Stewart v. INS ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDITH STEWART,
Petitioner,
v.
No. 98-1597
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-848-462)
Argued: January 27, 1999
Decided: June 23, 1999
Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Petition for review denied by published opinion. Judge Williams
wrote the opinion, in which Judge Wilkins and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Ronald Darwin Richey, Rockville, Maryland, for Peti-
tioner. Kristen A. Giuffreda, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assis-
tant Attorney General, Elizabeth A. Welsh, Senior Litigation Counsel,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Edith Miller Stewart, a citizen and native of Sierra Leone, petitions
for review of a March 1998 decision by the Board of Immigration
Appeals (BIA) denying her motion to reopen deportation proceedings
to apply for adjustment of status. We first conclude that we possess
jurisdiction over the BIA's denial of her motion to reopen, which was
based on the BIA's finding that Stewart failed to demonstrate "excep-
tional circumstances" excusing her overstay in the United States past
her voluntary departure date. Because the BIA did not abuse its dis-
cretion in reaching this conclusion, we affirm the BIA's March 1998
decision and deny Stewart's petition for review.
I.
Stewart entered the United States on or about August 13, 1993, as
a nonimmigrant visitor authorized to remain in the United States until
February 12, 1994. On March 18, 1994, the INS issued an Order to
Show Cause charging Stewart with deportability pursuant to Section
241(a)(1)(B) of the Immigration and Nationality Act (INA) for
remaining in the United States longer than permitted. By way of writ-
ten pleadings, Stewart conceded the allegations and the charge of
deportability. Concurrent with her concession of deportability, Stew-
art submitted applications for political asylum, withholding of depor-
tation, and voluntary departure.
On February 21, 1995, Stewart appeared before an immigration
judge (IJ) and presented testimony in support of her applications for
asylum and for withholding of deportation. Stewart testified that she
left Sierra Leone because of the ongoing civil war and political unrest
that affected both her and her family. According to Stewart, her father
was killed eighteen years ago while on military duty, and her aunt,
who was the Minister of Health, was under house arrest following a
coup that had overthrown the government. Stewart told the IJ that in
March 1991, she was part of a group of travelers who were tied up,
beaten, and robbed by rebels, and as a result of the attack, Stewart
was hospitalized for two weeks. She also reported that following her
release from the hospital, she heard on the news that the rebels had
2
attacked her hometown, and she has been unable to contact her
mother since that time. Shortly thereafter, Stewart left Sierra Leone
to live in Ethiopia. After living in Ethiopia for eighteen months, she
left because of the war there and came to the United States to live
with another aunt.
At the conclusion of the hearing, the IJ denied Stewart's applica-
tions for asylum and withholding of deportation. The IJ determined
that Stewart had a fear of being the object of general violence incident
to a civil war, a fear that does not fit within the concept of persecution
for purposes of political asylum. The IJ noted that although Stewart
was the victim of violence, it did not appear that the attack had any-
thing to do with her race, religion, nationality, membership in a par-
ticular social group, or political opinion. The IJ further noted that
Stewart had found a safe haven in Ethiopia, and had not presented any
evidence that Ethiopia was suffering from the same kinds of problems
as Sierra Leone. The IJ concluded that Stewart had not established a
fear of persecution warranting asylum or withholding of deportation.
The IJ granted Stewart the relief of voluntary departure on or before
May 21, 1995, pursuant to Section 244(e)(1) of the INA. The IJ
warned Stewart both orally and in writing that if she failed to leave
by the deadline date, she would be ineligible for"voluntary departure
again in the future, suspension of deportation, and adjustment of sta-
tus or change of status as provided for in Sections 242(b), 244(e),
245, 248, or 249 of the [INA]." (A.R. at 213.)
Stewart appealed the denials of asylum and of withholding of
deportation to the Board of Immigration Appeals (BIA). While that
appeal was pending, Stewart filed a motion to remand the case for
consideration of adjustment of status based on her November 15,
1994 marriage to a United States citizen. By order of August 2, 1996
(the August 1996 Order), the BIA denied Stewart's motion to remand
because she had failed to file a sworn application for adjustment of
status (Form I-485) demonstrating her prima facie eligibility for
adjustment. The August 1996 Order also dismissed Stewart's appeal
from the IJ's decision denying asylum and withholding of deportation
on the ground that Stewart had established only that she is fleeing
general conditions of violence affecting her country. The August 1996
Order extended Stewart's period of voluntary departure so that it
expired thirty days thereafter. On March 19, 1997, this Court denied
3
Stewart's petition for review of the BIA's August 1996 Order. Miller
v. INS, 108 F.3d 1372, No. 96-2201 (4th Cir. March 19, 1997)
(unpublished).1
On August 28, 1996, three days before the expiration of her thirty-
day extension for voluntary departure, Stewart filed a motion to
reopen deportation proceedings to apply for adjustment of status.2 The
BIA issued an order denying Stewart's motion on March 26, 1998
(the March 1998 Order). The BIA did not reach the merits of her peti-
tion but instead found that the record contained no evidence that
Stewart had obtained an extension of her voluntary departure date
from the INS district director. The BIA also found that Stewart failed
to depart from the United States within the thirty-day extension period
of voluntary departure and did not submit any evidence showing that
her failure to do so was the result of "exceptional circumstances." In
light of these facts, the BIA concluded that Stewart was "ineligible,
pursuant to section 242B(e)(2)(A) of the Immigration and Nationality
Act, 8 U.S.C. § 1252b(e)(2)(A), for the relief requested."3 (A.R. at 3.)
