Khalil v. Ashcroft, 03-1934.

• Decision Date: 03 June 2004
• Docket Number: No. 03-1934.,03-1934.
• Parties: Said Guirguis KHALIL, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

370 F.3d 176

Said Guirguis KHALIL, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1934.

United States Court of Appeals, First Circuit.

Heard May 5, 2004.

Decided June 3, 2004.

Christopher W. Drinan for petitioner.

Daniel Meron, Civil Division, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and David V. Bernal and M. Jocelyn Lopez Wright, Assistant Directors, Office of Immigration Litigation, were on brief, for respondent.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

On July 24, 2003, this court affirmed a September 2002 decision by the Board of Immigration Appeals (BIA) denying asylum and withholding of deportation to Said Guirguis Khalil. Khalil v. Ashcroft, 337 F.3d 50, 54, 56 (1st Cir.2003). The BIA had granted Khalil a thirty-day period of voluntary departure, which expired while his petition for review was pending before this court. We, as a matter of grace, reinstated that thirty-day departure period so that Khalil could leave the country voluntarily without incurring the penalties for forcible removal. Id. at 56. In doing so, we applied the rule of Umanzor-Alvarado v. INS, 896 F.2d 14 (1st Cir.1990) (Breyer, J.), which held that courts have the inherent equitable authority to decide on a case-by-case basis to reinstate the period of voluntary departure earlier granted by the BIA as part of their review of petitions challenging BIA actions. Id. at 16. The penalties for failing to depart within the designated voluntary departure period are significant. Violators may be fined $1,000 to $5,000 and are ineligible for ten years for further grants of voluntary departure, cancellation of removal, adjustment of status, change of nonimmigrant classification, or creation of a record of lawful admission for permanent residence. 8 U.S.C. § 1229c(d). In addition, if a default removal order has been entered, violators may be deported and, accordingly, be prevented from returning to the United States without the prior consent of the Attorney General for either five or ten years, depending on the circumstances. See id. § 1182(a)(9)(A).

Khalil did not leave within the thirty days he had been given by this court. Instead, Khalil waited (without seeking an extension of that thirty-day period) to see how this court would decide the instant case: a second petition for review, filed earlier on July 2, 2003, from the BIA's denial of his separate motion to reopen for adjustment of status. The BIA had denied Khalil's petition on the ground that he was not eligible for adjustment of status because he had overstayed the voluntary departure period originally granted by the BIA in September 2002. Khalil did not seek any interim relief from this court pending review of his second petition. In this petition, he argues that our earlier reinstatement of the privilege of voluntary departure for a limited period operates retroactively and means that the BIA's basis for denying his motion to reopen is now wrong.

We affirm the BIA's decision and hold that this court's reinstatement of the privilege of voluntary departure did not have retroactive effect and thus does not provide a basis to overturn the BIA's denial of Khalil's motion to reopen.

We also outline, for the purpose of alerting aliens and the bar to the issue, a broader argument that the respondent chose to make in this case: that federal courts lack the power to reinstate the privilege of voluntary departure as part of their review of petitions challenging BIA actions and, in the alternative, that if the courts have such power, it is restricted to situations in which a petitioner moved for a stay from the court before the voluntary departure period granted by the agency expired. The respondent, recognizing that Umanzor-Alvarado conflicts with its position, identifies changes in the statutory scheme and asks us to overrule that case. We reserve the issue of the bounds of this court's authority for another case where resolution of that issue is required.

I.

On September 23, 2002, the BIA affirmed an immigration judge's order denying Khalil asylum and withholding of deportation, and gave Khalil thirty days from the date of the order to voluntarily depart. Khalil had claimed religious persecution as a Coptic Christian in Egypt. The BIA's order included a written notice outlining the statutory penalties for failing to depart within the allotted time. The BIA also entered a default order of removal to Egypt if Khalil failed to depart on time.

Khalil did not depart, but appealed the BIA's order to this court on October 22, 2002. He asked the Immigration and Naturalization Service (INS)¹ to extend his period of voluntary departure pending our review. The INS denied his request and set a new January 9, 2003 departure date.

