Shaar v. I.N.S.

• Citation: 141 F.3d 953
• Decision Date: 15 April 1998
• Docket Number: No. 96-70619,96-70619
• Parties: 98 Cal. Daily Op. Serv. 2764, 98 Daily Journal D.A.R. 3803 Arie SHAAR; Helina Shaar; Shay Moshe Shaar, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 953

141 F.3d 953

98 Cal. Daily Op. Serv. 2764, 98 Daily Journal

D.A.R. 3803

Arie SHAAR; Helina Shaar; Shay Moshe Shaar, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-70619.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 7, 1997.

Decided April 15, 1998.

Russell L. Marshak, Popkin, Shamir & Golan, Los Angeles, California, for petitioners/appellants.

Bridgid E. Dowdal and Hugh G. Mullane, United States Department of Justice, Civil Division, Washington, DC, for respondent.

Petition for Review of Order of the Board of Immigration Appeals. INS. Nos. A72-519-787 A72-519-788 A72-519-789.

Before: BROWNING, BRUNETTI and FERNANDEZ, Circuit Judges.

Opinion by Judge Fernandez; Dissent by Judge Browning.

FERNANDEZ, Circuit Judge:

After deportation proceedings against them had become final and they had been given the privilege of voluntary departure, Arie Shaar, his wife Helina Shaar, and their adult son Shay Shaar petitioned for reopening

of their case so that they could apply for suspension of deportation pursuant to 8 U.S.C. § 1254(a)(1). The Immigration Judge denied reopening because the Shaars had not departed during the allotted voluntary departure time, and the Board of Immigration Appeals upheld that decision, even though the Shaars had petitioned to reopen just before the time to voluntarily depart had expired. The Shaars have petitioned for review of that decision. We deny the petition.

BACKGROUND

The Shaars were permitted to enter this country as nonimmigrant visitors for pleasure on July 17, 1987 and were to depart by January 16, 1988. As is too often the case, they simply did not leave when they were supposed to, and thus avoided all normal immigration channels and stole a march on those who chose to proceed in the orderly manner provided by law.

However, by March 12, 1993, the Immigration and Naturalization Service had caught up with the Shaars and charged that they were deportable as overstays. See 8 U.S.C. § 1251(a)(1)(B). At a deportation hearing on August 19, 1993, they were found to be deportable, but the IJ exercised his discretion to permit them to voluntarily depart on or before April 18, 1994, and directed that they would be deported, if they did not depart by the agreed-upon date. See 8 U.S.C. § 1254(e). At that point, they were given oral and written warnings that they would not be eligible for certain forms of relief, including suspension of deportation, if they did not leave by the specified date. See 8 U.S.C. § 1252b(e)(2)(B). At a later time, the District Director of the INS extended the voluntary departure date to October 21, 1994.

By July 17, 1994, the Shaars had managed to remain here for seven years, and that raised the possibility that they could obtain suspension of deportation. See 8 U.S.C. § 1254(a)(1). They did not immediately apply for that relief. Instead, they waited until October 19, 1994--just two or three days before their scheduled departure date--to ask for it. They made no effort to seek an extension of the departure date, and by December 2, 1994, when their request to reopen was heard, the departure date had come and gone, but they were still here. Thus, their request to reopen was denied pursuant to 8 U.S.C. § 1252b(e)(2). The BIA dismissed their appeal, and this petition followed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208, 110 Stat. 3009 has repealed 8 U.S.C. § 1105a, but that removal of jurisdiction does not apply to this petition. See IIRIRA §§ 306(c), 309(a) and (c)(1).

We review denials of motions to reopen for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992). However, more than that is involved here because we are asked to construe provisions of the Immigration and Nationality Act. That raises issues of law, which we review de novo. See Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir.1997).

Having said that, however, we have not said quite enough because there can be no doubt that "Congress has entrusted the BIA with the administration of the [INA]." Mendoza v. INS, 16 F.3d 335, 337 (9th Cir.1994). Of course, if "Congress has directly spoken to the precise question at issue" there is little left to do. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). In Chevron, the Supreme Court went on to say:

If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether Id. at 842-43, 104 S.Ct. at 2781-82. In other words, we must not substitute our interpretation for a "reasonable interpretation" made by the agency and must accept that interpretation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844, 104 S.Ct. at 2782.

the agency's answer is based on a permissible construction of the statute.

These principles apply to our review of the BIA's construction of the INA. As we have said, "[w]e show considerable deference ... to the BIA's interpretation" of the INA, Mendoza 16 F.3d at 337, and "we defer to the [BIA's] interpretation unless it is 'arbitrary, capricious, or manifestly contrary to the statute,' " Pitcherskaia, 118 F.3d at 646 (citations omitted). With these glasses to peer through, we turn to look at and analyze the statute at hand.

DISCUSSION

A. The Statute. When the Shaars sought to reopen, they were faced with the provisions of 8 U.S.C. § 1252b(e)(2)(A), which reads:

Subject to subparagraph (B), any alien allowed to depart voluntarily under section 1254(e)(1) of this title or who has agreed to depart voluntarily at his own expense under section 1252(b)(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) for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively.

There is no question that the Shaars were given the notice required by § 1252b(e)(2)(B), so the "subject to" phrase, which opens the quoted section, need not be considered at this time. Moreover, there is no doubt that the suspension of deportation relief sought by the Shaars is one of the types of relief which is blocked by the section. See 8 U.S.C. § 1252b(e)(5).

The BIA ruled that § 1252b(e)(2)(A) precluded relief because by its plain words a person could not obtain that relief, if he had remained here "after the scheduled date of departure." We find no fault with that reading of the statute, for that is what the statute plainly says. In fact, the language could hardly be more clear. Only wrenching the words out of their normal channels could result in adding exceptions to them.

We must assume that Congress used the statutory words in the normal sense and with their ordinary meanings. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). In so doing, Congress directly said that an alien simply cannot garner the sought after relief, if the alien remained after the scheduled departure date, unless, of course, there were truly exceptional circumstances. We will visit the exceptional circumstance issue later, but for now it is quite clear that the Shaars did not depart on the scheduled date, even though nothing stopped them from doing so.

We have started with the language of the statute itself, as we must. See INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 589, 78 L.Ed.2d 401 (1984). Having found that language clear and unambiguous, we need go no further and, the Shaars' arguments notwithstanding, we need not even consider the legislative history. See Villegas-Valenzuela v. INS, 103 F.3d 805, 810 (9th Cir.1996); Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir.1996); Perroton v. Gray (In re Perroton ), 958 F.2d 889, 893 (9th Cir.1992). Here we do not face "rare and exceptional circumstances," which would require us to go beyond the statute. Perroton, 958 F.2d at 893. That is, there is no reason to look beyond the statute in a case, like this one, where "the result is not absurd." Tang, 77 F.3d at 1197. We should not attempt to construct some purpose or congressional intent from other materials. But, even looking further, we find nothing in the contemporaneous legislative history which would induce us "to question the strong presumption that Congress expresses its intent through the plain language it chooses." Cardoza-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. at 1213 n. 12.

Rather, it is clear that Congress desired to control the untoward delays which had developed in the immigration system, and to expedite proceedings to the extent reasonably possible. See Stone v. INS, 514 U.S. 386 Congress itself has narrowly defined what exceptional circumstances are, which underscores its serious concern about people who do not leave on the appointed date. It has provided 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." ¹ 8 U.S.C. § 1252b(f)(2). In no sense can the Shaars claim that the mere filing of a petition to reopen is as compelling as the circumstances confronting a person who is scheduled to leave but stays behind because...