Chedad v. Gonzales

• Decision Date: 31 July 2007
• Docket Number: No. 05-2782.,05-2782.
• Citation: 497 F.3d 57
• Parties: Adil CHEDAD, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

497 F.3d 57

Adil CHEDAD, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-2782.

United States Court of Appeals, First Circuit.

Heard September 13, 2006.

Decided July 31, 2007.

Saher J. Macarius, with whom Law Offices of Saher J. Macarius, was on brief for petitioner.

Manuel A. Palau, Trial Attorney, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron, Assistant Director, were on brief, for respondent.

Nadine Wettstein and Matthew Downer, on brief for amicus curiae American Immigration Law Foundation.

Before SELYA, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Adil Chedad petitions for review of a decision of the Board of Immigration Appeals ("BIA") upholding the order of an Immigration Judge ("IJ") pretermitting his application for adjustment of status and declaring him removable from the United States. The basis of the IJ's decision, and its affirmance, was that Chedad was ineligible for any such adjustment because he had overstayed a period of voluntary departure imposed as part of a prior BIA order closing the removal proceedings against him.¹ Before the voluntary departure period lapsed, however, Chedad had filed a motion with the BIA to reopen those proceedings due to previously unavailable evidence.

The BIA granted the motion to reopen and remanded the matter to the IJ, who, as just noted, deemed Chedad ineligible for any further relief because he had disobeyed the voluntary departure order. Chedad argues that the BIA erroneously affirmed the IJ's ruling, either because the filing of his motion to reopen tolled the running of the voluntary departure period, or because the BIA's allowance of the motion stripped the voluntary departure order of any legal significance. We deny Chedad's petition for review.

I.

The Immigration and Naturalization Service ("INS") commenced removal proceedings against Chedad, a native of Morocco, in 1997, asserting that he had remained in the United States beyond the time permitted by the six-month nonimmigrant visa issued to him in 1994.² Chedad appeared before the IJ with counsel on May 28, 1998 and admitted overstaying his visa. He also requested a continuance of the proceedings on the ground that his wife, Joanne S. Francisco—a lawful permanent resident of the United States—had filed an application for citizenship, as well as a visa application on Chedad's behalf, known as an I-130 petition. See 8 U.S.C. § 1154(a)(1)(B)(i); 8 C.F.R. § 204.1(a)(1) (2006).³ If Francisco became a naturalized citizen of the United States, then Chedad would become immediately eligible to apply for adjustment of status to that of an alien admitted for lawful permanent residence. See 8 U.S.C. § 1151(b)(2)(A)(i). The IJ therefore granted Chedad's motion for a continuance to allow the processing of his spouse's applications. Chedad later received a second continuance for that purpose. Meanwhile, Francisco's I-130 petition on Chedad's behalf was approved on October 21, 1998.

Francisco's application for naturalization was still pending when removal proceedings against Chedad resumed on March 4, 1999. Though Chedad sought another continuance on that ground, the IJ refused, giving him the choice between the entry of a final order of removal and an opportunity to seek voluntary departure. Id. § 1229c(b). Chedad elected voluntary departure and received a continuance so that he could obtain a valid travel document for the purpose of leaving the country.

When Chedad reappeared before the IJ on June 11, 1999, he again moved for a continuance to allow the processing of his wife's application for citizenship; the IJ again denied the motion. Instead, the IJ granted Chedad's motion for voluntary departure, requiring him to leave in sixty days. Id. § 1229c(b)(2). The IJ also warned Chedad of the consequences of disobeying the voluntary departure order, including the loss of the opportunity to pursue adjustment of immigration status through several different avenues for a period of ten years. Id. § 1229c(d)(1) (Supp.2006).⁴

Chedad appealed the IJ's denial of his final motion for a continuance to the BIA. During the pendency of the appeal, on May 24, 2001, Francisco completed the naturalization process. On July 15, 2002, with the appeal still pending, Chedad filed a motion to remand with the BIA, citing his newly minted status as the spouse of a United States citizen, as well as the prior approval of his I-130 petition.

