Obale v. Attorney General of the U.S., 05-1109.

• Decision Date: 22 June 2006
• Docket Number: No. 05-1109.,05-1109.
• Citation: 453 F.3d 151
• Parties: Ayuk Ako OBALE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Third Circuit

Page 151

453 F.3d 151

Ayuk Ako OBALE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES.^*

No. 05-1109.

United States Court of Appeals, Third Circuit.

Argued December 13, 2005.

June 22, 2006.

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John L. Sesini (Argued), Milwaukee, WI, for Petitioner.

Linda S. Wernery, John M. McAdams, Jr. (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before SLOVITER, SMITH, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this petition for review from a final order of removal entered by the Board of Immigration Appeals ("BIA") the petitioner, Ayuk Ako Obale ("Obale"), argues that the decision of the BIA was not supported by substantial evidence. She also moves for a stay of the voluntary departure period. Before we consider the merits of the stay request, we must decide the threshold issue of whether we have jurisdiction to issue the stay.

I.

Obale is a twenty-eight-year-old native and citizen of Cameroon who was admitted to the United States on or about November 29, 1997 on a non-immigrant, F-1 visa. She overstayed her visa, which expired on June 1, 1999. On July 3, 2002, the Government issued a Notice to Appear charging Obale with removability from the United States under section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"). Obale admitted that she was removable as charged and sought relief in the forms of asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied Obale's applications for relief but granted her a sixty-day period to voluntarily depart before an order for removal to Cameroon would take effect.

The BIA affirmed the IJ's decision without opinion, and granted Obale a thirty-day voluntary departure period from the date of its order. Two days before expiration of the period in which Obale could voluntarily depart, she sought review in this court of the BIA decision as well as a stay of removal and of the thirty-day period for voluntary departure pending appellate review. This court granted Obale's motion for a stay of removal, but referred the motion for stay of voluntary departure to a merits panel to resolve the question of our jurisdiction to grant such a stay.

II.

The question of our jurisdiction to stay the remaining two days of the thirty-day period in which Obale must voluntarily depart is one of first impression for this court.¹ As we noted in Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir.2005), the Attorney General will grant an alien voluntary departure as an alternative to removal under certain circumstances.² Permission for voluntary departure is significant because it allows the alien to depart the United States at his or her own expense without being subject to the penalties and restrictions that removal imposes. An alien who is removed may not reenter the United States without the Attorney General's permission for ten years. Id. at 279. In contrast, an alien who is granted voluntary departure may reenter the United States once he or she has obtained proper documentation. Id. The Government contends that we do not have jurisdiction over Obale's motion to stay the period of voluntary departure because "the authority to reinstate or extend the privilege of voluntary departure is solely within the discretion of the Attorney General." Resp't Letter Mem. dated Jan. 11, 2006, at 4.

No extensive citation is needed for the principle that "[t]he jurisdiction of the Courts of Appeal is limited to that conferred by statute." Vineland Chem. Co. v. United States, EPA, 810 F.2d 402, 405 (3d Cir.1987). Thus, our jurisdiction over Obale's motion, if we have it, must be conferred by the INA or other relevant statute. See Union Switch & Signal Div. Am. Standard Inc. v. United Elec., Radio and Mach. Workers Local 610, 900 F.2d 608, 612 (3d Cir.1990). Although a statutory basis for jurisdiction is required, we have stated that "case law caution[s] this court not to construe appellate review provisions too narrowly." Williams v. Metzler, 132 F.3d 937, 943 (3d Cir.1997) (alteration in original) (citation and internal quotation marks omitted). Moreover, "[t]he presumption of judicial review in the face of statutory silence has become a part of the fabric of the Administrative Procedure Act." United States v. Herman, 589 F.2d 1191, 1210 (3d Cir.1978) (Garth, J., concurring in part and dissenting in part). To support a finding that Congress intended to preclude judicial review of an administrative action, there must be "clear and convincing evidence," such as that "provided by the language of the statute." Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (citation and internal quotation marks omitted).

