Ugokwe v. U.S. Atty. Gen., No. 05-15237.

• Decision Date: 28 June 2006
• Docket Number: No. 05-15237.
• Citation: 453 F.3d 1325
• Parties: Mildred Chikodili UGOKWE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

453 F.3d 1325

Mildred Chikodili UGOKWE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 05-15237.

United States Court of Appeals, Eleventh Circuit.

June 28, 2006.

Jason A. Dzubow, Law Office of Jason A. Dzubow, Washington, DC, for Petitioner.

Russell J.E. Verby and David V. Bernal, U.S. Dept. of Justice, Washington, DC, for Respondent.

Nadine K. Wettstein, American Immigration Law Foundation, Washington, DC, for American Immigration Law Foundation, Amicus Curiae.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before ANDERSON, BARKETT and BOWMAN^*, Circuit Judges.

BARKETT, Circuit Judge:

Mildred Chikodili Ugokwe petitions for review of an order by the Board of Immigration Appeals ("BIA") denying her motion to reopen removal proceedings. She argues that both the immigration judge ("IJ") and the BIA erred by denying her timely filed motion to reopen, without reaching the merits of that motion, based solely on her failure to depart during the time allowed for voluntary departure. She claims the BIA's determination relied on legal authority that has since been superceded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, div. C., 110 Stat. 3009 ("IIRIRA").

BACKGROUND

Mildred Ugokwe is a citizen of Nigeria who was admitted to the United States as a nonimmigrant visitor on February 3, 1997. On August 28, 2003, the Department of Homeland Security issued a Notice to Appear, alleging that Ugokwe was subject to removal from the United States for having overstayed her visa, pursuant to the Immigration and Naturalization Act ("INA") § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). The Department of Homeland Security further alleged that Ugokwe was removable as an alien who, at the time of admission into the United States, was inadmissible under existing law for want of a valid entry document, pursuant to INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

At a hearing on April 30, 2004, the IJ sustained the first allegation of removal, and granted Ugokwe's application for voluntary departure, ordering her to leave the country by August 30, 2004.¹ On July 28, 2004, still in the voluntary departure period, Ugokwe filed a timely motion to reopen her proceedings and a motion to stay the order of voluntary departure based on changed circumstances, namely her intervening marriage to a United States citizen. The IJ did not rule on Ugokwe's motion until after the voluntary departure deadline had passed, and then denied Ugokwe's motion to reopen based on (1) her failure to depart during the voluntary departure period, and (2) the fact that under the rule established in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd sub. nom. Shaar v. INS, 141 F.3d 953 (9th Cir.1998), the filing of a motion to reopen during the voluntary departure period "does not toll or extend the voluntary departure period." Ugokwe appealed the IJ's decision to the BIA, which adopted and affirmed the decision of the IJ. This petition for review ensued.

DISCUSSION

Ugokwe argues that both the IJ and BIA erred by denying her timely filed motion to reopen based on changed circumstances solely on the grounds that she had failed to depart during the voluntary departure period. Specifically, she argues that both the IJ and the BIA improperly relied on legal authority that has been superceded by IIRIRA, and that her failure to depart was based on the IJ's failure to address her petition until the period for voluntary departure had passed.² The IJ found that filing a motion to reopen during the pendency of a voluntary departure period does not toll or extend the voluntary departure period, relying on Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), and ultimately held that:

After reviewing the evidence, the Court finds that Respondent did not depart when required. Therefore, she is ineligible for relief until ten years after the date of her scheduled departure. INA § 240(b)(d). At the conclusion of proceedings against Respondent, the Court granted her one hundred twenty days to depart, the maximum amount of time allowed. INA § 240(b)(b)(2); 8 C.F.R. § 1240.26(e)(2004). The Court informed Respondent of the penalties for failure to depart and the forms of relief for which she would be precluded is she violated the order of voluntary departure. INA § 240B(d). Because Respondent did not leave within the requisite period, and because she was informed of the penalties that would arise from such action, she is barred from adjusting his [sic] status for ten years from the date of her scheduled departure.

