De Martinez v. Ashcroft, 02-73939.

• Decision Date: 16 April 2004
• Docket Number: No. 02-73939.,02-73939.
• Citation: 363 F.3d 1022
• Parties: Maria Isabel Gonzalez DE MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.3d 1022

Maria Isabel Gonzalez DE MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73939.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2004.

Filed April 16, 2004.

Frank P. Sprouls, Ricci & Sprouls, San Francisco, CA, for the petitioner.

Thomas K. Ragland and Patricia A. Smith, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

Before: ALARCÓN, BEEZER, and W. FLETCHER, Circuit Judges.

ALARCÓN, Circuit Judge:

Maria Isabel Gonzalez De Martinez petitions for review of the Board of Immigration Appeals ("BIA")'s decision denying her motion to reopen immigration removal proceedings to apply for an adjustment of status on the basis of her marriage to a United States citizen and the pending visa application filed by her husband. Mrs. De Martinez argues that she was not provided adequate notice of the penalties for failure to depart voluntarily, that two immigration statutes impermissibly conflict, and that she was deprived of due process because aliens who are not eligible for voluntary departure irrationally receive more favorable treatment.

We deny Mrs. De Martinez's petition for review of the BIA's decision because we conclude that her contentions lack merit.

I

Mrs. De Martinez is a citizen of Mexico. She entered the United States without inspection in 1987, but was unable to prove her continuous presence prior to 1990. Mrs. De Martinez filed an asylum application on June 2, 1997. She was served with a notice to appear on July 21, 1997. She admitted that she entered illegally and she conceded removability. Mrs. De Martinez was granted time to file an application for cancellation of removal. The immigration judge ("IJ") denied her application for cancellation of removal because Mrs. De Martinez had not established ten years of physical presence in the United States.

She appealed the denial of her application to the BIA. The BIA affirmed the IJ's decision on June 6, 2002, and granted her voluntary departure within thirty days. The BIA's written order explained the penalties for failure to depart from the United States within thirty days. Mrs. De Martinez did not seek direct review of the BIA's decision upholding the IJ's removal order or the denial of her application for cancellation of removal. Nor did she seek a stay of the voluntary departure period granted by the BIA.

Mrs. De Martinez filed a motion to reopen for adjustment of status on August 5, 2002, based on a decision of the BIA in an unrelated case. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256, 2002 WL 393173 (BIA 2002) (holding that a motion to reopen may be granted to provide an alien with the opportunity to pursue an application for an adjustment of status when a five-part test is satisfied). Mrs. De Martinez alleged in her motion to reopen that she is married to a United States citizen. Her husband filed an application on December 11, 1997, requesting immigrant status on her behalf pursuant to 8 U.S.C. § 1154(a) and 8 U.S.C. § 1151(b)(2)(A)(i).

In her motion to reopen, Mrs. De Martinez argued that In re Velarde-Pacheco held that such an unapproved visa application provides sufficient grounds to reopen removal proceedings. The BIA denied the motion to reopen because she failed to leave the United States within thirty days of the effective date of its order granting voluntary departure. Mrs. De Martinez filed a timely petition for review.

II

We have subject matter jurisdiction to hear a petition for review of a decision of the BIA denying a motion to reopen. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003) (holding that the court's jurisdiction to review denials of motions to reopen was not eliminated by statutory restrictions pertaining to voluntary departure and other discretionary relief); cf. Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir.1997) (holding that the court does not have jurisdiction to review an order denying a motion to reopen where an alien has been convicted of certain crimes).

We review the denial of a motion to reopen for abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Pure questions of law raised in a petition to review a decision of the BIA are reviewed de novo. Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999).

Mrs. De Martinez contends that the BIA abused its discretion in denying her motion to reopen because she did not receive actual notice of the penalties for failing to depart. She concedes that the BIA's order was mailed to her attorney.