The BIA dismissed Chedad's appeal and denied his motion to remand in an order issued on October 25, 2002. First, the BIA ruled that the IJ had not abused her discretion in denying Chedad's final request for a continuance of the removal proceedings. Second, the BIA denied the motion to remand because it was unaccompanied by an application for adjustment of Chedad's status to that of an alien admitted for lawful permanent residence pursuant to 8 U.S.C. § 1255(a), as required by BIA rules. 8 C.F.R. § 1003.2(c)(1). The BIA granted Chedad thirty days from the date of its order to depart the country voluntarily, repeating the IJ's admonition about the consequences of any failure to do so.⁵

On November 22, 2002, before the expiration of the voluntary departure period, Chedad filed a motion with the BIA to reopen the removal proceedings, again asserting that he had become eligible for adjustment of status under § 1255(a). This filing, made within ninety days of the BIA's decision as required by the INA, 8 U.S.C. § 1229a(c)(7)(C)(i), and its implementing regulations, 8 C.F.R. § 1003.2(c)(2), included the application for adjustment of status and supporting materials that had been omitted from Chedad's earlier motion to remand. Noting that Chedad's motion to reopen "demonstrate[d] that he is now prima facie eligible for adjustment of status," the BIA granted the motion in an order dated February 21, 2003, remanding the case to the IJ "for proceedings consistent with this opinion." The BIA's order made no mention of the voluntary departure requirement previously imposed.

When the proceedings found their way back to the IJ, however, the prior voluntary departure order—which Chedad had not satisfied—proved dispositive. The IJ determined that, because Chedad had failed to leave the United States as required, he had become ineligible for adjustment of status by operation of 8 U.S.C. § 1229c(d). The IJ rejected Chedad's arguments that (1) the BIA had nullified its voluntary departure order by granting his motion to reopen, and (2) the filing of his motion to reopen, on November 22, 2002, had tolled the running of the voluntary departure period. In rejecting these arguments, the IJ relied on Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the filing of a motion to reopen does not itself toll the voluntary departure period. The IJ therefore pretermitted Chedad's application for adjustment of status and ordered him removed from the United States.

Chedad appealed, repeating the arguments he had made before the IJ. In particular, Chedad noted that Shaar had recently been overruled by the Ninth Circuit, which held that a timely motion to reopen could toll the voluntary departure period. Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005). The BIA, however, did not consider itself bound by Azarte, or similar decisions from other circuits, in a case arising within this court's appellate jurisdiction, and therefore rejected Chedad's tolling argument. As to Chedad's contention that the BIA had emasculated its prior voluntary departure order by granting the motion to reopen, the BIA explained that the latter decision "was based solely on the fact that [Chedad] had established prima facie eligibility for relief and not based on [the BIA's] adjudication of the merits of his claim; also, [his] motion had not been opposed by [the INS] so no issues were raised to rebut [his] eligibility for relief." The BIA therefore upheld the IJ's ruling that Chedad was disqualified from seeking adjustment of status based on his disobedience of the voluntary departure order — a fact that had not been considered by the BIA in previously deciding to remand the case. Chedad then petitioned this court for review.

In his petition, Chedad argues that the BIA mistakenly upheld the IJ's reliance on the voluntary departure order as a basis for disqualifying him from further relief. We have jurisdiction over such a petition under 8 U.S.C. § 1252(a)(1), which provides for "review of a final order of removal," notwithstanding the jurisdiction-stripping provision of § 1252(a)(2)(B)(i). DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir.2005) (exercising jurisdiction over BIA's ruling that violation of voluntary departure order rendered alien ineligible for adjustment of status because BIA did not reach merits of adjustment claim).

Chedad contends that the BIA erred in refusing to treat (1) the filing of his motion to reopen as tolling the voluntary departure period, or (2) the allowance of the motion as depriving the voluntary departure order of its effect. In considering such arguments, "[w]e afford de novo review to the BIA's legal conclusions, but cede some deference to its interpretations of the INA." Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.2005) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

II.

Chedad argues that the provisions of the INA authorizing motions to reopen, on the one hand, and voluntary departure, on the other, conflict in such a way as to require the timely filing of the former to toll the running of the latter. This argument has prevailed in a number of circuits, see Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte, 394 F.3d at 1289, but has failed in others, see ...