Lopez-Chavez v. Ashcroft, 04-1761.

• Decision Date: 09 September 2004
• Docket Number: No. 04-1761.,04-1761.
• Citation: 383 F.3d 650
• Parties: Jose L. LOPEZ-CHAVEZ, Petitioner, v. John D. ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 650

383 F.3d 650

Jose L. LOPEZ-CHAVEZ, Petitioner, v. John D. ASHCROFT, Respondent.

No. 04-1761.

United States Court of Appeals, Seventh Circuit.

Submitted April 29, 2004.

Decided September 9, 2004.

Jose L. Lopez-Chavez, Cicero, IL, pro se.

Lisa J. Palumbo (submitted), Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Petitioner.

George P. Katsivalis, Dept. of Homeland Security, Office of District Counsel, Chicago, IL, Victor M. Lawrence, Dept. of Justice, Civil DIv., Immigration Litigation, Washington, DC, for Respondent.

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Aliens seeking judicial review of immigration decisions routinely file motions to stay removal pending appeal, and it is well-established that this court has jurisdiction to grant such stays. See, e.g., Sofinet v. INS, 188 F.3d 703 (7th Cir.1999) (Sofinet I). Less commonly, aliens also move to stay voluntary departure orders. Although it is clear that the courts of appeals have no jurisdiction over the original decision of the immigration authorities to grant or deny the privilege of voluntary departure, the question whether the date by which voluntary departure must take place can be stayed to preserve the status quo pending judicial review presents a different issue. This court has never had occasion to decide expressly whether we have the authority to grant such a stay.

In the present case, petitioner Jose Lopez-Chavez filed a motion seeking two kinds of relief: first, a stay pending judicial review of his removal from the country, and second, a stay pending judicial review of the date by which his voluntary departure had to occur. Concluding that the merits of his underlying claims did not warrant any kind of stay, and observing that his voluntary departure period was set to expire three days after he filed his motion, this panel denied the motion with a note in the order that an opinion explaining the jurisdictional basis of our decision would follow. This opinion furnishes that explanation.

I

Voluntary departure is an alternative to removal (as deportation is now called) that the immigration service may grant in its discretion. An alien who has been granted this privilege is entitled to leave the country at her own expense within a certain period of time (usually up to 60 days). 8 U.S.C. § 1229c(a), (b) (2004). For the government, voluntary departure expedites and reduces the cost of removal. Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir.2004). For aliens, voluntary departure is desirable because it allows them to choose their own destination points, to put their affairs in order without fear of being taken into custody at any time, to avoid the stigma and various penalties associated with forced removals (including extended detention while the government procures the necessary travel documents and ineligibility for readmission for a period of five or ten years, see 8 U.S.C. § 1182(a)(9)(A)), and it facilitates the possibility of return to the United States, for example, by adjustment of status. Rife, 374 F.3d at 614; Sofinet v. INS, 196 F.3d 742, 748 (7th Cir.1999) (Sofinet II). Alongside these benefits, however, are some serious detriments to a voluntary departure. Although leaving the country no longer moots an alien's appeal if it falls (as Lopez-Chavez's does) under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), see Rife, 374 F.3d at 615, departure makes it difficult as a practical matter for the alien to appeal the underlying immigration decision and subjects the alien, at least in an asylum case, to the risk that she will suffer the very persecution at issue in the proceeding (which obviously can include imprisonment or death) before the appeal can be completed. See Rife, 374 F.3d at 615; Khalil v. Ashcroft, 370 F.3d 176, 181 (1st Cir.2004); Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.2003) (per curiam). On the other hand, failure to depart voluntarily (if that privilege has been granted) carries its own penalties: relinquishment of any posted bond, a fine of between $1000 and $5000, and ineligibility for a period of ten years for various forms of immigration relief. 8 U.S.C. § 1229c(b)(3), (d). Thus, aliens who are granted voluntary departure face a difficult choice: either follow the rules, depart voluntarily, and obtain a few benefits, at the price of serious or fatal difficulty in pursuing relief and exposure to intolerable conditions in the country of destination; or break the rules by failing to leave, accept the penalties associated with that failure, and continue to press any appeals. See Nwakanma, 352 F.3d at 327; Ademi v. INS, 31 F.3d 517, 521 n. 8 (7th Cir.1994); Kaczmarczyk v. INS, 933 F.2d 588, 598 (7th Cir.1991). But see Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.2004) (positing that aliens must accept both benefits and burdens of voluntary departure if they apply for it). This case presents the question whether a court has the power to give some relief to an alien who has filed a timely motion to stay a voluntary departure (that is, the alien has requested the stay prior to the date fixed for departure).

