of deportation to Israel if they should fail to depart as required. They

were given both oral and written warnings regarding the consequences of

failing to leave the United States within the period of voluntary departure

pursuant to section 242B(e)(2) of the Act, 8 U.S.C. § 1252b(e)(2) (Supp. V

1993). The Immigration and Naturalization Service later extended this period

of voluntary departure to October 21, 1994. On October 19, 1994, 3 days

prior to the expiration of their voluntary departure, the respondents filed a

motion to reopen in order to apply for suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) (1994). The respondents alleged in

their motion that they were required to depart the United States on or before

October 21, 1994, and that they were not eligible for suspension at the time of

the deportation hearing. The Service opposed the motion on the ground that

the respondents failed to establish a prima facie case of extreme hardship.

In a decision dated December 2, 1994, the Immigration Judge denied the

motion on the ground that the respondents are ineligible for relief from

deportation as a matter of law. The Immigration Judge stated that the respondents have not provided proof of an authorized extension of voluntary departure by the Service and have not claimed exceptional circumstances

preventing their timely departure. See sections 242B(e)(2) and (5) of the Act.

The respondents filed an appeal of the Immigration Judge’s decision in

which they attached copies of voluntary departure notices indicating that

their period of voluntary departure had been extended to October 21, 1994.

Because their motion to reopen had been filed before the expiration of voluntary departure, they requested a remand of the proceedings to the Immigration Court for a hearing on the merits of their suspension applications.1

II. ISSUE

The issue in this case is whether the expiration of the period of voluntary

departure while a motion to reopen is pending renders a respondent statutorily ineligible for suspension of deportation pursuant to section

242B(e)(2)(A) of the Act if the notice requirements of section 242B(e)(2)(B)

of the Act have been satisfied.

1 The two older respondents state in a Supplement to the Notice of Appeal dated December

28, 1995, that they are now eligible for adjustment of status due to their daughter’s

naturalization on November 9, 1995. However, they have not submitted applications for

adjustment or any evidence that visa petitions have been filed on their behalf, both of which are

necessary to establish prima facie eligibility for such relief. See section 245(a) of the Act,

8 U.S.C. § 1255(a) (1994).

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III. STATUTORY PROVISIONS

Section 242B(e)(2) of the Act provides, in pertinent part, as follows:

(A) IN GENERAL. — Subject to subparagraph (B), any alien allowed to depart voluntarily

under section 244(e)(1) or who has agreed to depart voluntarily at his own expense under

section 242(b)(1) who remains in the United States after the scheduled date of departure,

other than because of exceptional circumstances, shall not be eligible for relief described in

paragraph (5) for a period of 5 years after the scheduled date of departure or the date of

unlawful reentry, respectively.

(B) WRITTEN AND ORAL NOTICE REQUIRED. — Subparagraph (A) shall not apply to

an alien allowed to depart voluntarily unless, before such departure, the Attorney General

has provided written notice to the alien in English and Spanish and oral notice either in the

alien’s native language or in another language the alien understands of the consequences

under subparagraph (A) of the alien’s remaining in the United States after the scheduled

date of departure, other than because of exceptional circumstances.

Under section 242B(e)(5), the relief described in subparagraph (A)

includes “voluntary departure under section 242(b)(1),” “suspension of

deportation or voluntary departure under section 244,” and “adjustment or

change of status under section 245, 248, or 249.” The term “exceptional circumstances” refers to “exceptional circumstances (such as serious illness of

the alien or death of an immediate relative of the alien, but not including less

compelling circumstances) beyond the control of the alien.” Section

242B(f)(2) of the Act.

IV. ANALYSIS

A. Statutory Language

The starting point in statutory construction is the language of the statute.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya,

464 U.S. 183, 189 (1984); In re Perroton, 958 F.2d 889, 893 (9th Cir. 1992);

Matter of Farias, 21 I&N Dec. 269, at 272 (BIA 1996). If the language of the

statute is clear and unambiguous, judicial inquiry is complete and that language controls absent rare and exceptional circumstances. In re Perroton,

supra, at 893. The language of section 242B(e)(2) of the Act is clear on its

face and without ambiguity. In pertinent part, this statute mandates a period

of ineligibility for certain forms of relief for “any alien allowed to depart voluntarily under section 244(e)(1) . . . who remains in the United States after

the scheduled date of departure, other than because of exceptional circumstances” after having been given proper notice of the consequences of failing

to timely depart. Section 242B(e)(2) of the Act (emphasis added). In the

instant case, the respondents, after having been granted voluntary departure

and warned of the consequences of failing to timely depart, remained in the

United States after their scheduled date of departure, October 21, 1994.

Accordingly, unless the respondents can establish “exceptional circumstances” for having remained in the United States beyond this date, they are

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ineligible for suspension of deportation or the other forms of relief enumerated in section 242B(e)(5) of the Act.

Section 242B(f) of the Act defines “exceptional circumstances” as

“exceptional circumstances (such as serious illness of the alien or death of an

immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.” (Emphasis added.) Webster’s II

New Riverside University Dictionary 450 (1984) defines “exception” as

“[o]ne that is excepted, esp. a case not conforming to normal rules” and

defines “exceptional” as “[b]eing an exception: unusual.” Sections 242B(e)

and (f) contemplate that unanticipated circumstances may arise which are

beyond an alien’s control and which prevent the alien from leaving on or

before the scheduled date of departure. Congress listed as two examples of

events which would qualify as exceptional circumstances the serious illness

of the alien or the death of an immediate relative of the alien and then specified that events less compelling than these will not qualify as an exceptional

circumstance.

We find that the mere filing of a motion to reopen during the pendency of a

period of voluntary departure in order to apply for suspension of deportation

does not fit within the definition of an “exceptional circumstance.” First, the

accrual of 7 years of continuous physical presence in this country during the

voluntary departure period by the predictable passage of time is not unusual

or out of the ordinary and is not a compelling event which could not have

been anticipated. Section 242B(e)(2) of the Act is premised on the fact that

aliens often become eligible for additional forms of relief from deportation,

including suspension of deportation, after having been granted voluntary

departure; otherwise, there would be no need for that section of the statute.

An alien’s filing of a motion to reopen after accruing 7 years of continuous

physical presence in this country is certainly less compelling than the two

examples of exceptional circumstances listed in the Act: the alien’s serious

illness or the death of an immediate family member.

Moreover, the filing of a motion to reopen to apply for suspension of

deportation after having been granted voluntary departure is not an exceptional circumstance which is “beyond the control” of the alien. The respondents first made the decision to request voluntary departure, agreed to leave

the United States and then, months later, chose to request reopening of the

proceedings for the purpose of applying for suspension of deportation. In

requesting voluntary departure, the respondents indicated their intention to

leave the country on or before the date set by the Immigration Judge or any

extension thereof granted by the district director.

Nor does the Immigration Judge’s failure to adjudicate the respondents’

motion prior to the expiration of their voluntary departure period constitute

an “exceptional circumstance.” In view of the heavy caseload of the Immigration Courts, it can hardly be termed “unusual” or “exceptional” that the

Immigration Judge was unable to render a decision on the motion in the 3-day

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period between the filing of the respondents’ motion and the expiration of

their voluntary departure. The respondents, who agreed to leave the country

on or before October 21, 1994, could have anticipated that the Immigration

Judge would not reach their motion on or before that date. The Immigration

Judge’s inability to do so does not excuse the respondents’ failure to timely

depart the country in accordance with their grant of voluntary departure.