When reviewing agency decisions, courts of appeals have jurisdiction "of the proceeding." 28 U.S.C. § 2349(a).³ In the immigration context, there are numerous exceptions to this general grant of jurisdiction. The INA expressly precludes our jurisdiction to review either a denial or a grant of a request for voluntary departure. See 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 ..., nor shall any court order a stay of an alien's removal pending consideration of any claim with respect to voluntary departure."); see also 8 U.S.C. § 1252(a)(2)(B)(I) ("[N]o court shall have jurisdiction to review ... any judgment regarding the granting of relief under section... 1229c[.]") In addition, this court has held that it does not have jurisdiction to reinstate the period of voluntary departure after it has expired. Reynoso-Lopez, 369 F.3d at 280.

These statutory provisions may suggest that we have no jurisdiction to review a motion for a stay of voluntary departure, but they do not so provide explicitly. "[W]henever Congress wanted to oust the jurisdiction of the courts, it not only knew how to do it but did so in no uncertain terms." Arrow Trans. Co. v. Southern Ry. Co., 372 U.S. 658, 679, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (Clark, J., dissenting); see also Chmakov v. Blackman, 266 F.3d 210, 214 (3d Cir.2001). It follows that we have jurisdiction over all matters related to a particular proceeding except where Congress has explicitly stated otherwise. Given that Congress has explicitly stated the courts of appeals may not hear appeals from grants or denials of voluntary departure, it is reasonable to conclude that if Congress wished to strip this court of jurisdiction to grant stays of voluntary departure, it would have done so. Inasmuch as Obale's petition for a stay of the period of voluntary departure is a part of the proceedings below and Congress has not explicitly denied this court jurisdiction over such a motion, we conclude, in accordance with the majority of the courts of appeals that have considered the issue, see note 1 supra, that we have jurisdiction over Obale's motion.

The Government argues that we answered the question of our jurisdiction in Reynoso-Lopez, where we held that we do not have jurisdiction to reinstate the period of voluntary departure after it expires. According to the Government, the fact that Obale characterizes her request as a "stay" of the voluntary departure period, rather than a reinstatement or extension, is irrelevant.⁴

We reject the Government's contention that our holding in Reynoso-Lopez governs this case. In Reynoso-Lopez, we addressed the narrow issue of whether a court may extend the period of voluntary departure after it had terminated. We noted that regulations promulgated pursuant to IIRIRA clearly state that "`[a]uthority 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.'" 369 F.3d at 280 (alteration in original) (quoting 8 C.F.R. 1240.26(f)). We concluded that under IIRIRA, the executive branch is given the sole authority to reinstate a voluntary departure period after it has expired.

We considered the effect of Reynoso-Lopez in Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.2005), where we noted its limited holding. In Kanivets, we held that the alien's timely motion to reopen tolled the voluntary departure period until the BIA decided the merits of the case. We stated, "Reynoso-Lopez ... is ... distinguishable.... That is a different situation from that presented here where we hold that tolling applies during the period of time that the BIA deliberates on a timely motion to reopen." Id. at 335. To the extent that Reynoso-Lopez contains language that suggests that its analysis extends to motions for stays of voluntary departure, 369 F.3d at 283, such language is dicta.⁵ The language in Reynoso-Lopez that discusses the similarities between tolling and reinstatement is not necessary to the holding in that case.

Unlike the power to extend or reinstate the voluntary departure period, the power to stay it is part of the federal courts' traditional equitable powers. "The power to stay is incidental to the power inherent in every court to dispose of cases so as to promote their fair and efficient adjudication." United States v. Breyer, 41 F.3d 884, 893 (3d Cir.1994). "Unless otherwise provided by statute, all the inherent equitable powers of the [federal courts] are available for the proper and complete exercise of [the courts'] jurisdiction." Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); see also Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 137 (3d Cir. 2000) (citation and quotation marks omitted) (stating that "absent a clear congressional command to the contrary, federal courts retain their authority to...