Yong Kang Huang v. Holder ( 2009 )

08-3821-ag
Huang v. Holder
BIA
Chew, IJ
A72 183 150
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
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TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
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1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of December, two thousand nine.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSEPH M. McLAUGHLIN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 YONG KANG HUANG,
14 Petitioner,
15
16 v. 08-3821-ag
17
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
1 FOR PETITIONER: Gary J. Yerman, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General, Stephen J. Flynn,
5 Assistant Director, Jeffrey R. Meyer,
6 Attorney, Office of Immigration
7 Litigation, United States Department
8 of Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED, that the petition for review
13 is DENIED.
14 Petitioner Yong Kang Huang, a native and citizen of the
15 People’s Republic of China, seeks review of the July 17,
16 2008 order of the BIA affirming the May 22, 2007 decision of
17 Immigration Judge (“IJ”) George T. Chew denying his motion
18 to reopen, In re Yong Kang Huang, No. A72 183 150 (B.I.A.
19 Jul. 17, 2008), aff’g No. 72 183 150 (Immig. Ct. N.Y. City
20 May 22, 2007). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 When the BIA adopts the decision of the IJ and
23 supplements the IJ’s decision, this Court reviews the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
26 the BIA’s denial of a motion to reopen for abuse of
2
1 discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2 2005) (per curiam).
3 The Supreme Court has made clear that the agency may
4 properly deny a motion to reopen in its discretion,
5 irrespective of the movant’s eligibility for relief, where
6 the underlying relief is discretionary. See INS v. Abudu,
7 485 U.S. 94, 105 (1988) (finding that “in cases in which the
8 ultimate grant of relief is discretionary,” the agency may
9 jump ahead and determine that the movant would not be
10 entitled to discretionary relief); see also 8 C.F.R.
11 § 1003.2(a) (“The Board has discretion to deny a motion to
12 reopen even if the party moving has made out a prima facie
13 case for relief.”); 8 C.F.R. § 1003.23(b)(3). Here, the IJ
14 refused to exercise his discretion to grant Huang’s motion
15 to reopen in part because Huang had failed to comply with a
16 prior voluntary departure order. The BIA affirmed that
17 decision, and we find no reason to disturb it.
18 Subject to a number of qualifications, the Attorney
19 General, at his discretion, may grant an alien’s request to
20 depart the United States voluntarily, either in lieu of or
21 prior to the completion of removal proceedings or at the
22 conclusion of those proceedings. 8 U.S.C. § 1229c(a)(1),
3
1 (b)(1). From the alien’s perspective, voluntary departure
2 offers certain benefits, among them avoiding the penalties
3 attendant to deportation, which include five- or ten-year
4 bars on seeking readmission to the country. See Dada v.
5 Mukasey, 128 S. Ct. 2307, 2319 (2008) (“Voluntary departure
6 is an agreed-upon exchange of benefits, much like a
7 settlement agreement. In return for anticipated benefits,
8 including the possibility of readmission, an alien who
9 requests voluntary departure represents that he or she ‘has
10 the means to depart the United States and intends to do so’
11 promptly.”). This Court has observed that “[v]oluntary
12 departure under [8 U.S.C.
13 § 1229c] benefits both the government and the alien who
14 obtains it.” Thapa v. Gonzales, 460 F.3d 323, 328 (2d Cir.
15 2006); Singh v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006).
16 However, “for an alien, serious consequences result” from
17 “compliance with a voluntary departure order,” as well as
18 from noncompliance. Thapa, 460 F.3d at 328. The agency’s
19 denial of Huang’s motion to reopen was reasonably based on
20 his failure to live up to his end of the voluntary departure
21 bargain.
22 In support of his discretionary denial of Huang’s
23 motion, the IJ noted our application of the fugitive
4
1 disentitlement doctrine in Qian Gao v. Gonzales, 481 F.3d
2 173 (2d Cir. 2007), concluding that while not directly on
3 point, the case provided guidance. In Qian Gao, we stated
4 that the fugitive disentitlement doctrine “applies with full
5 force to an alien who fails to comply with a notice to
6 surrender for deportation.” 481 F.3d at 176. Huang argues
7 that the IJ erred in concluding that the rationale behind
8 the fugitive disentitlement doctrine is applicable to his
9 case. That argument is not persuasive. Huang is not a
10 fugitive as defined in Qian Gao because there is no evidence
11 that the agency sent him a notice to surrender for
12 deportation (“bag-and-baggage letter”) with which he failed
13 to comply. See id. at 175-76. Nevertheless, the reasoning
14 provided by this Court in Qian Gao provides a useful
15 analogy. Huang’s failure to comply with the voluntary
16 departure order “undercuts the authority and dignity of the
17 judicial process” in that he “disdain[ed] the authority of
18 the [agency] in the very manner in which he seeks relief.”
19 Id. at 177. As this Court has observed, “[e]veryone
20 understands that the [government] is overwhelmed with
21 petitioners and procedures, and that it heavily relies on
22 the word and voluntary compliance of numerous aliens within
5
1 our borders. It is easy to game this system, but we should
2 not treat disregard of [government] directives as a norm.”
3 Ofusu v. McElroy, 98 F.3d 694, 702-03 (2d Cir. 1996).
4 Because the IJ’s discretionary denial of Huang’s
5 untimely motion is dispositive, see Abudu, 485 U.S. at 104-
6 05, we need not consider his arguments related to his family
7 planning claim.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19 By:___________________________
6