Banda-Ortiz v. Gonzales, 04-61100.

• Decision Date: 28 March 2006
• Docket Number: No. 04-61100.,04-61100.
• Citation: 445 F.3d 387
• Parties: Sergio BANDA-ORTIZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

445 F.3d 387

Sergio BANDA-ORTIZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 04-61100.

United States Court of Appeals, Fifth Circuit.

March 28, 2006.

Sergio Banda-Ortiz, El Paso, TX, pro se.

Michelle E. Gorden Latour, U.S. Dept. of Justice, Thomas Ward Hussey, Dir., OIL, M. Jocelyn Lopez Wright, Civ. Div., Imm. Lit., U.S. Dept. of Justice, Washington, DC, Luis Garcia, U.S. INS, El Paso, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of a Final Order of Removal Entered by the Board of Immigration Appeals.

Before JOLLY, SMITH and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Sergio Banda-Ortiz petitions for review of an order of the Board of Immigration Appeals ("BIA") finding him statutorily ineligible for cancellation of removal.

I

Banda-Ortiz, a citizen of Mexico, entered the United States in 1989. In March 2000, the former Immigration and Naturalization Service ("INS") issued a Notice to Appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) as being present in the United States without being admitted or paroled. Banda-Ortiz conceded removability but applied for cancellation of removal, claiming that his departure would impose "exceptional and extremely unusual hardship," see 8 U.S.C. § 1229b(b)(1)(D), on his older son and adoptive parents, and in the alternative for voluntary departure. As a prerequisite to being granted voluntary departure, Banda-Ortiz was required to, inter alia, establish by clear and convincing evidence that he had the means and intent to depart from the United States. 8 U.S.C. § 1229c(b)(1)(D). The immigration judge ("IJ") denied cancellation of removal and granted Banda-Ortiz's request for voluntary departure.

Banda-Ortiz filed an appeal with the BIA. On August 22, 2002, the BIA affirmed and granted him thirty days to depart voluntarily.¹ Rather than departing, Banda-Ortiz moved to reopen his removal proceedings to introduce new evidence of hardship to his family that would result from his departure.² He did not accompany this motion with a request to stay removal, to toll the voluntary departure period, or to reinstate the voluntary departure period. The BIA nevertheless granted the motion to reopen and remanded to the IJ for consideration of Banda-Ortiz's new evidence in support of his application for cancellation of removal.

After a hearing, however, the IJ held that Banda-Ortiz was ineligible to apply for cancellation of removal pursuant to 8 U.S.C. § 1229c(d) (providing that an alien who fails to depart voluntarily as scheduled is ineligible for cancellation of removal) because even though he had filed his motion to reopen prior to the expiration of the voluntary departure period, he had failed to depart timely while that motion was pending. The BIA affirmed. It agreed that 8 U.S.C. § 1229c(d) rendered Banda-Ortiz ineligible for cancellation of removal, rejected Banda-Ortiz's argument that filing a motion to reopen tolls the voluntary departure period, and held that it (the BIA) had erred in initially granting the motion to reopen.

II

We have jurisdiction to review the BIA's denial of a motion to reopen under 8 U.S.C. § 1252. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005). We review for an abuse of discretion. Id.

This case concerns the interaction of several statutory provisions and an administrative regulation concerning voluntary departure and motions to reopen. With respect to voluntary departure, 8 U.S.C. § 1229c(a)(1) allows the Attorney General to permit an alien to voluntarily depart the United States at the alien's expense. "Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days." 8 U.S.C. § 1229c(b)(2). To ensure that aliens abide by their obligation to voluntarily depart, 8 U.S.C. § 1229c(d) provides:

If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, the alien

(A) shall be subject to a civil penalty of not less than $1,000 and not more than $5,000; and

(B) shall be ineligible, for a period of 10 years, to receive [cancellation of removal].

The statute concerning motions to reopen states, "An alien may file one motion to reopen proceedings." 8 U.S.C. § 1229a(c)(6)(A). That motion must be filed within ninety days of the date of the final administrative order. 8 U.S.C. § 1229a(c)(6)(C)(i). Finally, 8 C.F.R. §.1003.2(d), provides that "[a]ny departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion."