The immigration laws applicable in this matter were revised and reorganized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Prior to the enactment of IIRIRA, the penalties for failure to depart did not apply to an alien absent written notice in English and Spanish, and oral notice to the alien in a language he or she understood. See 8 U.S.C. § 1252b(e)(2)(B) (repealed 1996).¹ At oral argument, Mrs. De Martinez improperly relied upon our decision in Ordonez v. INS, 345 F.3d 777 (9th Cir. 2003), in contending that she did not receive adequate notice of the penalties for failing to depart voluntarily. We held in that matter that the transitional rules of IIRIRA applied to Mr. Ordonez "because deportation proceedings were commenced ... prior to April 1, 1997, and the final order of deportation was entered after October 30, 1996." Id. at 779 n. 1. The transitional rules of IIRIRA "provide that, for the most part, the new provisions of IIRIRA do not apply to aliens against whom deportation proceedings were commenced prior to its effective date." Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir.2002). In Ordonez, we held that adequate oral notice was required pursuant to the pre-IIRIRA version of 8 U.S.C. § 1252b. 345 F.3d at 783-84. Our holding in Ordonez does not apply in this matter because removal proceedings against Mrs. De Martinez commenced on July 21, 1997, after the effective date of IIRIRA.

In IIRIRA, Congress provided that "the order permitting the alien to depart voluntarily shall inform the alien of the penalties" for failure to depart. 8 U.S.C. § 1229c(d).² There is no longer an explicit statutory remedy if the order fails to "inform the alien of the penalties." Compare 8 U.S.C. § 1229c(d) (2003) (requiring notice by order without conditioning penalties on notice) with 8 U.S.C. § 1252b(e)(2)(B) (repealed 1996) (applying penalties only if statutory oral and written notice is provided). We need not address whether such an alleged defect in the order would permit relief after a failure to depart, as did pre-IIRIRA law, because in this case the order clearly states:

NOTICE: If the respondent fails to depart the United States within the time period specified, or any extensions granted by the district director, the respondent shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Immigration and Nationality Act. See section 240B(d) of the Act.

The plain language of 8 U.S.C. § 1229c(d) requires only that the order inform the alien of the penalties for failure to depart voluntarily. Service of an order to the alien's attorney of record constitutes notice to the alien. See Arreaza-Cruz v. INS, 39 F.3d 909, 911 (9th Cir.1994) (holding that service of a final deportation order to the alien's attorney was sufficient notice to the alien pursuant to 8 C.F.R. § 292.5). Mrs. De Martinez received adequate notice pursuant to 8 U.S.C. § 1229c(d).

III

Mrs. De Martinez further argues that the statutory penalty for failure to depart prohibiting certain relief conflicts with the statutory requirement to file a motion to reopen within ninety days of a final order of removal. She proposes that "non-frivolous" motions to reopen filed within ninety days, "presenting exceptional circumstances," should operate to "forgive the failure to depart." Opening Brief on Petition for Review at 12.

At the conclusion of removal proceedings, an alien may be granted permission to leave the United States within a specified time period. Congress has mandated that "permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days." 8 U.S.C. § 1229c(b)(2). An alien who fails to depart voluntarily within the specified time period is subject to a civil penalty of $1,000 to $5,000, and is ineligible for a period of ten years for relief under §§ 1229c, 1229b, 1255, 1258, and 1259. 8 U.S.C. § 1229c(d). The Department of Homeland Security ("DHS") has implemented voluntary departures in 8 C.F.R. § 1240.26,³ allowing an initial grant of up to sixty days, followed by extensions by certain DHS officials for a total of not more than sixty days, as permitted by statute.

Congress has also established that"an alien may file one motion to reopen proceedings" that "shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material." 8 U.S.C. § 1229a(c)(6)(A), (B). "The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(6)(C)(i).

We applied analogous pre-IIRIRA immigration law in Shaar to decide that a motion to reopen that is acted upon by the BIA after an alien has failed to depart within the specified time period must be denied if the relief requested is unavailable as a result of the failure to depart. 141 F.3d at 959. The Shaars were found deportable because they failed to leave the United States when they were supposed to, after entering as nonimmigrant visitors. Id. at 955. The Shaars were permitted more than a year to depart voluntarily, but waited until two days before their departure date to file a motion to reopen. Id. After filing...