Zazueta-Carrillo v. Ashcroft

• Decision Date: 13 March 2003
• Docket Number: No. 02-70259.,02-70259.
• Citation: 322 F.3d 1166
• Parties: Manuel ZAZUETA-CARRILLO, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

322 F.3d 1166

Manuel ZAZUETA-CARRILLO, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.

No. 02-70259.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2002.

Filed March 13, 2003.

As Amended April 25, 2003.

Kevin A. Bove, Escondido, CA, for petitioner Manuel Zazueta-Carrillo.

Robert D. McCallum, Jr., Assistant Atty. Gen., Civil Division, Washington, DC, David V. Bernal, Asst. Dir., Office of Immigration Litigation, Washington, DC, Barry J. Pettinato, Trial Attorney, Office of Immigration Litigation, Washington, DC, for respondent John D. Ashcroft.

On Petition for Review of an Order of the Board of Immigration Appeals. D.C. No. A74-439-262.

Before: CANBY, GOULD, and BERZON, Circuit Judges.

Opinion by Judge GOULD; Concurrence by Judge BERZON.

GOULD, Circuit Judge.

When the Board of Immigration Appeals (BIA) decides that an alien is removable from the United States, the BIA may have discretion under 8 U.S.C. § 1229c to grant the alien the privilege of "voluntary departure." Voluntary departure is a time period during which the alien may leave the United States voluntarily rather than be removed. In this case, we are asked to decide when that voluntary departure period begins to run. Does it begin when the BIA enters its order granting voluntary departure? Or does it begin when we conclude our review of the BIA's decision on an alien's status? Although we held in Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir.1988) (en banc), that the voluntary departure period begins to run on the latter date, Congress dramatically rewrote immigration law eight years after our decision. Congress's revisions have undermined the Contreras-Aragon holding, so it is proper for us to reexamine the question of when the voluntary departure period begins. We hold today that, after Congress's recent changes to immigration law, the voluntary departure period begins when the BIA enters its order granting voluntary departure.

I

Manuel Zazueta-Carrillo is a native and citizen of Mexico. He is removable from the United States because he was not properly admitted or paroled after inspection. When the Immigration and Naturalization Service sought to remove Zazueta-Carrillo, he applied for cancellation of removal under 8 U.S.C. § 1229b. The Immigration Judge denied his application. Zazueta-Carrillo appealed to the BIA. On July 20, 2001, the BIA affirmed the Immigration Judge's order, and, pursuant to 8 U.S.C. § 1229c, granted Zazueta-Carrillo thirty days to depart the United States voluntarily, beginning on the date of its order.¹ Zazueta-Carrillo filed a timely petition seeking our review.² He remained in the United States. Zazueta-Carrillo twice applied for a stay of removal pending review, and we denied both motions.³

On October 2, 2001, seventy-four days after the BIA granted him thirty days to depart voluntarily, Zazueta-Carrillo petitioned the BIA to reopen proceedings to allow him to apply for adjustment of status because his wife had become a naturalized United States citizen. The BIA denied Zazueta-Carrillo's petition on the ground that he had failed to depart the United States pursuant to the BIA's grant of voluntary departure. Zazueta-Carrillo then filed a petition for review with this court.

II

Before considering the main issue, we first must decide whether we have jurisdiction. The government argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) contains provisions that preclude jurisdiction here.

The first of these provisions states:

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.

8 U.S.C. § 1229c(f). The opening clause of § 1229c(f) plainly states that no court shall have jurisdiction over a particular kind of appeal: appeals of denials of requests for voluntary departure. But no denial of a request for voluntary departure is at issue in this case. Zazueta-Carrillo's request for voluntary departure was granted, not denied. He does not appeal it. Rather, Zazueta-Carrillo petitions for review of the BIA's denial of his motion to reopen his case for readjustment of status. That the BIA based its denial on its belief that Zazueta-Carrillo's voluntary departure period had expired does not transform the BIA's order into a different kind of order. Given the plain language of the statute's first clause, we are not divested of jurisdiction to hear this case.