The BIA held that because he had overstayed his voluntary departure date, Banda-Ortiz was in violation of 8 U.S.C. § 1229c(d) and was ineligible for cancellation of removal. Despite the clarity with which the statute speaks and his undisputed failure to depart timely, Banda-Ortiz argues that he is eligible for cancellation of removal. He contends that the BIA is required to toll automatically the voluntary departure period during the pendency of a motion to reopen. According to Banda-Ortiz, the statute and regulation placed him in an "impossible situation" because, if he complied with the voluntary departure order and left the country, his motion to reopen would be deemed withdrawn pursuant to 8 C.F.R. § 1003.2(d). If he stayed, 8 U.S.C. § 1229c(d) would render him ineligible for cancellation of removal.

In support of his argument, Banda-Ortiz relies on the Ninth Circuit's decision in Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005). The Azarte court noted that the BIA's reasonable interpretation of the immigration statutes are entitled to deference, as provided by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 1285. The Azarte court nevertheless declined to defer to the BIA's interpretation, holding instead that it would be absurd for Congress to provide an alien who elects voluntary departure with the right to file a motion to reopen when that motion would, in the vast majority of cases, be deemed withdrawn when the alien complies with the voluntary departure order. Id. at 1288-89 (describing this result as "nonsensical"). See also Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.2005) (agreeing with Azarte); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005) (same). We disagree.

Voluntary departure is the result of an agreed-upon exchange of benefits between an alien and the Government. It is not granted "unless the alien requests such voluntary departure and agrees to its terms and conditions." 8 C.F.R. § 240.25(c). By requesting voluntary departure, an alien represents that he has the intent to leave the country within the specified time period. 8 U.S.C. § 1229c(b)(1)(D). Banda-Ortiz made this representation to the IJ but failed to depart. As a result, he gained access to the numerous benefits that voluntary departure provides, including: 1) the ability to choose his own destination point; 2) the opportunity to put his affairs in order without fear of being taken into custody; 3) freedom from extended detention while the government prepares for his removal; 4) avoidance of the stigma of forced removal; and 5) continued eligibility for an adjustment of status. Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir.2004). Voluntary departure is not, however, without cost to the alien. As noted, it exposes him to civil fines and renders him ineligible for certain forms of relief if he does not timely depart. 8 U.S.C. § 1229c(d).

The statutory scheme "reveals Congress' intention to offer an alien a specific benefit — exemption from the ordinary bars on subsequent relief — in return for a quick departure at no cost to the government." Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.2004). The purpose of voluntary departure is to provide an incentive to aliens "to depart without requiring the agency and courts to devote resources to the matter." Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir.2004) (holding that stay of removal does not automatically toll voluntary departure date). "But if the alien does not depart promptly, so that the [Government] becomes involved in further and more costly procedures by his attempts to continue his illegal stay here, the original benefit to the [Government] is lost." Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521 (2d Cir.1976). What Banda-Ortiz seeks is "the opportunity to litigate to the last without bearing the attendant costs [and] the chance of winning outright, plus benefits the law offers to those who avoid litigation through voluntary departure." Alimi, 391 F.3d at 892.

Furthermore, the remedy Banda-Ortiz seeks is in tension with, if not opposed to, limits on the length of and authority to extend voluntary departure. First, 8 U.S.C. § 1229c(b)(2) provides, "Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days." See also 8 C.F.R. § 1240.26(f) ("In no event can the total period of time, including any extension, exceed . . . 60 days as set forth in [8 U.S.C. § 1229c(b)(2)]".). Automatic tolling would effectively extend the validity of his voluntary departure period well beyond the sixty days that Congress has authorized. Second, a judicial extension of the period of voluntary departure is arguably contrary to 8 C.F.R. § 1240.26(f), which states, "Authority to extend the time in which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs."³

Banda-Ortiz disputes this conclusion because Congress authorized...