We have pointed out that voluntary departure is “a privilege and a matter

of grace.” Matter of Urpi-Sancho, 13 I&N Dec. 641, 643 (BIA 1970) (citing

Matter of Turcotte, 12 I&N Dec. 206, 208 (BIA 1967)); see also Garcia-Lopez v. INS, 923 F.2d 72, 75 (7th Cir. 1991)(“Voluntary departure . . . is

a privilege, not a right.”). In addition to fulfilling certain statutory requirements, an alien seeking voluntary departure must establish that he or she is

willing to depart from the United States and has the immediate means with

which to do so. 8 C.F.R. § 244.1 (1995); see also Matter of Quintero, 18 I&N

Dec. 348, 350 (BIA 1982); Matter of Tsang, 14 I&N Dec. 294, 296 (BIA

1973); Matter of Bulos, 15 I&N Dec. 645, 648 (BIA 1976); Matter of D-F-, 4

I&N Dec. 589, 591 (BIA, A.G. 1952). In Matter of Medina, 19 I&N Dec. 734

(BIA 1988), we stated as follows:

[A]n immigration judge’s authority to grant relief from deportation is limited to that specifically delegated to him or her by the Attorney General. See sections 103(a) and 242(b) of the

Act. An immigration judge’s authority to grant a respondent voluntary departure is conditioned upon a finding that the respondent is “willing and has the immediate means with

which to depart promptly from the United States.”

Id. at 746 (citations omitted) (quoting 8 C.F.R. § 244.1 (1988)).

Because voluntary departure is premised on an alien’s being able and willing to promptly depart the United States, an Immigration Judge may not grant

voluntary departure for an indefinite period of time. Matter of Quintero,

supra, at 351; Matter of Anaya, 14 I&N Dec. 488 (BIA 1973), aff’d sub nom.

Anaya-Perchez v. INS, 500 F.2d 574 (5th Cir. 1974); Matter of Chamizo, 13

I&N Dec. 435 (BIA 1969); see also Matter of Medina, supra, at 746-47 (contrasting voluntary departure with extended voluntary departure, which presupposes that an alien is unwilling or unable to promptly depart and which is

designed to allow an alien to remain in the United States for an indefinite

period of time). Rather, the Immigration Judge determines a reasonable

amount of time necessary to allow the alien to readily and conveniently leave

this country. Matter of Medina, supra, at 747 (citing Matter of OcampoOcampo, 13 I&N Dec. 707 (BIA 1971)).

In sum, the purpose of voluntary departure is not to allow aliens who are

otherwise deportable to remain in the United States for an indefinite period of

time until they are eligible for some other form of relief from deportation.

Rather, voluntary departure is a form of relief from deportation which allows

eligible aliens who can establish that they are able and willing to depart the

United States by a specific date set by an Immigration Judge or district director to do so and thus avoid the stigma and adverse consequences related to

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deportation.2 The whole thrust of this form of relief is that the alien is going

to leave the United States in lieu of an order of deportation.

It may well be true that many aliens accept voluntary departure with the

hope of actually remaining here and qualifying for permanent relief from

deportation. We see, in the enactment of section 242B, an unstated but clear

disapproval of that practice. The bar to relief for persons who fail to depart

reinforces the premise underlying voluntary departure, namely, that the alien

will shortly be leaving the United States. Congress thus expected that an alien

who is given voluntary departure will actually leave the United States in

accordance with that grant of relief. The only qualification pertains to events

of an exceptional nature beyond the control of the alien.

The respondents in the case before us agreed to voluntarily depart the

United States and established to the satisfaction of the Immigration Judge

that they are willing and able to do so. Despite their professed intention to

leave this country on or before the expiration of their voluntary departure

date, they have failed to depart. The respondents’ filing of a motion to reopen

during the pendency of their voluntary departure period in order to apply for

suspension of deportation does not constitute an “exceptional circumstance”

which is beyond their control and which prevented them from departing the

United States. Nor does the Immigration Judge’s failure to adjudicate their

motion prior to the expiration of their voluntary departure period constitute

an “exceptional circumstance.” There may be cases in which the facts that are

alleged to constitute a prima facie case of “extreme hardship” for the purpose

of reopening to apply for suspension may also qualify as an “exceptional circumstance” beyond the alien’s control which prevented the alien from timely

departing the country; that is, an exceptional event of the same degree of seriousness as that cited in section 242B(e)(2) which occurs following the grant

voluntary departure. However, no such compelling circumstance has been

alleged in the case before us.

B. No Tolling

The American Immigration Lawyers Association (“AILA”) has argued in

an amicus curiae brief that the filing of a nonfrivolous motion to reopen prior

to the expiration of a period of voluntary departure tolls expiration of the

period of voluntary departure. AILA notes that the purpose of the Board’s

holdings in Matter of Villegas Aguirre, 13 I&N Dec. 139 (BIA 1969), and

Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), that an appeal from an

Immigration Judge’s decision has a tolling effect with regard to voluntary

departure, was to protect an alien in deportation proceedings from the risk of

2 A deported alien is not able to return to this country for 5 years unless he obtains special

permission. Section 212(a)(6)(B) of the Act, 8 U.S.C. § 1182(a)(6)(B) (1994); Garcia-Lopez v.

INS, supra, at 74-75 (7th Cir. 1991); Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir.

1988).

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losing a voluntary departure grant by filing an appeal from an Immigration

Judge’s adverse decision. AILA argues that because an alien has the right to

file a motion to reopen, just as he has the right to appeal an Immigration

Judge’s adverse decision, the purpose of these holdings applies equally to an

alien who has filed a nonfrivolous motion to reopen or has appealed from the

denial of such a motion.

This position finds no support in the federal regulations or prior case law

and fails to acknowledge the disfavor with which motions to reopen have

long been viewed. Both federal regulations and case law have long accorded

disparate treatment to aliens appealing from an initial order of an Immigration Judge and those seeking reopening of a deportation proceeding. The

right of an alien to pursue an appeal of an Immigration Judge’s initial decision in a deportation proceeding is protected not only by federal regulations

mandating an automatic stay of execution of the decision during the pendency of the appeal, but also by Board precedent ensuring that an alien who

files a nonfrivolous appeal will not forfeit a grant of voluntary departure by

pursuing an appeal to the Board. Matter of Chouliaris, supra; Matter of

Villegas Aguirre, supra. However, even in the case of an appeal from an initial decision by an Immigration Judge in a deportation proceeding, the protection of an alien’s grant of voluntary departure is not absolute. Our concern

that an alien filing an appeal from an initial decision of an Immigration Judge

should not lose a grant of voluntary departure has been tempered by our

desire to avoid unduly prolonging the departure of deportable aliens and to

discourage the filing of frivolous appeals. See Matter of R-P-, 20 I&N Dec.

230 (BIA 1990) (declining to grant further period of voluntary departure to

alien who appealed from decision which granted him requested relief); Matter of Patel, 19 I&N Dec. 394 (BIA 1986)(declining to grant further period of

voluntary departure to alien who filed frivolous appeal).

While federal regulations and Board precedent have sought to protect an

alien’s right to appeal the initial decision of an Immigration Judge, motions

to reopen a final deportation order have long been viewed with disfavor. The

Supreme Court has noted that the regulation pertaining to motions to reopen,

8 C.F.R. § 3.2 (1995), “requires that under certain circumstances a motion to

reopen be denied, but it does not specify the conditions under which it shall

be granted.” INS v. Doherty, 502 U.S. 314, 322 (1992). After recognizing that

the Attorney General has “broad discretion” to grant or deny such motions,

the Supreme Court stated: “Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing, and

motions for a new trial on the basis of newly discovered evidence. This is

especially true in a deportation proceeding where, as a general matter, every

delay works to the advantage of the deportable alien who wishes merely to

remain in the United States.” Id. at 724-25 (footnote omitted); see also Matter of Coelho, 20 I&N Dec. 464, 471-73 (BIA 1992).