As we indicated earlier, this case does not present the question whether courts have jurisdiction to review the merits of an underlying decision on a request for voluntary departure; it is perfectly clear that they do not. 8 U.S.C. § 1229c(f) ("No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure...."); Sofinet II, 196 F.3d at 748. The question here is the distinct one whether, once the immigration authorities in their discretion have chosen to grant such a request, is it within the power of the court to stay the time by which the voluntary departure must take place? We must first clarify precisely what relief the alien is seeking when she moves to "stay" a voluntary departure order. Essentially, the alien seeks to ensure that if the voluntary departure period expires before the court reaches a decision on the petition for review (which almost always occurs, see Ademi, 31 F.3d at 521 n. 8), she still will be able to depart voluntarily if the petition for review is denied. Staying a voluntary departure order merely tolls the voluntary departure period; after the stay expires (either because of an unfavorable decision or otherwise), the clock begins ticking again and the alien has the balance of the days left in which to leave the country. See Desta v. Ashcroft, 365 F.3d 741, 743-44 (9th Cir.2004).

Although some of our cases might be read to suggest that courts do not have jurisdiction to stay voluntary departure orders, we have never decided this issue conclusively. Addressing a different question, this court held before the passage of IIRIRA that we lacked "authority" to reinstate (essentially, restart in full) a voluntary departure period after a decision on a petition for review, because only the immigration service possessed that discretion. See Ademi, 31 F.3d at 521; Zulbeari v. INS, 963 F.2d 999, 1001 (7th Cir.1992); Kaczmarczyk, 933 F.2d at 597-98. Full reinstatement, however, is very close in practical effect to an initial grant of the privilege of voluntary departure, and thus those decisions merely reflect an effort not to undermine the immigration service's authority over initial grants. See Ngarurih, 371 F.3d at 197 (Gregory, J., dissenting); Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004). Moreover, it is unclear from these cases whether we were recognizing a jurisdictional bar or merely a discretionary rule, for we also cautioned that we might reconsider our position should it appear that the immigration service was using its discretion not to extend voluntary departure periods in an effort to deter aliens from seeking judicial review of immigration decisions. See Ademi, 31 F.3d at 521 n. 8; Kaczmarczyk, 933 F.2d at 598. More recently, we observed that IIRIRA stripped courts of jurisdiction to review the immigration service's decisions with respect to voluntary departure. See Lalani v. Perryman, 105 F.3d 334, 335-37 (7th Cir.1997). In Lalani, however, the question concerned possible review of a decision by the responsible immigration official refusing to extend a voluntary departure date; the question of a court's power to preserve the status quo pending judicial review never came up. Current administrative regulations specify that only certain immigration officials have jurisdiction to extend the length of voluntary departure periods. See 8 C.F.R. § 1240.26(f) (2004) ("Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs.") But the regulation's label, "Voluntary departure — authority of the Executive Office for Immigration Review," suggests that it regulates the authority of only the executive branch, and not that of the courts. See Khalil, 370 F.3d at 181. But see Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280 (3d Cir.2004) (holding that a court has no power to reinstate an already-expired time period for voluntary departure, and indicating in dicta that it similarly could not extend that period).

Several of our sister courts, including the Sixth, Eighth, and Ninth Circuits, have held recently that courts retain the equitable power to stay voluntary departure orders, notwithstanding the restrictions that exist under IIRIRA, when such an action is taken to preserve meaningful judicial review. See Rife, 374 F.3d at 614-15 (8th Cir.); Desta, 365 F.3d at 747-48 (9th Cir.); Nwakanma, 352 F.3d at 327 (6th Cir.); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir.2003). As the Ninth Circuit noted in Desta:

IIRIRA does not specify the circumstances in which w...