Barker v. Atty Gen USA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-24-2003
Barker v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3927
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-3927
____________
SANDRA BARKER,
Petitioner
v.
John Ashcroft, Attorney General of
the United States,
Respondent
____________
On Petition for Review of an Order of the Board of Immigration Appeals
INS No. A28-913-939
____________
Submitted Under Third Circuit LAR 34.1(a) December 16, 2003
Before: ROTH, M cKEE, and ROSENN, Circuit Judges
(Filed December 24, 2003 )
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
The petitioner-appellant, Sandra Barker, appeals from a final order by the Board
of Immigration Appeals (“Board”) denying her motion to reopen her deportation
proceedings. The Board denied Barker’s motion to reopen its decision, dismissing her
appeal from an immigration court’s order of deportation, because of her failure to depart
voluntarily from this country as ordered. We affirm.
I.
Barker, a native and citizen of Jamaica, entered the United States on January 1,
1989, with a fiancé visa, with permission to remain in this country until April 14, 1989.
She did not marry her fiancé and remained in the United States longer than permitted. On
June 26, 1996, the Immigration and Naturalization Service (INS), the predecessor to the
Bureau of Citizenship and Immigration Services, commenced deportation proceedings
against her with the filing of an Order to Show Cause why she should not be deported.
Barker appeared before an immigration judge (IJ) in September 1996. She
admitted the allegations contained in the Order to Show Cause. Based on the admissions,
the IJ found her deportable as charged. She requested relief and protection from
deportation in the form of political asylum, withholding of deportation, and suspension of
deportation. In the alternative, she sought the privilege of voluntary departure.
Barker offered testimony and documentary evidence in support of her applications
for relief and protection from deportation. She sought asylum and withholding of
deportation based on her claim of having been persecuted, and having a fear of
persecution, in Jamaica on account of her political opinion and her family’s alleged
involvement with the Jamaica National Party. She sought suspension of deportation
based on a claim of extreme hardship if deported from the United States.
Upon a hearing, the IJ denied Barker’s application for asylum in all of its aspects.
The IJ, however, granted Barker’s alternative request for voluntary departure until
October 4, 1997. In granting voluntary departure, the immigration judge informed Barker
orally:
I have granted you voluntary departure for a period of six months. If you do not
appeal your case, or if you appeal your case and lose, then you will have to leave
the United States. Okay. It may be possible to get more time beyond October 4th,
but you would have to ask the Immigration Service for that not me, I have no
authority to extend that time. . . . If you remain beyond the departure date without
a very good excuse, for example, if you get seriously sick or injured, then there
will be penalties, you’ll be ordered deported back to Jamaica and you’ll also lose
the right to apply for certain kinds of important immigration benefits for a period
2
of five years. I’m giving you forms in English and in Spanish, that describes
those penalties and I’m also giving you a copy of the order that I’m entering today
denying the asylum and withholding, and suspension and granting you voluntary
departure for six months. Ms. Barker, do you have any questions?
As noted by the IJ, he provided Barker with written notice of the limitations on
discretionary relief if she failed to depart voluntarily by October 4, 1997.
Written notice was provided to Barker in English and Spanish and that “[o]ral
notice of the contents of this notice was given to the alien in his/her native language, or in
a language he/she understands.”
Barker appealed the IJ’s decision to the Board. The Board dismissed the appeal
on October 29, 2001. The Board’s dismissal decision, however, “permitted [Barker] to
depart from the United States voluntarily within 30 days from the [date of the Board’s
decision] or any extension beyond that time as may be granted by the district director; and
in the event of failure so to depart, [Barker] shall be deported as provided in the
Immigration Judge’s order.” 1
Barker did not depart but filed a motion to reopen her deportation proceedings
with the Board. The motion requested reconsideration of her eligibility for suspension of
deportation in light of new evidence unavailable at the time of the IJ’s decision. Barker
acknowledged in the motion that her “previous period of voluntary departure has
expired.” The motion, therefore, alternatively requested that “the Board extend her
voluntary departure until a day 30 days following adjudication of the instant Motion,
including any judicial review thereof.” Barker subsequently supplemented her motion,
indicating that she would be seeking to adjust her immigration statute based on her recent
marriage to a United States citizen. The motion, as supplemented, did not indicate that
1
Barker never sought a judicial review of the Board’s dismissal decision.