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While federal regulations mandate an automatic stay of execution of an

Immigration Judge’s initial decision while an appeal is pending with the

Board, an automatic stay is not available to an alien filing a motion to reopen

or a motion to reconsider, or filing an appeal from an Immigration Judge’s

denial of such a motion. 8 C.F.R. §§ 3.6(b), 3.8(a) (1995). Indeed, the Board

has noted that “the mere filing of a motion to reopen or an application for

relief from deportation does not allow the alien to remain in the United States

pending the decision on his application or motion.” Matter of Tuakoi, 19 I&N

Dec. 341, 349 (BIA 1985). In order for an alien to obtain a stay of execution

of any decision made in the case following the alien’s filing of a motion to

reopen or reconsider or following the alien’s filing of an appeal from the

denial of such a motion, the Board or the Immigration Judge must specifically grant such a stay. 8 C.F.R. §§ 3.6(b), 3.8(a) (1995). Accordingly, the

regulations contemplate that an alien under a final order of deportation may

be deported while a motion is pending or while an appeal from an Immigration Judge’s denial of a motion is pending. They also contemplate that an

alien who has been granted voluntary departure may have to depart the

United States while a motion is pending or while an appeal from the denial of

a motion is pending, or that an alien whose period of voluntary departure has

expired while a motion to reopen is pending may be deported prior to the rendering of a decision on the motion or prior to the rendering of a decision on

the appeal from a denial of the motion.

Although an alien who files a motion to reopen deportation proceedings

does not have the benefit of an automatic extension of the voluntary departure period, such an alien is not completely without recourse. The alien may

seek an extension of this period from the district director. 8 C.F.R. § 244.2

(1995). If the deportation proceeding has been reopened for a purpose other

than solely making an application for voluntary departure, the alien may seek

an extension of voluntary departure from the Immigration Judge or the

Board. Id. Accordingly, in the instant case, the respondents could have

sought a second extension of their voluntary departure period from the district director prior to October 22, 1994. The record contains no evidence that

they made such a request.

V. CONCLUSION

We are not unmindful of the concerns raised by the dissenters, who point

to harsh, and in their view, unfair results that may occur through the implementation of this statute. Regulation changes regarding the granting and

extending of voluntary departure could be considered in order to assist in

ameliorating the harsh results for those who file motions to reopen in a timely

fashion. The statute, however, is clear in its requirement that a deportable

alien must leave the United States within the time of voluntary departure and

that certain consequences will result if the alien fails to depart, absent very

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limited exceptional circumstances. The Congress was clearly insisting upon

finality to these proceedings. This opinion is consistent with that intent.

The respondents filed a motion to reopen on October 19, 1994, in order to

apply for suspension of deportation. They did not obtain a second extension

of voluntary departure from the district director prior to the expiration of their

voluntary departure period on October 22, 1994. Additionally, the filing of

the motion did not result in a tolling or extension of the voluntary departure

period. Because they remained in the United States after the scheduled date

of departure, a date by which they agreed to leave, and have not shown

“exceptional circumstances” for having remained, the Immigration Judge

correctly determined that they are now statutorily ineligible for suspension of

deportation under section 242B(e)(2) of the Act. Accordingly, the appeal will

be dismissed.

ORDER:

The appeal is dismissed.

DISSENTING OPINION: Paul W. Schmidt, Chairman

I respectfully dissent. I agree with the thoughtful dissenting opinions of

my colleagues, Board Members Villageliu, Rosenberg, and Guendelsberger.

The analyses in those opinions produce results that are fair, practical, consistent with congressional intent, and in conformity with due process. See Yeung

v. INS, 76 F.3d 337 (11th Cir. 1995); Matter of Silva, 16 I&N Dec. 26 (BIA

1976).

The result in a motion to reopen case properly should depend upon the

merits of the motion filed by the respondents, provided that the motion to

reopen was “grantable” when filed. Neither the ability of the Immigration

Judge or this Board to adjudicate the motion prior to the expiration of voluntary departure, nor the willingness of the opposing party, the Immigration

and Naturalization Service, to grant an extension of voluntary departure time

should be the determinative factor in adjudicating such a motion. I find no

evidence that Congress intended an application of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), that would make either

of these factors controlling.

In addition to the points raised by my dissenting colleagues, the “exceptional circumstances” exception to section 242B leads to the conclusion that

the respondents’ motion should be considered on its merits.

I. APPLICABLE STATUTORY PROVISION

Section 242B of the Act provides that an alien who has failed to depart

voluntarily, after receiving certain statutory warnings of the consequences of

such failure, is barred from applying for certain immigration benefits for a

period of 5 years. Suspension of deportation is one of the barred benefits.

There is a statutory exception to the bar for an alien whose failure to depart

voluntarily was because of exceptional circumstances beyond the control of

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the alien. The statute does not provide a comprehensive definition of “exceptional circumstances . . . beyond the control of the alien.” Rather, it provides

several parenthetical examples indicating that the circumstances should be at

least as compelling as those caused by serious illness of the alien or death of

an immediate relative. Otherwise, the definition is left to us, acting for the

Attorney General.

In defining and applying the statutory exception, we can look to the overall statutory context in which section 242B was enacted. That section was

part of a comprehensive effort by Congress in 1990 to promote finality in

immigration determinations. See Stone v. INS, 514 U.S. 386, 399 (1995).

We can also consult the legislative history. The legislative history of the

term “exceptional circumstances . . . beyond the control of the alien” refers to

that term as it is used in an analogous provision of section 242B relating to

failure of an alien to appear for an immigration hearing after receiving appropriate warnings of the consequences. That legislative history states, in relevant part:

Additionally, the conferees expect that in determining whether an alien’s failure to appear

was justifiable the Attorney General will look at the totality of the circumstances to determine whether the alien could not reasonably have been expected to appear.

H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990), reprinted in 1990

U.S.C.C.A.N. 6784, 6797.

In other words, viewing the statutory scheme of section 242B and the legislative history as a whole, Congress expected the Attorney General and her

delegates to give the phrase “exceptional circumstances . . . beyond the control of the alien” a fair, realistic interpretation that would promote finality in

the immigration system while taking into account the totality of the circumstances surrounding the alien’s particular failure to comply. There is no reason to presume that Congress expected less of the Attorney General in

deciding “failure to depart” cases such as this one.

II. EXCEPTIONAL CIRCUMSTANCES TEST FOR

MOTIONS TO REOPEN

A reasonable interpretation of exceptional circumstances beyond the control of the alien that meets the congressional intent takes into account the following three factors: (1) whether the respondent filed the motion to reopen

prior to the expiration of authorized voluntary departure; (2) whether the

motion to reopen was grantable under statutory and discretionary criteria

when filed; and (3) whether purported statutory ineligibility under section

242B would arise solely because of the inability of the Immigration Judge or

this Board to adjudicate the motion prior to the expiration of voluntary departure. When these criteria are fulfilled, the exceptional circumstances beyond

the control of the alien exception applies to permit the granting of the motion

to reopen.

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III. THE STATUTORY PURPOSES ARE FULFILLED

The foregoing interpretation produces a result that both satisfies due process and conforms to the overall intent of section 242B. It preserves the jurisdiction of the Immigration Judge and this Board to act on a meritorious

motion to reopen that meets all of the conditions for a grant at the time it is

filed. It does not make the mere happenstance of when the Immigration Judge

or this Board is able to adjudicate the motion, or the willingness of the Service to extend a grant of voluntary departure, the sole determinative factors. I

note that both of the foregoing events clearly are beyond the control of the

alien, which also militates against giving them conclusive effect under the

language of section 242B.