On November 26, 2002, he filed a separate motion with the BIA to reopen proceedings in order to adjust his status based on an immigrant visa petition filed by his employer and approved by the INS on November 18. See 8 U.S.C. § 1255(i)(1) (allowing adjustment of status based on such a visa petition, provided certain conditions are fulfilled). Khalil did not raise in that motion the possible effect of an order from this court reinstating the period of voluntary departure.

The January 9 deadline passed, but Khalil did not leave. Nor did he file with this court a motion to stay removal or toll the running of the period for voluntary departure.² We note, though, that the INS had neither detained Khalil nor scheduled him for removal, so there was no event (apart from the passing of the January 9 deadline) that would have prompted Khalil to seek a stay from the court.

The BIA denied the motion to reopen on June 2, 2003 on the ground that Khalil was statutorily ineligible to apply for adjustment of status because he had overstayed the January 9 deadline for voluntary departure. See 8 U.S.C. § 1229c(d). On July 2, 2003, Khalil filed the instant petition for review of that denial.

Meanwhile, Khalil's appeal on his first petition was still pending in this court. On July 24, 2003, this court affirmed the BIA's denial of asylum and withholding of deportation and reinstated the thirty-day period of voluntary departure originally granted by the BIA, citing Yatskin v. INS, 255 F.3d 5, 11 (1st Cir.2001). Khalil, 337 F.3d at 56. The panel was not made aware of Khalil's expired January 9, 2003 departure deadline.³

Mandate issued on October 23, 2003 without the respondent having petitioned for rehearing by the panel or en banc to challenge the reinstatement order.

II.

On appeal from the BIA's denial of his motion to reopen, Khalil does not contest that if he had overstayed his period of voluntary departure, he would in fact be statutorily ineligible for adjustment of status under 8 U.S.C. § 1229c(d), and his motion to reopen would have been properly denied. Instead, he argues that he did not overstay his departure period because this court's July 24, 2003 reinstatement of the voluntary departure period retroactively operated to extend his period of departure beyond January 9, 2003. Accordingly, he urges that the BIA's decision be vacated and remanded with instructions to treat him as statutorily eligible for adjustment of status or, in the alternative, to consider the effect of this court's reinstatement of voluntary departure.

As the respondent correctly points out, Khalil did not raise the possible effect of any reinstatement order from this court with the BIA in his motion to reopen. Nor did he return to the BIA once our reinstatement order was issued. As a result, he has likely waived the issue. Nonetheless, we reach the issue in order to settle the question he raises.

We reject Khalil's argument. Ordinarily, grants of equitable relief apply prospectively rather than retroactively. That is why, for example, plaintiffs must show a need for prospective relief in order to obtain an injunction. See Lopez v. Garriga, 917 F.2d 63, 67-68 (1st Cir.1990). Khalil has not cited any authority, or even any reason, for viewing the reinstatement by a court of appeals of a limited period for voluntary departure any differently. This court's reinstatement of voluntary departure was not intended to apply retroactively. Nor should it be understood that way: Black's Law Dictionary defines "reinstate" as "to place again in a former state or position; to restore." Black's Law Dictionary at 1290 (7th ed.1999). We were restarting the clock on a period that had already run.⁴

The reinstatement of the privilege of voluntary departure, which operates prospectively, gives a petitioner an opportunity, after taking his appeal, to depart at his own expense to a country of his own choosing without facing the adverse consequences of deportation. See 8 U.S.C. § 1182(a)(9)(A) (explaining those consequences). It does not retroactively nullify the fact that a petitioner overstayed his original period of voluntary departure. Khalil was statutorily ineligible for adjustment of status at the time of the BIA's decision and remains so today.

The respondent raises questions about whether a reinstated period of voluntary departure begins running from the date of this court's decision or from the issuance of mandate and whether the period is stayed if the alien seeks review in the Supreme Court.⁵ We need not — and do not — address those questions today because, under any interpretation, it is clear that Khalil has overstayed and abused the time he was given by this court, and so has again lost the privilege of voluntary departure.

III.

Although this opinion could end there, we think it better to note but not decide two challenges raised by the respondent to this court's authority to reinstate voluntary departure in its decision on a petition for review. This discussion is meant simply to outline some of the relevant arguments; it should not be construed as a prediction as to how the questions...