In re Zmijewska
| Decision Date | 21 February 2007 |
| Docket Number | File A70 576 279.,Interim Decision No. 3552. |
| Citation | 24 I&N Dec. 87 |
| Court | U.S. DOJ Board of Immigration Appeals |
| Parties | In re Bozena ZMIJEWSKA, Respondent. |
The United States Court of Appeals for the Second Circuit has remanded this case with a request that we clarify whether, under section 240B of the Immigration and Nationality Act, 8 U.S.C. § 1229c (2000), "Congress intended to permit courts, in the exercise of their equitable discretion, to grant exceptions to the 10-year ineligibility period imposed as a penalty for failure to comply with voluntary departure orders." Zmijewska v. Gonzales, 426 F.3d 99, 101 (2d Cir. 2005).
The court further requested that we reconsider the respondent's claims "in light of the Government's revelation at oral argument that [her] voluntary departure deadline was in fact November 8, 2002, rather than November 9, 2002, and therefore that [her] Board-accredited representative had not informed her of the existence of the BIA's voluntary departure order by the time her departure deadline passed." Id. at 100-01.
As discussed below, Congress has provided certain exceptions to the penalties for overstaying a period of voluntary departure. The statute now limits application of the penalty provisions to situations in which a respondent "voluntarily fails to depart the United States within the time period specified." Section 240B(d)(1) of the Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006) (emphasis added). Thus, assuming the truth of the respondent's allegations regarding her accredited representative's delay in informing her of our voluntary departure order, we find that the respondent did not voluntarily fail to depart within the period for voluntary departure. We will therefore vacate our prior decision denying the respondent's motions to reopen and reconsider, grant her motion to reopen to apply for adjustment of status, and remand the record to the Immigration Judge for further proceedings.
The respondent entered the United States in July 1988 and remained beyond the 6 months authorized by her visitor's visa. The Immigration and Naturalization Service ("INS"), now the Department of Homeland Security ("DHS"), initiated removal proceedings in September 1999.
Assisted by an accredited representative, the respondent conceded in Immigration Court that she was subject to removal for staying beyond the period authorized by her nonimmigrant visa. In a decision dated June 13, 2000, the Immigration Judge pretermitted her application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2000), for lack of a qualifying relative. In addition, because the respondent's pending request for a labor certification had not yet been approved, the Immigration Judge found her ineligible for adjustment of status and any other relief from removal other than voluntary departure. The Immigration Judge issued an order granting the respondent 60 days for voluntary departure from the United States, with an alternate order of removal to Poland. The Immigration Judge also instructed the respondent that if she failed to depart within the time afforded, she would be barred from relief from removal "unless there were exceptional circumstances beyond [her] control as to why [she] didn't comply with that order of voluntary departure such as being very sick or someone dying in [her] family or some other type of exceptional circumstance."
The respondent timely appealed the Immigration Judge's pretermission of her request for cancellation of removal. On October 9, 2002, we summarily dismissed the respondent's appeal and granted her 30 days for voluntary departure.
On January 7, 2003, after learning that her appeal had been dismissed and obtaining new counsel, the respondent filed a motion to reopen alleging ineffective assistance by her former representative for failing to seek a remand for adjustment of status while her appeal was pending with the Board and for failing to notify her of the Board's decision until after the period we granted her for voluntary departure had passed. The respondent attached to her motion to reopen an approved labor certification and an approved employment visa petition. The relevant Visa Bulletins indicate that visas with the respondent's priority date were available for the respondent's employment category in March 2002.
On April 29, 2003, we denied the motion to reopen. We found that the motion was untimely and, alternatively, that the respondent, as a consequence of overstaying our grant of voluntary departure, was ineligible for adjustment of status under the 10-year bar in section 240B of the Act. We also rejected the respondent's claim that "exceptional circumstances" excused her from the 10-year bar, finding that although such an exception was included in former section 242B of the Act, 8 U.S.C. § 1252b (1994), a respondent in removal proceedings instituted on or after April 1, 1997, is subject to the terms of section 240B which, unlike former section 242B, does not contain an "exceptional circumstances" exception for failing to comply with a voluntary departure order.
The respondent then filed a timely motion for reconsideration, pointing out that we had erred in finding that the motion to reopen was untimely and requesting that we recognize an exception to the voluntary departure penalty when failure to depart within the time provided is the result of ineffective assistance of counsel. On September 26, 2003, we issued a decision acknowledging that the motion to reopen had been timely filed but denying reconsideration on the basis that "[t]he prior decision found that under section 240B of the Immigration and Nationality Act, 8 U.S.C. § 1229c, the respondent had not shown `exceptional circumstances' for her failure to comply with the voluntary departure order."
The respondent appealed both the denial of the motion to reopen and the denial of the motion to reconsider to the Second Circuit. In its remand to the Board, the court framed the issue as follows:
The question presented is whether, in light of 8 U.S.C. § 1229c, [the respondent's] failure to comply with a voluntary departure order renders her statutorily ineligible to receive an adjustment of status arising out of an employment offer, see 8 U.S.C. § 1255(a), or whether [she] may instead seek equitable relief from the provisions of 8 U.S.C. § 1229c(d) in the extraordinary circumstances presented here-namely, where: (1) [she] relied on erroneous representations of an immigration agent advising her not to seek adjustment of status after receiving a labor certification but prior to the BIA's order of voluntary departure; (2) [her] Board-accredited representative failed to notify her of the existence of the BIA's voluntary removal order until the day after she was required to depart the United States; and (3) an Immigration Judge ("IJ") informed (or misinformed) [the respondent] on the record that even if she failed to depart voluntarily in accordance with a BIA order, she still could avoid becoming statutorily ineligible for further relief by demonstrating that "there were exceptional circumstances beyond [her] control."
Zmijewska v. Gonzales, supra, at 101 (footnote omitted).
We begin with the statutory language of the penalty provisions for failing to depart within the time afforded for voluntary departure. Penalties for failing to depart pursuant to a grant of voluntary departure were first imposed in 1990 with the enactment of section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061, 5064 (effective Nov. 29, 1990). The statute, which was codified at former section 242B(e)(2)(A) of the Act, provided, in relevant part:
[A]ny alien . . . 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.
(Emphasis added.) The initial penalty provision thus contained an "exceptional circumstances" exception for failing to depart within the allotted time. The term "exceptional circumstances" was defined to include "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." Former section 242B(f)(2) of the Act. The statute also required written notice in English and Spanish and oral notice in a language the alien understands of the consequences of failing to depart within the time afforded, other than because of exceptional circumstances. Former section 242B(e)(2)(B) of the Act.
In 1996, Congress amended the penalty provision for failure to depart pursuant to a grant of voluntary departure in a number of ways. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 304(a)(3), 110 Stat. 3009-546,...
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