Mardones v. McElroy
| Decision Date | 01 August 1998 |
| Docket Number | P,Docket No. 98-4324,MARDONES-ROJA |
| Citation | 197 F.3d 619 |
| Parties | (2nd Cir. 1999) SILVIA AMARO MARDONES and OMAR VICENTEetitioners, v. EDWARD McELROY, District Director of the Immigration and Naturalization Service of New York, and JANET RENO, Attorney General of the United States, Respondents |
| Court | U.S. Court of Appeals — Second Circuit |
MICHAEL G. MOORE, Springfield, MA, for Petitioners.
DIOGENES P. KEKATOS, Assistant United States Attorney, New York, NY (James A. O'Brien III, Special Assistant United States Attorney, Mary Jo White, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, New York, NY, on the brief), for Respondents.
Before: WALKER, CABRANES, and SACK, Circuit Judges.
The description of the facts underlying this case is a chronicle of petitioners' highly unfortunate exercise of bad judgment or reliance on bad advice, the effects of which they now seek to overcome on appeal. But, as Judge Oakes, speaking for the Court, recently mused, "the immigration laws have a certain inexorability." United States v. Krcic, 186 F.3d 178, 179 (2d Cir. 1999). We cannot help petitioners avoid the plain requirements of those laws or the consequences of their own behavior.
Omar Vicente Mardones-Rojas, a native of Chile, and his wife, Silvia Amaro Mardones, a native of Guatemala, have resided in the United States since 1982. During the intervening seventeen years they have been continuously employed and have consistently paid their taxes. They own their own home and have two school-aged children who are United States citizens. Mrs. Mardones has extensive family ties in the United States, including her father and four siblings, all of whom are citizens. Petitioners legally entered the United States on non-immigrant visas in 1982. Upon the expiration of their visas, they remained in the United States without permission, thereby becoming "illegal aliens." Eight years ago, in 1991, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against them.
At a hearing before an Immigration Judge ("IJ") on March 11, 1992, petitioners conceded their deportability and stated their intention to seek suspension of deportation pursuant to Immigration and Nationality Act ("INA") §244(a), 8U.S.C. §1254(a) (repealed 1997), or, in the alternative, voluntary departure pursuant to INA §244(e), 8 U.S.C. §1254(e) (repealed 1997). Additionally, Mrs. Mardones indicated that she sought asylum pursuant to the terms of the class action settlement approved in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (); see also Blanco v. INS, 68 F.3d 642, 644-45 (2d Cir. 1995) (citing American Baptist Churches, 760 F. Supp. at 799-800).
On December 13, 1993, petitioners again appeared before an IJ, explaining that Mrs. Mardones' citizen father recently had filed a petition for a "third preference" immigrant visa on Mrs. Mardones' behalf, and that the petition had been approved by the INS. Mrs. Mardones was entitled to be included in the "third preference" category by reason of her status as the married daughter of a United States citizen. See INA §203(a)(3), 8 U.S.C. §1154(a)(1)(A)(i); 8 C.F.R. §204.2(d). Approval of the petition meant, in substance, that Mrs. Mardones could begin the process of obtaining lawful immigrant status as soon as an immigrant visa became available in that category under a quota system established by Congress. SeeINA §204(a)(1)(A)(i), 8 U.S.C. § 1153(a)(3). Availability of a visa in that category would depend on whether the "priority date" assigned to Mrs. Mardones had been reached on a waiting list maintained by the Department of State. See 8 C.F.R. §245.1(g); 22 C.F.R. §§42.51 42.55. Mr. Mardones, as Mrs. Mardones's spouse, would be entitled to the same immigrant status and the same order of consideration as his wife pursuant to INA §203(d), 8U.S.C. §1153(d).
At the December 13, 1993 hearing, petitioners agreed to drop their requests for suspension of deportation and asylum in exchange for the government's agreement to postpone voluntary departure until a full year later, December 13, 1994. It was anticipated that during this time period, petitioners would be able to secure lawful immigrant status, mooting the deportation proceeding against them.
