Thapa v. Gonzales
| Decision Date | 16 August 2006 |
| Docket Number | Docket No. 06-1973-ag Con [06-1477-ag Lead]. |
| Parties | Deu THAPA, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Justin T. Conlon (Michael J. Boyle, of counsel), Law Offices of Michael Boyle, North Haven, CT, for Petitioner.
David S. Rubenstein, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, of counsel) for Michael J. Garcia, United States Attorney for the Southern District of New York, for Respondent.
Before SACK, KATZMANN, Circuit Judges, and MURTHA, District Judge.*
This motion presents an issue of first impression in this Circuit: whether we have jurisdiction under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., to stay an order of voluntary departure issued by an immigration judge or the Board of Immigration Appeals. Having concluded that we do, and that the petitioner here, Deu Thapa, had met the traditional standards for a stay, we previously granted the motion for a stay in a short order stating that an opinion would follow. We now explain the reasoning behind that decision.
We hold that we have the authority under 28 U.S.C. § 2349(b), as incorporated by reference in 8 U.S.C. § 1252(a)(1), to stay an agency order pending our consideration of a petition for review on the merits, and that nothing in the Immigration and Nationality Act or its implementing regulations strips us of this authority with respect to orders of voluntary departure. We also hold that a BIA order granting voluntary departure with an alternate order of removal is a final order of removal subject to judicial review under 8 U.S.C. § 1252. Because, under the customary framework for a stay, the balance of hardships tips decidedly in Thapa's favor, a stay of his voluntary departure order is warranted here.
The complete administrative record has not been filed with the Court as part of this motion, but the following is clear from the materials submitted by the parties. Deu Thapa, a native and citizen of Nepal, was apprehended by the United States Customs and Border Protection at White River Junction, Vermont, in early 2004. At that time, as the Immigration and Naturalization Service ("INS") subsequently alleged in a Notice to Appear ("NTA"), Thapa was unable to provide a document demonstrating his legitimate entry into the United States, nor was he able to establish the date, place, or manner of his entry into the United States.1 Accordingly, the INS charged that Thapa was subject to removal because of his improper entry into the United States. In a subsequent NTA, the INS amended that charge to constitute overstaying a nonimmigrant visa.
During a hearing before Immigration Judge Michael W. Straus (the "IJ"), Thapa, through counsel, denied the allegation that his entry into the United States was improper but admitted the allegation that he overstayed his visa. However, Thapa sought relief from removal by challenging the validity of the NTA, arguing that it was improperly issued because it was unsigned. He also argued that the issuance of the NTA was an abuse of discretion — why is not clear — and that he was questioned at the border by an agent unauthorized by regulation to question him. In addition, Thapa moved for a continuance of the hearing so that the Connecticut Department of Labor would have time to adjudicate his request for labor certification, which, if approved, would allow him to remain in the United States and work legally. Finally, in the alternative, Thapa moved for voluntary departure, which would allow him to leave the United States willingly instead of being forcibly removed by the United States government.
The IJ rejected Thapa's argument that the NTA was improperly issued. The IJ noted that there were actually three NTAs in the record: the first one, which was unsigned; a second one, signed by Senior Patrol Agent Trahan on behalf of John C. Pfeiffer, Patrol Agent in Charge in Newport, Vermont; and a third one signed by Pfeiffer himself. The IJ concluded that "the critical NTA, i.e. the one that was filed with the Immigration Court, was signed by Mr. Pfeiffer" and was therefore proper. The IJ dismissed Thapa's argument that proper service of the NTA would have been effected only if Thapa had been personally served with the NTA signed by Pfeiffer, noting that the Immigration and Nationality Act ("INA") requires personal service of the NTA only if it is practical, and observing that the language of the unsigned NTA served on Thapa and the one signed by Pfeiffer was identical. The IJ also rejected Thapa's other concerns about the issuance of the NTA and his questioning at the boarder.
