Dekoladenu v. Gonzales

• Decision Date: 18 August 2006
• Docket Number: No. 05-1737.,No. 04-2164.,04-2164.,05-1737.
• Citation: 459 F.3d 500
• Parties: Christopher Mensah DEKOLADENU, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. Christopher Mensah Dekoladenu, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

459 F.3d 500

Christopher Mensah DEKOLADENU, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Christopher Mensah Dekoladenu, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.

No. 04-2164.

No. 05-1737.

United States Court of Appeals, Fourth Circuit.

Argued: March 16, 2006.

Decided: August 18, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Randall Lee Johnson, Johnson & Associates, Arlington, Virginia, for Petitioner. Carol Federighi, Senior Litigation, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Petition for review denied by published opinion. Judge MOTZ wrote the opinion, in which Judge KING concurred. Judge GREGORY wrote a separate opinion concurring in the judgment.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

An Immigration Judge (IJ) denied Christopher Mensah Dekoladenu's motion to reopen removal proceedings and also denied his subsequent motion to reconsider that decision. The Board of Immigration Appeals (BIA) affirmed, finding that Dekoladenu was ineligible for relief because he had overstayed his voluntary departure date. Dekoladenu petitions for review, arguing that his timely filed motion to reopen should have tolled the voluntary departure period. For the reasons set forth below, we deny Dekoladenu's petition for review.

I.

Dekoladenu is a citizen of Ghana who entered the United States on a six-month non-immigrant visa in 1998. He applied for asylum and withholding of removal in June 2000. Two months later, the Immigration and Naturalization Service ordered Dekoladenu to appear at removal proceedings. Dekoladenu conceded removability but indicated that he intended to file applications for "political asylum, withholding of removal, adjustment of status ..., and alternatively, voluntary departure."

On September 6, 2002, Dekoladenu's employer successfully applied for an Alien Employment Certification; this certification is a prerequisite for an employer seeking a work visa on an alien's behalf. See 8 U.S.C. § 1153(b)(3)(C) (2000). Dekoladenu's employer then filed an I-140 "Immigrant Petition for Alien Worker" on his behalf on December 26, 2002. On the same day, Dekoladenu filed an I-485 "Application to Register Permanent Residence or Adjust Status." Dekoladenu then brought motions asking the IJ to either adjourn and continue or terminate the removal proceedings in light of his pending applications. On March 6, 2003, the IJ found Dekoladenu removable, implicitly denying both motions; the IJ granted Dekoladenu a voluntary departure date of July 7, 2003.

On July 7, 2003 — the last day of his voluntary departure period — Dekoladenu filed a motion to reopen proceedings seeking adjustment of status in light of his pending I-140 and I-485 petitions. The IJ denied the motion to reopen. Dekoladenu then filed a motion to reconsider the denial of the motion to reopen. The IJ denied this motion as well. The BIA affirmed the decision of the IJ denying Dekoladenu's motion to reopen.¹

Before us, Dekoladenu argues that the BIA (1) abused its discretion in refusing to stay his voluntary departure date while considering his motion to reopen, and (2) violated his due process rights by denying him a decision on his motion to reopen. We review the BIA's decisions on these questions of law de novo. See Nwolise v. INS, 4 F.3d 306, 309 (4th Cir.1993).

II.

Dekoladenu first argues that the BIA abused its discretion when it rejected his argument that his motion to reopen tolled the voluntary departure period.² The BIA denied Dekoladenu's appeal on the ground that Dekoladenu became ineligible for adjustment of status when he remained in the United States after the expiration of his voluntary departure period.

Dekoladenu asserts that the BIA's interpretation of the relevant statutes constitutes an abuse of discretion. Prior to analyzing the BIA's construction, however, we must first determine "whether Congress has directly spoken to the precise question at issue." Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir.2005) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). "If Congress's intention is clear, the inquiry ends there." Id. Only if a statute is silent or ambiguous do we need to determine whether the BIA's interpretation is reasonable in light of the statute. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Accordingly, we turn to the statutes at issue here.

Removal proceedings are governed by 8 U.S.C. § 1229a (2000). This statute gives aliens the right to file one motion to reopen in order to present new facts or evidence. Section 1229a provides that "the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." Id. § 1229a(c)(6)(C)(i). However, the regulations implementing this statute provide that "[a]ny departure from the United States ... occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion." 8 C.F.R. § 1003.2(d) (2006).

