In re Shaar
| Decision Date | 11 July 1996 |
| Docket Number | File A72 519 787.,Interim Decision No. 3290. |
| Citation | 21 I&N Dec. 541 |
| Parties | In re Arie SHAAR, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondents are a family, citizens of Israel, consisting of two parents and their 23-year-old son. They entered the United States on July 17, 1987, as nonimmigrant visitors for pleasure. On March 12, 1993, an Order to Show Cause and Notice of Hearing (Form I-221) was issued for each respondent charging them with deportability under section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. V 1993), as overstays. At a deportation hearing on August 19, 1993, the respondents were granted voluntary departure on or before April 30, 1994, with an alternate order of deportation to Israel if they should fail to depart as required. They were given both oral and written warnings regarding the consequences of failing to leave the United States within the period of voluntary departure pursuant to section 242B(e)(2) of the Act, 8 U.S.C. § 1252b(e)(2) (Supp. V 1993). The Immigration and Naturalization Service later extended this period of voluntary departure to October 21, 1994. On October 19, 1994, 3 days prior to the expiration of their voluntary departure, the respondents filed a motion to reopen in order to apply for suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) (1994). The respondents alleged in their motion that they were required to depart the United States on or before October 21, 1994, and that they were not eligible for suspension at the time of the deportation hearing. The Service opposed the motion on the ground that the respondents failed to establish a prima facie case of extreme hardship.
In a decision dated December 2, 1994, the Immigration Judge denied the motion on the ground that the respondents are ineligible for relief from deportation as a matter of law. The Immigration Judge stated that the respondents have not provided proof of an authorized extension of voluntary departure by the Service and have not claimed exceptional circumstances preventing their timely departure. See sections 242B(e)(2) and (5) of the Act.
The respondents filed an appeal of the Immigration Judge's decision in which they attached copies of voluntary departure notices indicating that their period of voluntary departure had been extended to October 21, 1994. Because their motion to reopen had been filed before the expiration of voluntary departure, they requested a remand of the proceedings to the Immigration Court for a hearing on the merits of their suspension applications.1
The issue in this case is whether the expiration of the period of voluntary departure while a motion to reopen is pending renders a respondent statutorily ineligible for suspension of deportation pursuant to section 242B(e)(2)(A) of the Act if the notice requirements of section 242B(e)(2)(B) of the Act have been satisfied.
Section 242B(e)(2) of the Act provides, in pertinent part, as follows:
(A) IN GENERAL. — Subject to subparagraph (B), any alien allowed to depart voluntarily under section 244(e)(1) or who has agreed to depart voluntarily at his own expense under section 242(b)(1) 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.
(B) WRITTEN AND ORAL NOTICE REQUIRED. — Subparagraph (A) shall not apply to an alien allowed to depart voluntarily unless, before such departure, the Attorney General has provided written notice to the alien in English and Spanish and oral notice either in the alien's native language or in another language the alien understands of the consequences under subparagraph (A) of the alien's remaining in the United States after the scheduled date of departure, other than because of exceptional circumstances.
Under section 242B(e)(5), the relief described in subparagraph (A) includes "voluntary departure under section 242(b)(1)," "suspension of deportation or voluntary departure under section 244," and "adjustment or change of status under section 245, 248, or 249." The 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." Section 242B(f)(2) of the Act.
The starting point in statutory construction is the language of the statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984); In re Perroton, 958 F.2d 889, 893 (9th Cir. 1992); Matter of Farias, 21 I&N Dec. 269, at 272 (BIA 1996). If the language of the statute is clear and unambiguous, judicial inquiry is complete and that language controls absent rare and exceptional circumstances. In re Perroton, supra, at 893. The language of section 242B(e)(2) of the Act is clear on its face and without ambiguity. In pertinent part, this statute mandates a period of ineligibility for certain forms of relief for "any alien allowed to depart voluntarily under section 244(e)(1) . . . who remains in the United States after the scheduled date of departure, other than because of exceptional circumstances" after having been given proper notice of the consequences of failing to timely depart. Section 242B(e)(2) of the Act (emphasis added). In the instant case, the respondents, after having been granted voluntary departure and warned of the consequences of failing to timely depart, remained in the United States after their scheduled date of departure, October 21, 1994. Accordingly, unless the respondents can establish "exceptional circumstances" for having remained in the United States beyond this date, they are ineligible for suspension of deportation or the other forms of relief enumerated in section 242B(e)(5) of the Act.
Section 242B(f) of the Act defines "exceptional circumstances" as "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." (Emphasis added.) Webster's II New Riverside University Dictionary 450 (1984) defines "exception" as "[o]ne that is excepted, esp. a case not conforming to normal rules" and defines "exceptional" as "[b]eing an exception: unusual." Sections 242B(e) and (f) contemplate that unanticipated circumstances may arise which are beyond an alien's control and which prevent the alien from leaving on or before the scheduled date of departure. Congress listed as two examples of events which would qualify as exceptional circumstances the serious illness of the alien or the death of an immediate relative of the alien and then specified that events less compelling than these will not qualify as an exceptional circumstance.
We find that the mere filing of a motion to reopen during the pendency of a period of voluntary departure in order to apply for suspension of deportation does not fit within the definition of an "exceptional circumstance." First, the accrual of 7 years of continuous physical presence in this country during the voluntary departure period by the predictable passage of time is not unusual or out of the ordinary and is not a compelling event which could not have been anticipated. Section 242B(e)(2) of the Act is premised on the fact that aliens often become eligible for additional forms of relief from deportation, including suspension of deportation, after having been granted voluntary departure; otherwise, there would be no need for that section of the statute. An alien's filing of a motion to reopen after accruing 7 years of continuous physical presence in this country is certainly less compelling than the two examples of exceptional circumstances listed in the Act: the alien's serious illness or the death of an immediate family member.
Moreover, the filing of a motion to reopen to apply for suspension of deportation after having been granted voluntary departure is not an exceptional circumstance which is "beyond the control" of the alien. The respondents first made the decision to request voluntary departure, agreed to leave the...
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