On the other hand, the foregoing interpretation of exceptional circumstances is consistent with the intent of section 242B to bring finality to deportation proceedings. It would invoke the exception to section 242B in a narrow

class of cases similar to that described above.

For example, this interpretation would not aid, among others, an alien

whose voluntary departure time had expired before moving to reopen or who

did not meet the statutory and discretionary criteria for reopening at the time

of filing. Thus, only aliens with meritorious cases for reopening would find it

advantageous to move to reopen. Others would have an incentive to voluntarily depart in a timely manner.

Combined with the recently promulgated “motions and appeals” regulations referenced in Board Member Villageliu’s dissenting opinion, my interpretation would promote finality in immigration proceedings. It would do so

in a fair, reasonable, and practical manner that takes cognizance of the realities of both the alien’s situation and the system established for adjudicating

motions to reopen in a fair and efficient manner. Thus, congressional intent

would be fulfilled in a way that properly balances the interests involved and,

therefore, satisfies due process.

For the foregoing reasons, I join my dissenting colleagues in concluding

that a remand to the Immigration Judge for consideration of the merits of the

respondents’ motion is required. Consequently, I dissent from the decision

to dismiss the respondents’ appeal.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member

I respectfully dissent from the majority’s conclusion that an alien who

files a timely motion to reopen seeking relief from deportation is subject to

the bar from such relief prescribed by section 242B(e)(2) of the Immigration

and Nationality Act, 8 U.S.C. § 1252b(e)(2) (1994), if the period of voluntary

departure expires prior to a decision on the motion. The draconian rule proposed by the majority deprives an applicant of an opportunity to be heard on

his or her timely application, and leads to many unfortunate consequences

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inconsistent with due process. The majority’s interpretation is neither fair nor

necessary. It is inconsistent with the regulations, as will be discussed below.

There are many instances where the majority’s overbroad interpretation of

section 242B(e)(2) would unfairly deprive an applicant of an opportunity to

be heard on a timely application. The applicant seeking reopening has no

control of when the motion is finally considered, and delay in the

adjudication process should not pretermit eligibility for relief on an

applicant’s timely motion to reopen. Also, under the majority’s interpretation

of section 242B(e)(2), this Board’s appellate review over motions under

8 C.F.R. §§ 3.1(b)(2) and (c) (1995) would be effectively precluded since the

period of voluntary departure would undoubtedly expire before appellate

review of a denied motion is completed. See 8 C.F.R. §§ 3.3, 3.5, 3.7

(1995). Such unfettered discretion without effective appellate review does

not promote judicial efficiency, and it is not consistent with fundamental

fairness.

The majority’s approach also does not take into account the extensive

travel requirements of many Immigration Judges who participate in the

institutional hearing program for criminal aliens prescribed by section 242A

of the Act, 8 U.S.C. § 1252a (1994). A timely motion may lay unadjudicated

for weeks awaiting the return of the Immigration Judge who has appropriate

jurisdiction under 8 C.F.R. §§ 3.23(b) and 242.22 (1995). A motion to reopen

filed in compliance with the regulations by a deserving applicant would be

precluded if such travel delays the Immigration Judge’s ability to address the

motion until after the period of voluntary departure has expired. Such a result

is not compelled by the statute, as detailed in the dissenting opinion of Board

Member Guendelsberger, in which I concur. As explained by Board Member

Guendelsberger, this determination of eligibility can and should consider the

relevant facts existing when the motion to reopen is filed. I also concur in the

dissent by Chairman Schmidt that there are exceptional circumstances

present here. However, I reach the same result without relying on the

exceptional circumstances provision.

Initially, I note that the statute in question, section 242B(e)(2), speaks of

ineligibility for relief from deportation for those aliens who fail to depart

voluntarily by their scheduled date of departure, leaving the possibility that

those applicants whose date of voluntary departure is rescheduled may retain

or regain their eligibility.1 The majority recognizes that the district director

can reinstate or grant an extension of the voluntary departure period pending

consideration of the motion by the Immigration Judge. However, the

majority fails to acknowledge that the Immigration Judge can also reinstate

voluntary departure in a deportation proceeding reopened for a purpose other

1 Compare sections 243(h)(2) and 245(c) of the Act, 8 U.S.C. §§ 1253(h)(2) and 1255(c)

(1994), which specifically preclude relief from deportation to specified aliens regardless of

eligibility.

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than solely making an application for voluntary departure and thereby restore

eligibility for relief from deportation. See Matter of Yeung, 13 I&N Dec. 528

(BIA 1970); 8 C.F.R. § 244.2 (1994).

It has long been recognized by the Attorney General that pursuant to

8 C.F.R. § 3.1(d) “it is a basic concept of the Board’s appellate jurisdiction

that it must do complete justice for the alien in a given case, and, therefore,

must take any action necessary to dispose of the particular case.” Matter of

S-N-, 6 I&N Dec. 73, 75 (BIA, A.G. 1954); accord Matter Vrettakos, 14 I&N

Dec. 593, 597 (BIA 1973, 1974), and cases cited therein (nunc pro tunc permission to reapply for admission eliminating ineligibility for relief). A determination of eligibility for relief is properly made after a factual hearing

which may require reopening of the proceedings to consider all material evidence. It should not depend solely on the discretion of the Immigration and

Naturalization Service, which is the opposing party in deportation proceedings.2 Surely an Immigration Judge can do complete justice under 8 C.F.R.

§ 3.1(d) by reopening proceedings and reinstating voluntary departure pursuant to 8 C.F.R. § 244.2 in appropriate cases when the timely motion to

reopen was not adjudicated prior to the expiration of the period of voluntary

departure.

The majority’s interpretation of the statute necessarily requires that an

alien abandon his or her application for relief from deportation to avoid being

precluded from obtaining such relief. It is well settled that a departure from

the United States pursuant to a grant of voluntary departure breaks the continuity of physical presence for purposes of eligibility for suspension of deportation. Matter of Barragan, 13 I&N Dec. 759 (S.I.O., BIA 1971). Such an

inflexible interpretation is unnecessary when analogous sections of the same

statute specifically addressing motions to reopen to seek relief from deportation based on eligibility that arises after completion of the deportation proceedings allow for an alternate resolution.

To ascertain the plain meaning of a statute it is proper to look not only at

the particular statutory language at issue, but also at the language and design

of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988). Moreover, the Supreme Court has long held that doubts as to the

proper construction of sections of the Act such as the one before us “should

be resolved in favor of the alien due to the potentially drastic consequences of

deportation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Costello v.

INS, 376 U.S. 120, 128 (1964); Barber v. Gonzalez, 347 U.S. 637, 642-43

(1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); accord Matter of

Farias, 21 I&N Dec. 269 (BIA 1996). Consequently, we should look at the

entire statutory scheme of section 242B, including the newly promulgated

2 This case also illustrates the pitfalls of commingling the functions of prosecutor and

adjudicator. This practice has been described as fundamentally unfair. See Schweicker v.

McClure, 456 U.S. 188, 195 (1992).

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regulations addressing motions to reopen in accordance with the congressional directive when enacting section 242B.

Section 242B(e)(2) of the Act was enacted by section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061-65 (enacted

Nov. 29, 1990) (“IMMACT 90"). It was part of a comprehensive plan to

address the continuing problem of aliens who did not appear at their scheduled immigration proceedings or absconded when their deportation was

imminent. See Stone v. INS, 514 U.S. 386, 399 (1995).