Further, the IJ declined to continue the hearing pending the determination of Thapa's labor certification. The IJ explained that the labor certification had been filed eight months before, that it would be speculative to conclude that the certification would be granted, and that there was not a sufficient basis in the record to continue the hearing.2
The IJ did, however, grant Thapa's alternative request for voluntary departure, ordering Thapa's departure within 60 days and payment of a $1,000 voluntary departure bond. The order provided that, if Thapa did not comply with these requirements, the voluntary departure order would convert, without further notice, to a final order of removal to Nepal.
Thapa appealed to the Board of Immigration Appeals ("BIA"). By order dated February 28, 2006, the BIA affirmed in an unpublished per curiam decision signed by one member of the Board. The BIA agreed with the IJ that Thapa had not established that he was improperly placed in removal proceedings, and in any event that Thapa had not established the requisite prejudice that is necessary to prevail on a due process claim.
As to Thapa's argument that the IJ should have agreed to a continuance of his hearing pending determination of the labor certification, the BIA concluded that "an open-ended continuance to await adjudication of a pending labor certification is not appropriate when there is no indication of how long it will take to conclude adjudication of the petition, and the basis for the continuance is speculative because there is no certainty that the petition will receive favorable consideration." The BIA specifically declined to extend its decision in Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) — which, it explained, "indicates that a continuance may be appropriate in the case of an unadjudicated family based petition" — to apply to employment-based visa petitions, on the grounds that family reunification is the goal of the INA in a way that immigration for employment purposes is not. Moreover, the BIA explained, such a preference is reasonable because, among other grounds, the family bond is permanent while an employment relationship is temporary. The BIA failed to address the IJ's order of voluntary departure.
Thapa filed a petition for review of the BIA's order in this Court. Before any action was taken on that petition, however, the BIA reopened proceedings sua sponte after realizing that it had neglected to reinstate the voluntary departure order. In a reissued decision dated April 10, 2006 the BIA restated its previous conclusions and additionally ordered Thapa to voluntarily depart within 60 days from the date of the order (or any extension of that time as may be granted by the Department of Homeland Security). Like the IJ's order before it, this order provided that the order of voluntary departure would convert automatically into an order of removal if Thapa did not timely depart.
Shortly thereafter, on April 19, 2006, Thapa moved this Court for voluntary dismissal of his petition for review of the first BIA order, which motion was granted. Simultaneously, he filed a new petition for review of the second BIA order and also moved for a stay of the BIA's order of voluntary departure. A month later, on May 18, 2006, Thapa submitted a separate motion for a stay of removal. We heard oral argument on these motions on May 30, 2006, and issued our order granting Thapa's motion for a stay of the BIA's order of voluntary departure on June 7, 2006. A briefing schedule for the petition on the merits has not yet been set.
The existence of voluntary departure enables aliens identified by the government as being illegally present in the United States to leave the country of their own accord without being forcibly removed by the government. The statute provides for two types of voluntary departure, one available in lieu of removal proceedings or before the conclusion of removal proceedings, see 8 U.S.C. § 1229c(a), and the second available after removal proceedings have been completed, see 8 U.S.C. § 1229c(b).
Almost any alien — with the exception of those who have been convicted of an aggravated felony and those who have engaged in terrorist activities or are associated with terrorist organizations — is eligible for the first type of voluntary departure. 8 U.S.C. § 1229c(a)(1). Qualifying aliens may receive a grant of voluntary departure from the Attorney General for a period of up to 120 days, although in certain circumstances an alien may obtain a waiver from this time frame for medical treatment. 8 U.S.C. § 1229c(a)(2). The Attorney General may but need not require the alien to post a voluntary departure bond that will be returned after proof that the alien has left the United States within the required time frame. 8 U.S.C. § 1229c(a)(3).
The second type of voluntary departure is more restrictive. In order for an alien to obtain voluntary departure in lieu of removal at the conclusion of removal proceedings, an IJ must find that (1) the alien was physically present in the United States for at least a year before the Notice to Appear was served; (2) the...
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