852 F.2d 1088 (9th Cir. 1988), 85-7392, Contreras-Aragon v. I.N.S.

Docket Nº:85-7392.
Citation:852 F.2d 1088
Case Date:July 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1088

852 F.2d 1088 (9th Cir. 1988)

Rene Adan CONTRERAS-ARAGON, Petitioner,



No. 85-7392.

Argued En Banc and Submitted

United States Court of Appeals, Ninth Circuit

July 15, 1988

June 16, 1987.

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Rosemary J. Esparza, Centro De Asuntos Migratorios, Chula Vista, Cal., for petitioner.

James A. Hunolt, Office of Immigration Litigation, Civil Div., Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.


HUG, Circuit Judge:

We took this case en banc to resolve an issue concerning the effect of affirming an order of deportation that also provides for voluntary departure. The Board of Immigration Appeals ("BIA") found Contreras-Aragon deportable and granted the alternative discretionary relief of 30 days' voluntary departure. A panel of our court affirmed the order of the BIA, but held that the voluntary departure period allowed by the BIA had expired and was no longer available to Contreras-Aragon. We voted sua sponte to take the case en banc to determine whether the affirmance of the BIA order permitted Contreras-Aragon to voluntarily depart during the pendency of his petition and the 30-day period following the issuance of our mandate affirming the BIA. We hold that it does.


The panel's decision reversed a practice that we have followed for many years without objection by the Immigration and Naturalization Service ("INS"). The long-standing practice was to permit an alien afforded the right of voluntary departure by the BIA the opportunity to depart voluntarily until a fixed time after the issuance of our mandate affirming the order of deportation. More precisely, the period did not end until the number of days after the mandate equal to the number of days for voluntary departure set forth in the BIA's order. In some cases, we elucidated this practice in our opinions; in others, we merely assumed that the alien would be afforded this opportunity. The INS acknowledges that it has long followed the practice of allowing aliens originally granted voluntary departure to depart voluntarily until a fixed time after the issuance of our mandate. However, the INS maintains that it has followed this practice only when the alien filed a petition for review within the voluntary departure period originally granted. The INS concedes that it has never announced or published this limitation, nor has it communicated this limitation to aliens at the time of the deportation order and the grant of voluntary departure. The decisions of our court have never made this distinction.

The discretionary award of voluntary departure is significant for several reasons. First, it allows the alien to avoid the stigma of compulsory ejection. Second, it permits the alien to select his or her own destination. But, most importantly, the grant of voluntary departure facilitates the possibility of return to the United States. Tzantarmas v. United States, 402 F.2d 163, 165 n. 1 (9th Cir.1968), cert. denied, 394 U.S. 966, 89 S.Ct. 1312, 22 L.Ed.2d 569 (1969); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure Sec. 7.2a, at 7-19 (1987). An alien who voluntarily departs may return immediately, for example, as the beneficiary of an immigrant visa based on the marriage to a United States citizen. Conversely, a deported alien must seek special permission to return to the United States, see 8 U.S.C.A. Sec. 1182(a)(17) (West Supp.1987), and may face criminal penalties for the failure to do so, 8 U.S.C. Sec. 1326 (1982).


Petitioner, Contreras-Aragon, is a citizen of El Salvador who entered the United

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States on April 10, 1983. He was subsequently apprehended and charged with deportability for entry without inspection under 8 U.S.C. Sec. 1251(a)(2) (1982). At his deportation hearing, held June 14, 1983, petitioner conceded deportability; he also sought asylum (see 8 U.S.C. Sec. 1158(a) (1982)) and withholding of deportation (see 8 U.S.C. Sec. 1253(h) (1982)). The immigration judge ("IJ") denied both requests and ordered petitioner deported.

Petitioner appealed the ruling of the IJ to the BIA. On June 4, 1985, the BIA affirmed the IJ's decision, with the exception that it granted petitioner 30 days in which to voluntarily depart from the United States. See 8 U.S.C. Sec. 1254(e) (1982).

On July 15, 1985, Contreras-Aragon filed a petition for review of the BIA's decision with this court. July 15 fell within the six-month period for filing a petition for review prescribed by 8 U.S.C. Sec. 1105a(a)(1) (1982), but it was 41 days after the entry of the BIA's deportation order, which included the 30-day voluntary departure provision.