Sections 242B(c) and (e) specifically address an alien’s failure to appear

as required under the Act. Section 242B(c) of the Act prescribes a streamlined procedure for in absentia deportation orders and their appellate review.

Section 242B(e) specifies the other immigration matters where a failure to

appear or otherwise comply would trigger preclusion from relief from deportation, notice requirements, and the specific forms of relief from deportation

from which the aliens would be precluded. See Matter of Powell, 21 I&N

Dec. 81 (BIA 1995).

NEW MOTION TO REOPEN REGULATIONS

IMMACT 90 specifically addressed motions to reopen by adding section

242B(c)(3) to the Act. Section 545(a) of IMMACT 90, 104 Stat. at 5061,

5063, as amended by section 306(b)(6) of the Miscellaneous and Technical

Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232,

105 Stat. 1733, 1753 (enacted Dec. 12, 1991) (effective as if included in the

Immigration Act of 1990). Section 242B(c)(3) requires that a motion to

reopen and rescind must be filed within 180 days of an in absentia deportation order, if the alien is relying upon exceptional circumstances for failing to

appear in order to rescind that order when the alien had received proper

notice and was not in federal or state custody causing his failure to appear.

Section 545(d) of IMMACT 90, 104 Stat. at 5066, also directed the Attorney

General to issue regulations limiting the number of motions to reopen seeking relief from deportation and the maximum time period during which a

motion to reopen seeking relief from deportation my be submitted. Congress

specifically directed the Attorney General, in developing these regulations,

to consider exceptions in the interest of justice. See H.R. Conf. Rep. No. 955,

101st Cong., 2d Sess. 133 (1990), reprinted in 1990 U.S.C.C.A.N. 6784,

6798.

After extensive review and comment, the Attorney General issued such

regulations on April 29, 1996, effective July 1, 1996. 61 Fed. Reg. 18,900

(1996). These regulations address both motions arising from in absentia proceedings and other motions to reopen. Pursuant to the new regulations, with

some exceptions not relevant here, an alien may file only one motion to

reopen seeking such relief from deportation. That motion must be filed no

later than 90 days after the date on which the final administrative decision

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was rendered in the proceeding sought to be reopened or within 90 days of the

effective date of the final rule, whichever is later. 61 Fed. Reg. 18,908 (1996)

(to be codified at 8 C.F.R. § 3.23(b)(4)(i)). Also, the motion to reopen cannot

be granted if the alien previously had an adequate opportunity to apply for the

relief sought, unless such relief is sought on the basis of circumstances arising subsequent to the hearing. 61 Fed. Reg. 18,908 (1996) (to be codified at

8 C.F.R. § 3.23(b)(4)).

The purpose of these newly promulgated limitations on motions to reopen

is to promote finality in deportation cases and thereby increase judicial efficiency in accordance with the directive of the Conference Report for

IMMACT 90. Although these more stringent regulations were finalized subsequent to the denial of reopening in this case, they are useful in interpreting

the statutory scheme prescribed for motions to reopen for relief from deportation based on eligibility arising after the Immigration Judge’s decision.

Unlike the majority’s interpretation, the new regulations preserve an opportunity to be heard on a timely motion. There is no indication in the legislative

history of IMMACT 90 that Congress intended the Immigration Judges or

the Board to deny a timely, and otherwise grantable motion, merely because

the passage of time during the adjudication process purportedly would

invoke the section 242B(e)(2) bar. A timely motion in compliance with the

regulation should be heard on its merits.

This interpretation of the preclusive effect of section 242B(e)(2) of the Act

in the context of a motion to reopen is more reasonable than the majority’s

alternative when read in pari materia with the language in the same statute

specifically addressing motions to reopen. It provides for both an opportunity

to be heard in a timely application as well as specific notice of the procedures

required to obtain such an opportunity to be heard.

It is fundamentally wrong to refuse to consider a timely application

because the decision maker has not yet reached a decision. As the Supreme

Court stated in Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), in

interpreting statutory language, “settled expectations should not be lightly

disrupted.” The normal expectation of an applicant who submits a timely

application is that the application will be heard.

It is also more consistent with the legislative history which included a

congressional directive to consider exceptions in the interest of justice, as

discussed above.3 Since the Immigration Judge can reinstate voluntary

departure in reopened proceedings, the date the motion is filed is better than

the date when the Immigration Judge decides the motion for determining

whether section 242B(e)(2) precludes reopening. Our precedents provide

3 The Service’s discretionary powers to pursue the execution of a final deportation order is

also not affected, since there is no automatic stay of deportation required upon the mere filing of

such a motion to reopen or appeal from its denial. See 8 C.F.R. § 242.22. Either the Immigration

Judge or the Board would have to stay a deportation order pursuant to 8 C.F.R. §§ 242.23 or

3.6(b) (1995), respectively.

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sufficient guidelines for the use of discretion when considering motions to

reopen that comply with the regulations. See Matter of Coelho, 20 I&N Dec.

464 (BIA 1992), and cases cited therein.4

Consequently, there is no need to adopt an overbroad interpretation of section 242B(e)(2) in order to meet the congressional directive to promote finality in deportation cases.5

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

It is neither prudent nor reasonable to pull out an elephant gun to kill a fly.

Nor is it reasonable or necessary to foreclose applying for or obtaining lawful

status either here or abroad to otherwise qualified applicants by invoking the

most stringent interpretation possible of a statutory provision subject to more

than one construction.

There is little dispute among the members of this Board that the statutory

language determines our analysis and implementation of any provision

enacted by Congress. Where the language is plain we must accord its

unequivocal meaning, and “that is the end of the matter.” Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

Where the language is not plain, an agency’s reasonable interpretation, even

among other reasonable interpretations, is entitled to deference by a reviewing court. However, a reasonable interpretation must adhere to relevant principles of statutory construction, as well as to the attendant factual

circumstances requiring its application, or it cannot be termed reasonable.

At issue here is the interpretation and application of section 242B(e)(2)(A)

of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (1994).

Literally, it addresses failure to depart voluntarily by those afforded that privilege. Practically, it forecloses access to certain forms of discretionary relief

from deportation. Section 242B(e)(5) of the Act. The means to apply for such

forms of relief is through a motion to reopen. 8 C.F.R. § 3.2 (1995). Thus,

4 As pointed out by Chairman Schmidt, under a totality test, the failure to adjudicate a timely

motion prior to the scheduled date of departure can be reasonably interpreted as an exceptional

circumstance beyond the control of the alien under section 242B. See Romero-Morales v. INS,

25 F.3d 125 (2d Cir. 1994) (totality test prescribed for determining whether the failure to appear

at a deportation hearing when a request for a change of venue was pending constitutes

exceptional circumstances under section 242B). The discretionary authority prescribed by 8

C.F.R. §§ 3.1(b)(2) and 242.22 allows a more flexible procedure for addressing such

exceptional circumstances than the draconian rule adopted by the majority in this case.

5 Although we do not rule on the constitutionality of the statutes we administer, we should

interpret statutes to avoid unconstitutional applications. The majority’s interpretation allows

for Immigration Judges arbitrarily to decline to adjudicate timely motions without meaningful

appellate review. As stated by the Supreme Court, an alien should not be “deported without

giving him all opportunity to be heard upon the questions involving his right to be and remain in

the United States. No such arbitrary power can exist where the principles involved in due

process of law are recognized.” Yamataya v. Fisher, 189 U.S. 86, 101 (1903).

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abuses of voluntary departure and considerations pertaining to motions to

reopen are inexorably connected.

I. THE STATUTE IS AMBIGUOUS IN ITS TERMS AND ITS

APPLICATION

The majority contends that the statutory language is plain on its face and

not ambiguous: persons who remain after a period of voluntary departure are

barred from seeking or being granted relief from deportation for a period of 5

years. I disagree.

