Barrios v. Attorney General of U.S.

Decision Date25 February 2005
Docket NumberNo. 03-3211.,03-3211.
Citation399 F.3d 272
CourtU.S. Court of Appeals — Third Circuit
PartiesMiguel Francisco Castro BARRIOS, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES,<SMALL><SUP>*</SUP></SMALL> Respondent.

Robert Frank, (argued), Newark, for Petitioner Miguel Castro Barrios.

Peter D. Keisler, Assistant Attorney General, Civil Division, Michelle E. Gorden, Senior Litigation Counsel, Office of Immigration Litigation, Thomas H. Tousley (argued), Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, for Respondent Attorney General of the United States.

Before NYGAARD and GARTH, Circuit Judges, and POLLAK, District Judge.*

OPINION

GARTH, Circuit Judge.

Section 242B(e) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996), prohibits an alien who has remained in the United States after the scheduled date of voluntary departure from applying for certain forms of relief, including an adjustment of status, for a period of five years.1 A proper showing of "exceptional circumstances" is the only escape from the clear strictures of that provision. See 8 U.S.C. §§ 1252b(e)(2)(A), (f)(2) (repealed 1996).

In this appeal, we must decide whether the failure of the immigration authorities to adjudicate a timely and properly filed motion to reopen during the pendency of the period of voluntary departure falls within the "exceptional circumstances" exception to section 242B(e). We hold that a motion to reopen that has not been intentionally delayed and has been filed prior to the date of voluntary departure, but not acted upon by the immigration authorities, falls within the "exceptional circumstances" exception, and thus we grant Barrios's Petition for Review.

I.

In December of 1988, Miguel Castro Barrios, a native and citizen of Chile, was lawfully admitted to the United States as a visitor for pleasure for the period ending on June 27, 1989. At the time of his entry, Barrios was nine years of age. He has remained in the United States since that time, receiving the majority of his education in American schools.

On July 1, 1996, the then-Immigration and Naturalization Service ("INS")2 served Barrios with an Order to Show Cause, charging him with deportability under section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B), as an overstay. After the conclusion of the deportation proceedings,3 in which the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") found Barrios deportable as charged and denied his application for suspension of deportation, the BIA granted Barrios voluntary departure in lieu of deportation through April 26, 2003.

Barrios never left the United States, and on April 10, 2003, he married a United States citizen, Ms. Stacy Kuspiel. Five days later, on April 15, 2003, Kuspiel filed an Alien Relative Petition (Form I-130) on Barrios's behalf with the United States Bureau of Citizenship and Immigration Services, seeking to secure him permanent resident status as the spouse of a United States citizen. Thereafter, on April 18, 2003, eight days before his voluntary departure period expired, Barrios filed a motion to reopen his deportation proceedings with the BIA to allow for consideration (by the IJ) of his application for adjustment of status based upon his recent marriage.4

When the BIA finally considered the motion to reopen on June 30, 2003, it denied the motion based on section 242B(e) of the INA, 8 U.S.C. § 1252b(e). That section prohibits an alien who has remained in the United States past the relevant period of voluntary departure from applying for an adjustment of status for a period of five years, absent a showing of exceptional circumstances for failing to depart. Inasmuch as Barrios remained in the United States beyond his voluntary departure date, the BIA determined that he was statutorily ineligible for an adjustment of status, notwithstanding his then-recent marriage to a United States citizen. See 8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the pendency of a request for relief-in that case, a motion to reopen deportation proceedings filed just prior to the departure date-failed to constitute an "exceptional circumstance" justifying a failure to timely depart.5

This Petition for Review followed.6

II.

Because Barrios was placed in deportation proceedings prior to April 1, 1997, and his final order of deportation was entered by the BIA after October 31, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). See Sandoval v. Reno, 166 F.3d 225, 229-31 (3d Cir.1999) (applying IIRIRA's transitional rules to jurisdiction).

We review the BIA's denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the BIA's legal conclusions de novo, with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles. Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d Cir.2001). We are also mindful of" `the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.'" INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting INS v. Cardoza — Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).

III.

Barrios argues that he is eligible for an adjustment of status based on his marriage to a United States citizen. He further argues that he filed the motion to reopen with the BIA in a timely manner, prior to his voluntary departure date, and that the administrative delay of the BIA in adjudicating his motion should not deprive him of the relief to which he is entitled. Insofar as Matter of Shaar compels a contrary conclusion, he argues that it should be rejected as a draconian and unreasonable interpretation of 8 U.S.C. § 1252b(e)(2)(A).

Inasmuch as Barrios's deportation proceedings commenced prior to the effective date of the IIRIRA, the governing statutory provisions are found in the now-repealed section 242B(e)(2)(A) of the INA,7 which provides, in relevant part:

[A]ny alien allowed to depart voluntarily under section 1254(e)(1) of this title or who has agreed to depart voluntarily at his own expense under section 1252(b)(1) of this title 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.

INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996) (emphasis added). The relief that is unavailable due to a failure to voluntarily depart includes adjustment of status. Id. § 242B(e)(5)(C), 8 U.S.C. § 1252b(e)(5)(C) (repealed 1996). For purposes of the voluntary departure provisions, "[t]he 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." Id. § 242B(f)(2), 8 U.S.C. § 1252b(f)(2) (repealed 1996).

Here, the precise question is whether Barrios's timely filing of a motion to reopen deportation proceedings before his scheduled voluntary departure date constitutes the requisite "exceptional circumstances" to overcome the statutory bar. We conclude that it does, thereby rejecting the BIA's construction of the statute in Matter of Shaar.

We begin our discussion with Matter of Shaar, 21 I & N Dec. 541, a case involving substantially similar facts to those of the present appeal. There, after the completion of deportation proceedings, the INS granted the Shaars the privilege of voluntary departure. Three days prior to the expiration of their voluntary departure period, the Shaars moved to reopen their case in order to apply for suspension of deportation. By that time, they had accrued the requisite seven years to qualify for such relief. See 8 U.S.C. § 1254(a)(1) (repealed 1996).

However, the en banc BIA, in a 7-5 decision, with four strong separate dissenting opinions, held that an alien who has filed a motion to reopen during the pendency of a voluntary departure period, but who subsequently remains in the United States after the scheduled date of departure, is statutorily ineligible for suspension of deportation pursuant to section 1252b, absent a showing that the alien's failure to depart timely was due to "exceptional circumstances." Id. at 548-49. The BIA further held that neither the filing of a motion to reopen during the pendency of a period of voluntary departure, nor the IJ's failure to adjudicate the motion prior to the expiration of the alien's voluntary departure period, constituted an "exceptional circumstance." Id. Accordingly, the BIA denied the Shaars' motion to reopen. Id.

The Ninth Circuit affirmed, in a 2-1 panel decision, finding no fault with the BIA's reading of the statute. Shaar v. INS, 141 F.3d 953, 956 (9th Cir.1998). That court concluded that the language of the statute was unambiguous and evinced a congressional intent to "control untoward delays" in the immigration system. Id. In addition, the court acknowledged that Congress provided "a single escape from the strictures of the provision-exceptional circumstances." Id. at 957. That escape, however, was foreclosed because no such circumstances were present in the case. Id.

Of particular relevance here, the Ninth Circuit held that the mere filing of a motion to reopen does not constitute "exceptional circumstances" within the...

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