3
she had not received oral and written notice of the consequences for failing to voluntarily
depart. Nor did she explain why she remained in the United States beyond her voluntary
departure period.
The Board denied Barker’s motion to reopen on two grounds. First, the Board
concluded that the motion was filed untimely. Second, the Board concluded that Barker
was statutorily barred, under § 240B(d) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229c(d), from applying for certain forms of discretionary relief, absent a showing of
exceptional circumstances for failing to depart voluntarily. Specifically, the Board noted,
contrary to Barker’s assertion, that she may otherwise qualify for an adjustment of status
“[was] not sufficient to establish 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.” (Brackets omitted.) The Board noted that
Barker had received both oral and written notice of the consequences of failure to depart
voluntarily and she had failed to depart voluntarily as ordered. The Board therefore
concluded that Barker was statutorily barred from applying for suspension of deportation
and adjustment of status. This appeal followed.
II.
This Court has appellate jurisdiction to review the Board’s denial of a motion to
reopen. Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir. 2002). This Court reviews the
Board’s denial of a motion to reopen on grounds of failure to make out a prima facie case
for abuse of discretion, and the Board’s findings of fact for substantial evidence. Id. at
173. Under the abuse of discretionary standard, the Board’s decision is reversible only if
it is “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994). In reviewing the Board’s findings of fact under the substantial evidence standard,
4
this Court’s scope of review is narrow. Sevoian, at 171. An alien seeking judicial
reversal of findings of facts by the Board must show that the evidence was “so
compelling that the no reasonable factfinder could fail to find” in her favor. Elias-
Zacarias v. INS, 502 U.S. 478, 483-84 (1992).
The Supreme Court has identified three independent grounds for the denial of a
motion to reopen immigration proceedings: (1) the movant’s failure to establish a prima
facie case for the relief sought; (2) the movant’s failure to introduce previously available,
material evidence that justifies reopening; or (3) a determination that even if the above
two requirements were met, the movant would not be entitled to the discretionary grant of
relief sought. INS v. Abudu, 485 U.S. 94, 105 (1988); Sevoian, at 169-70. “Motions for
reopening of immigration proceedings are disfavored. . . . This is especially true in a
deportation proceeding, where, as a general matter, every delay works to the disadvantage
of the deportable alien who wishes merely to remain in the United States.” INS v.
Doherty, 502 U.S. 314, 323 (1992).
A.
On appeal, Barker argues first that the Board erred in denying her motion to
reopen because the IJ failed to provide her with proper notice of the consequences for
failing to depart voluntarily. 2 Specifically, she argues that the IJ failed to provide the
requisite oral notice to her of each of the consequences of failing to depart voluntarily,
specifically the consequences of losing the benefits of suspension of deportation or
2
Barker also argues on appeal that her motion to reopen was timely filed. The
respondent-appellee, John D. Ashcroft, Attorney General of the United States,
agrees with her argument in this regard, conceding that the Board erred in
concluding that Barker’s motion to reopen was untimely filed.
5
adjustment of status.3 She argues that the IJ’s general warning that she would “lose the
right to apply for certain kinds of important immigration benefits for a period of five
years” is insufficient. In addition, she argues that the IJ’s oral warning of a failure to
depart voluntarily “without a very good excuse, for example, if you get seriously sick or
injured” is insufficient explanation of the statutory requirement of “exceptional
circumstances” because the judge’s words were “vague.” Barker argues next that the
Board erred in holding that she was ineligible for filing a motion to reopen.