The terms of the statutory provision are not plain. They are silent. They do

not address the circumstances such as exist here, in which an applicant has

filed a timely motion to reopen for discretionary relief during a period of voluntary departure, but that application is not adjudicated prior to expiration of

the voluntary departure period. Had Congress wished to foreclose all motions

to reopen, it could have done so and did not. Had Congress wished to impose

a showing of “exceptional circumstances” as a prerequisite to consideration

of all motions to reopen, it could have done so and did not.

As discussed by Board Member Guendelsberger in his dissenting opinion,

with which I concur, the majority has erroneously framed the issue in order to

accommodate the limited statutory language, allowing them to conclude that

the language is plain. Nonetheless, we cannot ignore the precise question

raised by the case before us, and that question is not addressed or resolved by

simply concluding the language is plain without regard to the context of this

case. Moreover, the statutory language does not exist out of context of the

statute as a whole and is not exempt from principles of statutory construction.

II. THE LEGISLATIVE HISTORY DOES NOT DEMAND OR

WARRANT AN ABSOLUTE BAR

A. Legitimate Desire to Bring Proceedings To a Close

The first principle of statutory interpretation pertinent here is that when

the statutory language is not plain, the intent of Congress, determined from

legislative history, should be addressed and given effect. The overriding

objective of Congress in enacting section 545 of the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061-67 (“IMMACT 90"), was to

bring aliens to their hearings, and to achieve prompt determinations and closure in the cases of deportable aliens. See generally Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the

Immigration and Nationality Act, 30 San Diego L. Rev. 75, part II. B. (1993)

(noting that S. 358 Conference Committee report incorporated certain previously excluded enforcement provisions to ensure that aliens were properly

notified and in fact would appear for their hearings).

As discussed by Chairman Schmidt in his dissenting opinion, it is generally accepted that the statute is intended to promote finality in deportation

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determinations. There is not agreement, however, about whether the intent of

Congress was to foreclose all relief from deportation from deserving applicants who had accepted voluntary departure. Further, neither the statutory

language nor the legislative history supports an interpretation which renders

section 242B(e)(2)(A) a provision which vilifies aliens who seek to reopen

their hearings to seek relief for which they were unable to apply previously

for a variety of legitimate reasons.

While section 242B(e)(2)(A) may preclude relief in many cases, and in

that way penalize those who do not depart in compliance with a period of voluntary departure extended by an Immigration Judge, we are not compelled to

interpret the statute as being without room for reopening in cases in which a

period of voluntary departure has passed before action has been taken on a

motion filed during the voluntary departure period. Indeed, it is far more consistent with legislative intent and the statute itself to settle upon an interpretation which accommodates the realities of an Immigration Judge’s calendar

and his or her existing powers under the regulations, and reasonably takes

into account other practical factors outside the applicant’s control and

humanitarian considerations, such as those discussed by Board Member

Villageliu.

B. No Intent to Foreclose All Motions to Reopen

In the instant circumstances, both the legislative history and the statute

itself, discussed below, reflect that Congress was not certain whether and to

what extent motions to reopen were the object of abuse or contributed to

delay in bringing deportation proceedings to a close. Indeed, in IMMACT 90,

Congress mandated that the Attorney General conduct a study to determine

this question.1 The results of this study, not addressed by the majority, reflect

both the fruits of the legislative intent to inquire about the process, and the

findings of the Department of Justice. Neither supports the interpretation

adopted by the majority in this case.

In the Attorney General’s Report to Congress on Consolidation of

Requests for Relief from Deportation (“Report”), submitted in 1991, the

Department of Justice addressed then current safeguards which prevent

abuses flowing from an alien’s failure to consolidate applications for relief,2

as well as statistical information which would define the potential parameters

of any problem. In addition, the Department surveyed a cross section of

1 In IMMACT 90, Congress raised concerns that deportable aliens might be attempting to

prolong their stays in the United States by filing numerous, consecutive motions to reopen in

order to apply for various forms of discretionary relief. To ascertain whether these concerns had

any basis in reality, Congress mandated that the Attorney General submit to it a report on

perceived “abuses” with regard to consolidation of requests for relief. Section 545(c) of

IMMACT 90, 104 Stat. at 5065-66.

2 Consolidation of applications for relief necessarily implies motions to reopen and

reconsider, as failure to so consolidate would lead to an excessive or unreasonable number of

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Immigration Judges to determine whether the kinds of potential abuses considered in section 545(c) of IMMACT 90, 104 Stat. at 5065-66, were widespread and significant.

The Report found explicitly that the statute, regulations, and case law all

provide ample protection against failing to file consolidated requests for

relief. In fact, the report found that the number of cases in which aliens file

multiple applications for relief or motions to reopen comprise less than five

percent of the total caseload and that this “clearly establishes a low possibility of abuse.”3

The Report noted that “perhaps most persuasively, a cross section of

immigration judges, those who deal with the deportation cases day-to-day,

indicates there is no evidence of aliens abusing of the system.” The surveyed

Immigration Judges indicated that current case law, regulations, and the

sound discretion of the Immigration Judge discourage and eliminate the possibility of abuse, reads the Report, stating, “They simply had not experienced

a problem in this area.” Further, the Report notes that the Immigration Judges

indicated that most who file subsequent applications for relief do so based on

alleged changed circumstances and new evidence, and that if the evidence

could have been presented at an earlier hearing, the motion would be denied.

Legitimate concerns with failure to depart voluntarily by those accorded

that privilege should not be confused with the standards we use to entertain or

determine motions to reopen. The Report submitted by the Attorney General

pursuant to section 545(c) of IMMACT 90 found no abuses with regard to

motions to reopen. As the Attorney General found, “[T]he department’s conclusion is that there is no pattern of abuse by aliens who fail to consolidate

their applications for relief. Current procedures, regulations and case law

contain restrictions to guard against such abuses.” Today, we have not only

the assurances generated by the study, but an entirely new and more restrictive set of regulations governing motions to reopen effective July 1, 1996.

III. MEANINGFUL EFFECT MUST BE GIVEN TO

STATUTORY PROVISIONS

The second principle of interpretation relevant to our resolution of this

issue is that a statute should be construed to give meaningful effect to each of

its parts. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding

that a construction of the statutory language which takes into account the

design of the statute as a whole is proper); see also COIT Independence Joint

such motions. Further, the report specifically considered motions to reopen as indicated by its

statement that the “cases in which motions to reopen are filed constitute an extremely low

percentage of the total case load.”

3 The Report states, for example, that of 106,150 deportation cases filed in 1990, only 2,474

had motions to reopen filed and only 932 involved multiple applications for relief. See 68

Interpreter Releases, No. 27, July 22, 1991, at p. 907-08.

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Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989) (“whole

statute” interpretation dictates that statutory sections should be read in harmony to achieve a harmonious whole).

Litanies about motions to reopen not being preferred pale in the face of the

Supreme Court’s plain recognition that Congress intended motions to reopen

to lie in appropriate cases. Stone v. INS, 514 U.S. 386 (1995). Compare also

section 106(a)(6) of the Act, 8 U.S.C. § 1105a(a)(6) (1994), as amended by

section 545(b)(3) of IMMACT 90, 104 Stat. at 5065, effective to deportation

orders entered after January 1, 1991, clearly contemplating the existence of

motions to reopen. As discussed above, there has been no finding either by

Congress or by the Department of Justice that a more harsh and restrictive

standard or mechanism was necessary to limit or foreclose motions to reopen.