Another statutory provision, 8 U.S.C. § 1229c, governs voluntary departure and allows an IJ to grant an alien the right to depart voluntarily "in lieu of being subject to proceedings under section 1229a." Id. § 1229c(a)(1). This statute states that, if an eligible alien requests voluntary departure prior to the completion of removal proceedings, as Dekoladenu did here, "permission to depart voluntarily ... shall not be valid for a period exceeding 120 days."³ Id. § 1229c(a)(2)(A). An alien who fails to depart "within the time period specified" must pay a fine between $1,000 and $5,000 and will be ineligible for several forms of relief, including adjustment of status. See id. § 1229c(d).

This case highlights the difficulty sections 1229a and 1229c create for aliens granted voluntary departure. "An alien may timely file a [motion to reopen], but if the BIA does not decide the [motion] within the period for voluntary departure, the alien loses the right to have a ruling [on his motion to reopen]," whether he complies with the voluntary departure period or not. Kanivets v. Gonzales, 424 F.3d 330, 334 (3d Cir.2005). As a practical matter, the BIA will rarely reach a decision on a motion to reopen before the end of the voluntary departure period. Thus, most aliens who are granted voluntary departure have no meaningful ability to file a motion to reopen when they are seeking one of the forms of relief listed in § 1229c(d).

For this reason, Dekoladenu asserts that we should interpret these two provisions so that a timely filed motion to reopen tolls the relevant voluntary departure period. We cannot agree. As discussed below, both the plain language of the statute and clear congressional intent explicitly limit the time allowed for voluntary departure and do not allow for judicial tolling of these limits.

In support of his tolling argument, Dekoladenu cites cases from other circuits that have adopted his interpretation of the statutory scheme. In Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005), the Ninth Circuit held that "in cases in which a motion to reopen is filed within the voluntary departure period ... the voluntary departure period is tolled during the period the BIA is considering the motion."⁴ Id. at 1289. The Third, Eighth, and Eleventh Circuits have followed the Ninth Circuit's approach. See Ugokwe v. U.S. Att'y Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets, 424 F.3d at 334-35; Sidikhouya v. Gonzales, 407 F.3d 950, 951-52 (8th Cir. 2005). But see Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006) petition for rehearing en banc denied, 458 F.3d 367, 2006 WL 2061132 (5th Cir. July 26, 2006) (holding by a divided panel that a motion to reopen does not toll the voluntary departure period).

Before the Azarte court turned to interpreting the statute at issue here, it provided a helpful overview of the history of voluntary departure and motions to re-open. See 394 F.3d at 1282-85. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). See Pub.L. No. 104-208, 110 Stat. 3009-546. Prior to IIRIRA, federal law provided for voluntary departure but imposed no specific time limits on the voluntary departure period. See 8 U.S.C. § 1254(e) (1994) (repealed 1996). Rather, individual IJ's exercised discretion in setting voluntary departure deadlines; "[i]n practice, voluntary departure was granted for generous periods of time." Azarte, 394 F.3d at 1284. As for motions to reopen, before IIRIRA's enactment, aliens had no statutory right to file a motion to reopen, but federal regulations allowed aliens to bring motions to reopen in order to present new information relevant to their status; these regulations also did not include a time limit. See id. at 1283.

Under the pre-IIRIRA statutory and regulatory scheme, both this court and the Ninth Circuit held that if an alien remained in the United States after the date set for voluntary departure, he could only obtain relief if exceptional circumstances existed. See Stewart v. INS, 181 F.3d 587, 596 (4th Cir.1999); Shaar v. INS, 141 F.3d 953, 956 (9th Cir.1998). A pending motion to reopen did not qualify as an exceptional circumstance, and therefore filing a motion to reopen did not toll the voluntary departure period. See Stewart, 181 F.3d at 596; Shaar, 141 F.3d at 957. The Azarte court overruled Shaar, its earlier precedent, finding that "the rationales that underlay Shaar are no longer applicable after IIRIRA." Azarte, 394 F.3d at 1286. It concluded that the changes in the law effected by IIRIRA operated to toll the voluntary departure period when an...