In adopting the IJ's decision, the BIA noted that this case was controlled by INA § 240B(d), 8 U.S.C. § 1229c(d), which details the civil penalties for failure to leave during the voluntary departure period,³ and 8 C.F.R. § 1240.26(e), the federal regulation that sets out the amount of time an IJ may grant for voluntary departure.⁴

The BIA, however, did not address the statutory provisions relating to motions to reopen. It should have done so because this case implicates not only Ugokwe's voluntary departure, but the interaction between rules pertaining to voluntary departure and Ugokwe's right under the INA to file a motion to reopen. In IIRIRA, Congress altered the statutory framework governing both of these subjects.⁵ Under the INA as it exists today, Ugokwe is statutorily permitted to file one motion to reopen proceedings, but this motion must be filed within 90 days of the order of removal.⁶ INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). Under 8 C.F.R. § 1003.2(d), however, if Ugokwe were to leave the United States for any reason — including voluntary departure — while a motion to reopen was pending, that departure would constitute a withdrawal of the motion to reopen.⁷ The post-IIRIRA provision on voluntary departure further states that "permission to depart voluntarily . . . shall not be valid for a period exceeding 120 days." 8 U.S.C. § 1229c(a)(2)(A).

The question before us is therefore whether, under IIRIRA, the BIA's failure to rule on a petitioner's motion to reopen filed prior to the expiration of her voluntary departure period authorizes the BIA to decline to rule on the merits of the motion to reopen. This issue of first impression in our Circuit requires an examination of the interaction of the voluntary departure and motion to reopen statutes. We note that four of our sister circuits have previously addressed this issue — and that three of them have held that the BIA's refusal to rule on the merits of the motion to reopen impermissibly "deprives the motion to reopen provision of meaning by eliminating the availability of such motions to those granted voluntary departures." Azarte v. Ashcroft, 394 F.3d 1278, 1288 (9th Cir.2005).

In Azarte, the first decision to address this issue, the IJ denied cancellation of removal but granted respondents' motion for voluntary departure. Id. at 1280. The BIA affirmed, and permitted respondents to remain in the country until May 22, 2002. Seven days prior to the expiration of the voluntary departure period, the respondents filed a motion to reopen based on changed circumstances. Id. at 1280-81. The BIA did not act on the motions to reopen prior to the expiration of the voluntary departure period and then "concluded that, because the petitioners failed to depart voluntarily as specified, they were ineligible for cancellation of removal." Id. at 1281.

The Ninth Circuit surveyed the relevant statutory provisions addressing motions to reopen, and noted that they did not "establish a time by which the BIA must make its decision regarding a motion to reopen." Id. at 1284. With regard to voluntary departure, the court then observed that "IIRIRA drastically limited the time allowed for voluntary departure." Id. at 1285. Because of the changes IIRIRA created, the Azarte court perceived that Matter of Shaar, 21 I & N Dec. 541, could no longer "control [its] decision in this case," because "the rationales that underlay Shaar are no longer applicable after IIRIRA." Azarte, 394 F.3d at 1286 ("Shaar's statutory interpretation concerned only a single statutory provision-a provision relating to voluntary departure-which has now been superceded.").

Azarte noted that "the statutory interpretation of the motion to reopen and voluntary departure provisions must be such that both provisions have force." Id. at 1288. The BIA's interpretation would deprive respondents in Azarte of their statutory right to have a motion to reopen considered, and so the court concluded that

An approach more consistent with the statute as a whole is to toll the voluntary departure period when an alien, prior to the expiration of his voluntary departure period, files a timely motion to reopen. . . . Such an interpretation would effectuate both statutory provisions. IJs and the BIA could still grant voluntary departure periods up to 60 days only, but, then, if that period were tolled, they would retain the authority Congress intended: to determine one non-frivolous motion to reopen.

Id. The Azarte court also relied on a number of other canons of statutory construction — notably avoiding absurd results and construing deportation statutes in favor of aliens — to reach its conclusion that respondents must be afforded an opportunity to receive a ruling on the merits of their motion to reopen. Accordingly, the court remanded the motion to reopen to the BIA with instructions to consider it on the merits. Id. at 1289.

Since Azarte, three other courts have considered this issue. In Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir.2005), the Eighth Circuit adopted the reasoning of Azarte in a situation where Sidikhouya filed a motion to reopen the day before the expiration of his voluntary departure period. Id. at 951. The court in Sidikhouya likewise noted the absurdity of the BIA's interpretation — which is the same position taken by the BIA here:

Under current BIA interpretations, if an alien...