B.
Contrary to Barker’s second argument, the Board never held in its decision
denying her motion to reopen that she was ineligible for filing a motion to reopen. The
Board’s decision was based on her statutory ineligibility to apply for suspension of
deportation or adjustment of status, absent a showing of “exceptional circumstances,” for
her failure to depart voluntarily as ordered. The Board concluded that she showed no
statutorily defined “exceptional circumstances.” Barker has not disputed this conclusion
3
Section 242B(e)(2), 8 U.S.C. § 1252b(e)(2) (1994) provides:
(A) In General
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.
(B) Written and oral notice required
Subparagraph (A) shall not apply to an alien allowed to depart voluntarily
unless, before such departure, the Attorney General has provided written
notice to the alien in English and Spanish and oral notice either in the
alien's native language or in another language the alien understands of the
consequences under subparagraph (A) of the alien's remaining in the United
States after the scheduled date of departure, other than because of
exceptional circumstances.
6
on appeal. Barker’s extensive second argument is, therefore, misguided.4
As correctly noted by the appellee, Barker failed to raise in her previous motion to
reopen that she did not receive adequate or sufficient oral notice of the consequences of
failing to depart voluntarily. Her failure to raise this issue before the Board bars this
Court’s consideration of this claim now. Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.
1989) (citing Campos-Guardado v. INS, 809 F.2d 285, 291 (5th Cir.), cert. denied, 484
U.S. 826 (1987); Florez-De Solis v. INS, 796 F.2d 330, 335 (9th Cir. 1986). This Court
will not, therefore, review Barker’s first argument; it was not raised before the Board.5
III.
In conclusion, we emphasize that what bars the reopening of Barker’s deportation
proceedings is her unexcused failure to comply with the Order of Voluntary Departure. It
was granted to her as a privilege in response to her request. “A grant of voluntary
departure allows a deportable alien to leave the country without suffering the
consequences of a formal deportation order. A deported alien is excludable from the
country for five years, 8 U.S.C. § 1182(a)(17) (1982), and commits a felony if he or she
ever returns without permission. 8 U.S.C. §§ 1252(f), 1326 (1982).” Cunanan v. INS,
856 F.2d 1373, 1374 n.1 (9th Cir. 1988). Unfortunately, Barker did not avail herself of
the privilege of voluntary departure. The penalty for her unexcused failure may appear to
be harsh in view of her recent marriage, but this Court notes that her failure to depart
4
Because Barker misinterprets the basis of the Board’s denial of her motion to
reopen, this Court will not consider another argument of hers on appeal that the
Board’s construction of §§ 242B(e)(2(A) of the Immigration and Nationality Act
violates the Equal Protection Clause of the United States Constitution, which is
based on such misinterpretation.
5
We note here, however, that Barker’s first argument has no merit because the
record clearly shows that the IJ provided both adequate oral and written notice as
statutorily required.
7
voluntarily has also caused INS to “[become] involved in further and more costly
procedures” by expending additional resources in removing her that could have been
avoided had she complied with the original order requested by herself. See Zazueta-
Carrillo v. Ashcroft, 322 F.3d 1166, 1173 (9th Cir. 2003) (quoting Ballenilla-Gonzalez v.
INS, 546 F.2d 515, 521 (2d Cir.1976)). We do not have the discretionary power to lift the
statutory bar against reopening her deportation proceedings because of her failure to abide
by the Order of Voluntary Departure. See Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(immigration legislation is “subject only to narrow judicial review”); United States v.
Pollard, 326 F.3d 397, 405-406 (3d Cir. 2003).
Accordingly, the Board’s decision of denying Barker’s motion to reopen her
deportation proceedings will be affirmed. Costs taxed against the appellant.
8
TO THE CLERK:
Please file the foregoing opinion.
/s/, Max Rosenn, Circuit Judge
9