Moreover, enforcement of voluntary departure, or enforcement of deportation orders against abusers of voluntary departure is not best achieved by

denying motions to reopen by legitimate applicants. It is true that the general

principle that litigation should be brought to a close may be effectuated

through strict application of the provisions found in section 242B(e), but that

does not make every applicant seeking to reopen his or her case to apply for

and be granted legitimate status an abuser of the process. Indeed, it is those

who never depart or reappear to submit motions to reopen who most abuse

the practice of permitting voluntary departure in lieu of deportation.

While the statute does expressly provide that “exceptional circumstances”

must be demonstrated in cases in which an applicant remains beyond the

period of voluntary departure allowed, the statute does not require exceptional circumstances to be demonstrated in all cases in which a motion to

reopen is sought. Rather, 8 C.F.R. § 3.2 specifies the general requirements

for motions to reopen. The statute does not squarely address the situation in

which an applicant files a motion to reopen following the hearing and within

the period of voluntary departure. To treat all motions to reopen not adjudicated within the voluntary departure period as foreclosed, without regard to

the time or circumstances of filing, in the absence of a statutory showing of

“exceptional circumstances” not less compelling than serious illness or death

of a family member, is, in my view, arbitrary and contrary to the terms of the

statute. Yet, that is the effect of the majority holding. It is not only erroneous, but unnecessary to meet the legislative objective and achieve compliance with the statutory terms.

IV. CONSTRUCTION OF DEPORTATION STATUTES

SHOULD FAVOR THE ALIEN

The final principle of construction is that, as deportation statutes have a

harsh, often seemingly punitive effect upon an applicant and his family,

when ambiguous, they should be construed in favor of the alien. The statute

leaves significant room for the agency to determine not only “exceptional

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circumstances,” but other parameters related to the statutory bar against eligibility for relief from deportation.4

The circuit courts of appeals which have addressed issues arising under

section 242B have indicated a concern with a narrow, literal reading of the in

absentia provisions, see, e.g., Romero-Morales v. INS, 25 F.3d 125 (2d Cir.

1994), and most likely would affirm an approach which gives effect to the

statute without inordinately burdening either the alien or the hearing process.

While in that case, the United States Court of Appeals for the Second Circuit

addressed specifically a motion for change of venue, there is no reason to

conclude that such an approach is not equally appropriate with respect to

other procedural matters affecting the handling of other cases. See also Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) (Rosenberg, concurring and dissenting in part). The notion that hearings are preferred in the interests of due

process is one that is rudimentary in cases arising before the Ninth Circuit.

See Baires v. INS, 856 F.2d 89 (9th Cir. 1988).

The essence of motions to reopen is that they are requests for discretionary

action to fairly and justly resolve cases. Discretionary provisions suggest

individual consideration, not blanket prohibitions, unless absolutely mandated. Here, admittedly, the statute requires that relief be foreclosed when an

alien remains beyond a designated voluntary departure date unless exceptional circumstances are demonstrated. But the statute does not compel

denial of all motions to reopen which are filed in a timely fashion when the

discretionary relief sought is not foreclosed by statute. Nonetheless, the

majority insists upon selecting the most stringent, ungiving interpretation

and application of the statute.

The principle that deportation statutes should be construed in the alien’s

favor is a longstanding one, recognized, adopted, and reiterated by this

Board. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Fong Haw Tan v.

Phelan, 333 U.S. 6 (1948); see also Matter of Hou, 20 I&N Dec. 513, 520

(BIA 1992); Matter of Tiwari, 19 I&N Dec. 875, 881 (BIA 1989) (lingering

ambiguities regarding construction of the Act are to be resolved in the alien’s

favor).

The majority departs from this principle without explanation or reason. As

such, I cannot agree that the result reached by the majority in this case is

either rational or required. Consequently, I join the with my four other dissenting colleagues and I, too, dissent.

4 I note that, as Chairman Schmidt discusses, the legislative history with respect to

determinations of exceptional circumstances reflects that a “totality of the circumstances”

approach was appropriate. Certainly, no less a comprehensive approach should be employed in

determining whether the applicant is foreclosed from an adjudication on a timely filed motion

to reopen before the “exceptional circumstances” requirement is imposed.

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DISSENTING OPINION: John W. Guendelsberger, Board Member;

in which Lauren R. Mathon, Board Member, joined.

I respectfully dissent.

This case requires us to interpret and apply a provision of section 242B of

the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), which bars

aliens who remain beyond the period authorized for voluntary departure from

specified forms of discretionary relief from deportation. The majority reads

section 242B to preclude the specified forms of relief to anyone who remains

beyond the voluntary departure time unless he or she can meet the “exceptional circumstances” requirement in the statute. The majority finds no

exceptional circumstances under the facts in this case and, therefore, denies

relief.

I concur in the dissent of Chairman Schmidt finding exceptional circumstances in this case. However, I write separately because I believe we can

reach the same result without the need to reach the exceptional circumstances

issue. I also concur in the dissents of Board Members Villageliu and

Rosenberg.

Section 242B was enacted as part of the Immigration Act of 1990, Pub. L.

No. 101-649, 104 Stat. 4978, a comprehensive immigration reform package

which included provisions intended to redress the problem of successive and

frivolous administrative motions and appeals. The threshold issue in this case

concerns the breadth of the statutory bar to relief for persons granted voluntary departure.

In considering the interplay of motions to reopen and voluntary departure,

there are two quite distinct groups of movants: (1) those who become eligible

for and who pursue relief during the voluntary departure period; and (2) those

who remained beyond the voluntary departure period in order to accrue eligibility. Those in the former group pursue relief which accrues during a period

of stay authorized by the Immigration and Naturalization Service. Those in

the latter group, except in exceptional circumstances, abuse the process and

show particular disdain for the law by remaining beyond the period authorized for voluntary departure.

It is difficult to believe that Congress would impose the same penalty upon

the members of these distinctly situated groups. A close examination of the

statutory language indicates that it was meant to bar relief only to movants

who accrue eligibility after the expiration of voluntary departure.

As discussed below, there are important reasons related to statutory interpretation, justice, fairness, and practicality which auger in favor of an interpretation which focuses upon “eligibility” as of the time a motion to reopen is

filed.

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I. FACTS

The respondents entered the United States on nonimmigrant visas on July

17, 1987. They were found deportable as overstays on August 19, 1993, and

were granted voluntary departure until April 30, 1994, later extended until

October 21, 1994. Prior to the expiration of their voluntary departure time,

the respondents filed a motion to reopen to apply for suspension of deportation. Along with their motion they filed completed applications for suspension of deportation and supporting documentation demonstrating prima facie

eligibility for such relief.

On December 2, 1994, the Immigration Judge denied their motion to

reopen without reaching the issue of prima facie eligibility. Instead, he found

that since the voluntary departure time had elapsed and no exceptional circumstances had been shown, suspension of deportation was barred by section

242B(e)(2)(A).

II. FRAMING THE ISSUE

This is a case in which the framing of the issue largely affects the outcome.

The majority poses the issue as follows:

Whether the expiration of the period of voluntary departure while a motion to reopen is

pending renders a respondent statutorily ineligible for suspension of deportation pursuant to

section 242B(e)(2)(A)?

The majority omits a key factual component in this statement of the issue,

i.e., that the respondents became eligible for suspension of deportation prior

to expiration of the period of voluntary departure. By omitting this fact, the

majority merges two distinctly different groups: (1) those who became eligible for relief or filed a motion to reopen for relief after expiration of the

period of voluntary departure, and (2) those who became eligible for relief

and filed a motion to reopen during the period of voluntary departure. The

critical issue in this case is whether Congress intended to penalize the latter

group under section 242B(e)(2).1

When framed in this manner, the language of section 242B(e)(2) does not

provide a clear answer. First of all, the statute contains no provision

1 The

Amicus Curiae Brief filed by the American Immigration Lawyers Association

(“AILA”) frames the issue in terms of “tolling”: Whether the filing of a nonfrivolous motion to

reopen, prior to the expiration of the period of voluntary departure, tolls expiration of the period

of voluntary departure.