Nor is this a "claim with respect to voluntary departure," within the meaning of the second clause of § 1229c(f). IIRIRA eliminates judicial review of certain enumerated decisions entrusted to executive discretion; it does not eliminate judicial review of all decisions bearing any relationship to voluntary departure. See Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir.1999) ("[A]s to those elements of statutory eligibility, which do not involve the exercise of discretion, direct judicial review remains"); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (same). The BIA decision at issue here did not involve the exercise of discretion. The BIA decided that Zazueta-Carrillo could not petition for adjustment of status because of the statutory bar of 8 U.S.C. § 1229c(d) for aliens who have not voluntarily departed. The BIA was simply following the law, not exercising discretion, when it denied Zazueta-Carrillo's motion to reopen. See Lafarga, 170 F.3d at 1215 (exercising jurisdiction over an immigrant's petition for review because the BIA's determination that she was per se ineligible for voluntary departure involved the application of a statute and therefore was not a discretionary decision). See also INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that district courts retain jurisdiction after IIRIRA to decide habeas corpus challenges involving pure questions of law). Because the BIA decision was not discretionary, but rather an application of law, IIRIRA does not divest us of jurisdiction.

Finally, the government points to 8 U.S.C. § 1252(a)(2)(B)(i), which it also argues precludes our exercising jurisdiction. That provision states:

Notwithstanding any other provision of law, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229c [voluntary departure] ... of this title.

The government's argument about § 1252(a)(2)(B)(i) suffers from precisely the same weaknesses as its argument about § 1229c(f). This case does not involve a "judgment regarding the granting" of voluntary departure. It involves a decision regarding the denial of a motion to reopen. Moreover, § 1252(a)(2)(B)(i) is titled "Denials of discretionary relief." (emphasis added). It does not divest us of jurisdiction to review non-discretionary decisions like that at issue here. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2001).

Because we are not asked to review the discretionary denial or granting of voluntary departure, neither § 1229c(f) nor § 1252(a)(2)(B)(i) prevents us from exercising jurisdiction. We turn now to the merits to assess whether Zazueta-Carrillo was entitled to remain in the United States pending our review.

III

Before we decide when the voluntary departure period begins to run, we first must decide whether our 1988 decision in Contreras-Aragon is still controlling. In Contreras-Aragon, we held that the voluntary departure period did not begin to run until after we issued our mandate. 852 F.2d at 1090. Stated another way, we held that an alien who was granted the privilege of voluntary departure was entitled to remain in the United States pending our review of his or her case. Id. Eight years after we decided Contreras-Aragon, Congress dramatically altered immigration law by enacting IIRIRA. IIRIRA so recast the statutory landscape that the rationale for Contreras-Aragon has been eliminated.

First, we relied on a jurisdictional argument. When we decided Contreras-Aragon, it was settled that we had jurisdiction to review the BIA's grants and denials of voluntary departure. We observed that the voluntary departure period should not commence until deliberation on that issue concluded:

Our authority to review this discretionary relief is beyond challenge. In reviewing the grant, we are simply reviewing what is before us.... Naturally, the voluntary departure period commences when our mandate upholding the grant of voluntary departure issues.

Contreras-Aragon, 852 F.2d at 1093.

Although our authority under then-existing law to review those determinations was beyond challenge, it was not beyond repeal by Congress. IIRIRA abolished our authority to review discretionary grants and denials of 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.") (emphasis added); 8 U.S.C. § 1252(a)(2)(B)(i) ("no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section... 1229c [voluntary departure]") (emphasis added). Because we no longer review denials of voluntary departure, there is no longer any reason to delay the voluntary departure period pending our review of that issue.

The second reason for our holding in Contreras-Aragon was a concern that an alien might be forced to choose between exercising the privilege of voluntary departure and exercising the right of appellate review. Contreras-Aragon, 852 F.2d at 1093-95. Under pre-IIRIRA law, we lost jurisdiction to consider a petition for review whenever the petitioner left the United States.⁴ We expressed concern that if the voluntary departure period seemed likely to expire before our review could be concluded (as it almost always would), an alien would face an unfair choice: leave the United States voluntarily ...