Contreras-Aragon's petition to this court challenged the BIA's denial of asylum and its refusal to withhold deportation. His petition also asked the court to "reinstate" the BIA's grant of voluntary departure in the event the court chose to affirm the BIA's deportation order.

The panel upheld the BIA's decision refusing to grant both asylum and withholding of deportation. Contreras-Aragon v. INS, 789 F.2d 777, 778 (9th Cir.1986). While we have serious reservations about that part of the decision, we do not reach the merits of those issues. 1 This en banc review focuses on the panel's refusal to "reinstate" the BIA's grant of voluntary departure or, viewed more accurately, its retroactive termination of the alien's right of voluntary departure. The panel refused to "reinstate" after concluding that the voluntary departure period had expired prior to the date of its decision.

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See Contreras-Aragon, 789 F.2d at 779. The panel implied that a voluntary departure period runs from the time the award is initially granted; it then expires and is unaffected by the alien's appeal of the deportation order. The holding conflicts with a line of Ninth Circuit cases in which this court has expressly provided that when timely review of the deportation order is sought the voluntary departure period originally granted by the BIA does not terminate until after the issuance of the mandate affirming the BIA. See Benitez-Mendez v. INS, 760 F.2d 907, 910 (9th Cir.1983) (as amended 1985); Abedi-Tajrishi v. INS, 752 F.2d 441, 444 (9th Cir.1985); Shahla v. INS, 749 F.2d 561, 563 (9th Cir.1984); De Reynoso v. INS, 627 F.2d 958, 960 (9th Cir.1980); Khalil v. INS, 457 F.2d 1276, 1278 (9th Cir.1972); accord Aiyadurai v. INS, 683 F.2d 1195, 1201 (8th Cir.1982).

The analysis for this result has not been clearly expressed, and there is some confusion concerning the operation of the voluntary departure provision in a deportation order. The use of the word "reinstate," with reference to voluntary departure originally granted by the BIA, creates part of the problem. As we view the matter, in affirming the order of the BIA, we affirm the order in total, including its grant of voluntary departure, the period for which does not expire until after the date the order of deportation becomes operative by the issuance of our mandate. We are not "reinstating" in the sense that we are exercising any discretion properly exercised by the BIA; rather, we are simply affirming the order of deportation with its provision for alternative discretionary relief.


Section 106(a) of the Act, 8 U.S.C. Sec. 1105a(a) (1982), provides for judicial review of final orders of deportation. It vests exclusive jurisdiction for such review in the courts of appeal. The Supreme Court has held that this jurisdiction extends to all matters decided in the course of a deportation proceeding, including determinations on requests for discretionary relief. Foti v. INS, 375 U.S. 217, 229, 232, 84 S.Ct. 306, 313, 315, 11 L.Ed.2d 281 (1963). The result of the deportation hearing, including the discretionary determinations, is one final order of deportation reviewable by the courts of appeals.

The hearings on deportability and on an application for discretionary relief have, as a matter of traditional uniform practice, been held in one proceeding before the same special inquiry officer, resulting in one final order of deportation.

Id. at 223, 84 S.Ct. at 310 (emphasis added). It is clear that a determination concerning voluntary departure is one of those determinations made during the deportation hearing that form a part of the final order of deportation, id. at 229, 84 S.Ct. at 313. The Court took special pains to point out that "determinations of deportability" are distinguished from the broader category of "final orders of deportation," which includes other determinations in the deportation proceedings. See id. at 228, 84 S.Ct. at 313. Thus, it is important to emphasize that we are here concerned with one final order of deportation that includes a determination concerning voluntary departure.

The jurisdictional section also provides for an automatic stay of deportation upon the filing of a petition for review. See 8 U.S.C. Sec. 1105a(a)(3) (1982). By providing an automatic stay, Congress eliminated the need for aliens to seek discretionary relief from deportation during the pendency of the petition for review in our court. We cannot conceive that Congress made such provision but intended to require aliens granted voluntary departure to seek repeated extensions of the voluntary departure period from the district director, in order to preserve the award of voluntary departure until our final determination on the deportation order. Rather it seems evident to us that the right of voluntary departure remains in effect throughout the period of our review and for whatever additional period the BIA afforded the alien in the order under review.

An unqualified affirmance of the order of deportation consequently entails...

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