I avoid the term "tolling" because it suggests a suspension or temporary stop in the running

of voluntary departure time. See Black's Law Dictionary 1334 (5th ed. 1979). I do not believe

that filing a motion to reopen "tolls" the running of the period of voluntary departure.

While voluntary departure time continues to run, and may expire before the Immigration

Judge renders a decision, the issue here is at what point in time the Immigration Judge should

focus in assessing prima facie eligibility. I find that the Immigration Judge should focus on

prima facie eligibility on the date the motion to reopen was filed. The majority assumes that the

Immigration Judge should focus on the date the decision is made.

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concerning the effect of the filing of a motion to reopen during the period

allowed for voluntary departure. Secondly, the statute contains no instruction

as to the situation in which eligibility accrued prior to the date scheduled for

departure.

To the extent that the statutory language fails to provide clear answers to

these questions, we must construe the language in the sense most favorable to

the respondents. INS v. Errico, 385 U.S. 214 (1966) (stating that matters of

doubt should be resolved in favor of the alien in deportation proceedings);

see also Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).

III. APPLYING THE STATUTORY LANGUAGE

Section 242B(e)(2)(A) provides that

any alien allowed to depart voluntarily . . . who remains in the United States after the scheduled date of departure, other than because of exceptional circumstances, shall not be eligible

for relief described in paragraph (5) for a period of 5 years after the scheduled date of departure or the date of unlawful entry, respectively. (Emphasis added.)

In its analysis, the majority avoids the threshold question: Should the Immigration Judge, in considering a motion to reopen deportation proceedings,

focus upon eligibility at the time of filing of the motion to reopen or at the

time of the decision on the motion?

A reasonable interpretation of the statutory language is that the Immigration Judge should focus upon eligibility at the time that the motion for

reopning was filed. Eligibility may not be acquired “after the scheduled date

of departure.” Such an interpretation is consistent with the goals of section

242B. It prevents abuse of the motions process by barring relief to those who

fail to file a motion to reopen prior to the expiration of the voluntary departure time. It would also bar relief to those who file a motion to reopen which

is frivolous or which has failed to establish a prima facie case for relief as of

the time of filing.

The majority ruling is neither fair nor rational because results may depend

upon the Immigration Judge’s calendar or travel schedule at the time the

motion is filed.

The unfairness and irrationality of such a system is illustrated by considering the situation of two aliens, identically situated, each of whom is granted

90 days’ voluntary departure on March 1, 1996. Suppose that both aliens

become eligible for adjustment of status based on immediate relative petitions approved on April 15, 1996. One files a motion to reopen with required

documents on April 16, 1996, but the Immigration Judge fails to reach a decision on the motion until June 15, 1996. The other files an equivalent motion

on May 16, 1996, and the Immigration Judge grants the motion to reopen a

week later. Under the majority’s interpretation of section 242B(e)(2)(A), the

first alien, who acted most diligently in filing the motion to reopen, would be

barred from relief, while the second alien, who delayed until near the end of

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the voluntary departure period would have the opportunity to have the application adjudicated before an Immigration Judge. Not only would the first

alien be denied adjustment, he would also lose the benefit of voluntary departure and be subject to the 5-year bar from reentering the United States.

Justice cannot be accomplished under a system in which results will vary

based upon docket control in the various offices of the Immigration Judges.

Whether the Immigration Judge decided the motion prior to expiration of

voluntary departure time is largely fortuitous. The results in the decisions on

such motions would have little to do with the merits of the cases, but instead

might turn upon irrelevant factors related to the timing of the Immigration

Judge’s decision.

Congress could not have intended a construction which produces such disparate and illogical results. Under the majority holding, section 242B would

be applied in an arbitrary, uneven, and impractical manner, violating due process and equal protection of the laws. This Board is required to construe section 242B to avoid a statutory scheme which would lead to an

unconstitutional application of the laws. See Yeung v. INS, 76 F.3d 337 (11th

Cir. 1995); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).

The focus upon the date of filing of the motion to reopen also comports

with a common sense approach to this issue and an approach which mirrors

Service procedures in similar situations. It has long been understood that

adjustment of status, extensions or changes in nonimmigrant status, extension of stay requests and change of status requests, to mention just a few

examples, can be granted after expiration of the initial period of time, so long

as requests are submitted to the Service prior to the expiration of the original

time. See, e.g., 8 C.F.R. § 248.1 (1995) (alien may be granted change in

nonimmigrant status after expiration of status so long as application was filed

prior to expiration of status); 8 C.F.R. § 245.1 (1995) (alien may be granted

adjustment of status after expiration of lawful immigration status so long as

application was filed prior to expiration of status.)

In fact, as pointed out in Board Member Villageliu’s dissent, the regulations governing deportation proceedings expressly authorize extensions of

voluntary departure. 8 C.F.R. § 244.2 (1995). This provision of the regulations authorizes an Immigration Judge or this Board to “reinstate voluntary

departure in a deportation proceeding that has been reopened for a purpose

other than solely making an application for voluntary departure.” Id. Thus,

the regulations specifically provide that an Immigration Judge may grant voluntary departure, even if it has expired, if the respondent files a motion to

reopen seeking relief other than voluntary departure. Therefore, if an individual files a motion to reopen seeking suspension of deportation prior to the

expiration of the period of voluntary departure, the Immigration Judge is

authorized not only to grant the motion to reopen, but also to grant the individual an extension of voluntary departure nunc pro tunc.

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The significance of this regulation is that it supports an interpretation of

section 242B which distinguishes between those who become eligible for

relief during the period of voluntary departure and those who become eligible

for such relief after the expiration of the period of voluntary departure. Interpreting section 242B to create an absolute bar to eligibility for suspension

simply because the period for voluntary departure has expired while a motion

to reopen was pending would lead to unreasonable and unfortunate results.

In summary, there are a number of reasons for interpreting the statute in a

manner which penalizes only those who seek relief for which they became

eligible after the expiration of voluntary departure. First, such an approach

promotes the like treatment of similarly situated persons and avoids a construction leading to substantive due process and equal protection challenges.

Second, it is consistent with the Service’s approach to adjudicating applications for extensions or changes in status which are filed prior to expiration of

status. Third, the broad sweep of the construction proposed by the majority is

unnecessary to accomplish Congress’ goal to limit relief for those granted

voluntary departure. This goal would be largely accomplished by denial of

relief to the true abusers, those who have no claim for relief but remain

beyond the voluntary departure date.

Finally, the result proposed by the majority presents the alien who

acquires eligibility for relief during the period of voluntary departure with a

dilemma. The alien is forced to make a decision concerning two unpredictable variables. First, would the Service grant an extension of voluntary

departure if requested and for how long? Second, will the Immigration Judge

make a decision on the motion to reopen within the original or extended

period of voluntary departure? The regulations permit the district director to

extend voluntary departure but provide no guidelines for the exercise of that

discretion. Whether an alien loses eligibility for relief should not turn upon

the administrative fiat of the district director. Nor, as discussed above,

should it turn on the ability of the Immigration Judge to rule on the motion.

IV. CONCLUSION

For the foregoing reasons, I respectfully dissent. I would reverse the decision below and remand this case with instructions that the Immigration Judge

determine prima facie eligibility for suspension of deportation as of the date

the motion for reopening was filed.

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