The IJ agreed to this arrangement, warning petitioners that in view of the lengthy departure period, it would be unlikely for them to receive any further extension from the INS. The IJ emphasized also that should petitioners fail to depart by the deadline, the order of voluntary departure automatically would change to an order of deportation and, pursuant to INA §242B(e)(2)(A), 8 U.S.C. §1252b(e)(2)(A) (repealed 1997), petitioners would be subject to a five-year ban on seeking certain forms of relief - including adjustment or change of status to permanent legal resident. The IJ issued these warnings in English and Spanish, orally and in writing, and petitioners indicated that they understood.
In late 1994, with their departure deadline a mere eleven days away, Mrs. Mardones' priority number still had not become current. Petitioners therefore requested a six-month extension from the INS. The request emphasized petitioners' belief that Mrs. Mardones' priority number would become current within a month or two, and adverted to the enactment of a new law, INA §245(i), 8U.S.C.§1255(i), permitting aliens who were for the first time in an unlawful immigration status to seek adjustment of their status without first departing from the United States as petitioners had been required to do.
The INS did not respond to the request, the December 13 deadline came and went, and petitioners remained in the United States. Orders of deportation were therefore automatically entered against them.
Six months later, in June 1995, with Mrs. Mardones' priority date at last having become current, petitioners moved to reopen their deportation proceedings in order to permit petitioners to seek adjustment of status while remaining in the United States. Petitioners' motion faced a significant obstacle, however, in the form of INA §242B(e)(2)(A), which at the time provided:
[A]ny alien allowed to depart voluntarily under section 1254(e)(1) of this title . . . 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)1 for a period of 5 years after the scheduled date of departure . . . .
8 U.S.C. §1252b(e)(2)(A) (footnote added). Because adjustment of status pursuant to INA §245(a) is among the forms of relief subject to INA §242B(e)(2)(A)'s five-year ban, seeINA §242B(e)(5)(C), 8 U.S.C. §1252b(e)(5)(C) (repealed 1997), petitioners' motion to reopen their deportation proceedings in order to obtain such relief a mere six months after missing their scheduled date of departure was barred unless petitioners could satisfy the "exceptional circumstances" requirement. The statute itself explained that "[t]he 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." INA §242B(f)(2), 8 U.S.C. §1252b(f)(2) (repealed 1997).
Petitioners asserted that the "exceptional circumstances" requirement was satisfied in their case because: (1) the enactment of INA §245(i) in the fall of 1994 enabled petitioners to seek adjustment without first departing the United States; (2) the INS never responded to petitioners' request for an extension of their deadline for voluntary departure; and (3) petitioners were longtime United States residents with three children attending school here.
As a preliminary matter, the IJ granted petitioners' motion for a stay of deportation. Then, on May 13, 1996, the IJ granted petitioners' motion to reopen their deportation proceedings. On the crucial question of whether petitioners had demonstrated "exceptional circumstances," the IJ ruled:
[T]he addition of INA §245(i), [enabling illegal aliens to seek adjustment without first departing the United States,] was an "exceptional circumstance" which should excuse the [petitioners'] failure to depart during their period of voluntary departure, and should not be an impediment to their seeking adjustment of status in this country.
Two weeks later, the IJ granted petitioners' request for adjustment of status to that of permanent legal residents.
The INS appealed to the Board of Immigration Appeals ("BIA"), arguing that the IJ erred in concluding that the enactment of INA § 245(i) constituted an "exceptional circumstance." On August 5, 1998, the BIA agreed with the INS, vacating the IJ's decisions to reopen the proceeding and to adjust petitioners' status. The BIA specifically rejected the suggestion that "exceptional circumstances" were...
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...(legal error reviewed de novo); Iavorski, 232 F.3d at 128 (“We review the BIA's conclusions of law de novo.” (citing Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999))). In sum, our review of denials of motions to reopen, as Congress intended, “encompass[es] the same types of issues that......