_________________________________________________________________
1 Stewart's maiden name was Miller.
2 A motion to reopen will be granted only where the alien offers evi-
dence in support of the relief requested that "is material and was not
available and could not have been discovered or presented at the former
hearing." 8 C.F.R. § 3.2(c) (1998). In support of her motion to reopen to
apply for adjustment of status, Stewart offered her marriage, which was
not considered by the IJ due to the failure of her attorney to file the cor-
rect form.
3 Section 242B(e)(2)(A) provides:
Subject to [receiving written and oral notice of the consequences
of remaining in the United States after the scheduled date of
departure], any alien allowed to depart voluntarily under section
1254(e)(1) of this title . . . who remains in the United States after
the scheduled date of departure, other than because of excep-
tional circumstances, shall not be eligible for[relief including,
inter alia, adjustment of status] for a period of 5 years after the
scheduled date of departure or the date or unlawful reentry,
respectively.
8 U.S.C.A. § 1252b(e)(2)(A) (West 1996) (repealed by IIRIRA). Section
242B(f)(2) defines "exceptional circumstances" as "exceptional circum-
stances (such as serious illness of the alien or death of an immediate rela-
tive of the alien, but not including less compelling circumstances)
beyond the control of the alien." 8 U.S.C.A.§ 1252b(f)(2).
4
Stewart now petitions for review of the March 1998 Order. Stewart
argues on appeal that the BIA abused its discretion in denying her
motion to reopen by failing to consider the following "exceptional cir-
cumstances": (1) she was detained by the INS and not allowed to
leave the United States; (2) she became seriously ill and was hospital-
ized; (3) her father was killed and her mother is missing and pre-
sumed dead; (4) the conditions in Sierra Leone were so precarious
that she could not return; and (5) her previous counsel committed
malpractice, which seriously prejudiced her case. In the alternative,
Stewart argues that her filing the motion to reopen before the expira-
tion of the voluntary departure period equated to"exceptional circum-
stances" warranting the grant of her motion to reopen. In opposition,
the INS argues that the transitional changes in judicial review
included in the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat.
3009-546, preclude judicial review of the BIA's March 1998 Order.
In the alternative, the INS argues that even if this Court has jurisdic-
tion over Stewart's appeal, the BIA did not abuse its discretion in
denying Stewart's motion to reopen.
II.
Before reaching the merits of Stewart's case, we first must deter-
mine whether we have jurisdiction over Stewart's petition for review.
This determination requires us to proceed in two steps. First, we must
decide whether Stewart's petition for review is subject to the pre-
IIRIRA law or to the transitional changes in judicial review in IIRIRA
by determining what is the "final order of exclusion or deportation"
for the purpose of invoking the transitional changes in judicial review.
Second, after determining the governing law, we then must decide
whether it provides us with jurisdiction over Stewart's appeal.
A.
Prior to the enactment of IIRIRA, judicial review of a BIA order
denying a motion to reopen was governed by § 106 of the INA, codi-
fied at 8 U.S.C. § 1105a. See Nwolise v. INS, 4 F.3d 306, 309 (4th Cir.
1993). IIRIRA, enacted on September 30, 1996, repealed § 106 and
replaced it with revised rules of judicial review to take effect on April
1, 1997. See IIRIRA §§ 306, 309(a). Aliens who were in deportation
5
proceedings before April 1, 1997, are not subject to the new rules. See
IIRIRA § 309(c)(1) (as amended). Instead, these aliens are subject to
the judicial review provisions in pre-IIRIRA law (the old rules),
unless their "final order of exclusion or deportation" is entered more
than thirty days after September 30, 1996, in which case they are sub-
ject to IIRIRA's transitional changes in judicial review (the transi-
tional rules). See IIRIRA § 309(c)(1), (4) (as amended).4
The BIA dismissed Stewart's appeal from the IJ's denial of her
applications for asylum and withholding of deportation on August 2,
1996, prior to the enactment of IIRIRA. The BIA dismissed Stewart's
motion to reopen deportation proceedings to apply for adjustment of
status on March 26, 1998, more than thirty days after the enactment
of IIRIRA. Therefore, whether Stewart's petition for review in the
instant case is subject to the old rules or to the transitional rules turns
on whether the August 1996 Order or the March 1998 Order is con-
sidered the "final order of exclusion or deportation." Although
IIRIRA's transitional rules make no explicit reference to denials of
motions to reopen, this Court and our sister circuits have traditionally
interpreted "final order of deportation" in other contexts to include a
BIA order denying a motion to reopen. See Nwolise, 4 F.3d at 309(noting implicitly that an order denying a motion to reopen is a "final
_________________________________________________________________
4 Section 309(c)(1) provides:
Subject to the succeeding provisions of this subsection, in the
case of an alien who is in exclusion or deportation proceedings
before the title III-A effective date [April 1, 1997] --
(A) the amendments made by this subtitle shall not apply, and
(B) the proceedings (including judicial review thereof) shall
continue to be conducted without regard to such amendments.
IIRIRA § 309(c)(1).
Section 309(c)(4) provides:
In the case in which a final order of exclusion or deportation
is entered more than 30 days after the date of the enactment of
this Act [September 30, 1996], notwithstanding any provision of
section 106 of the Immigration and Nationality Act to the con-
trary[, the transitional rules apply].
IIRIRA § 309(c)(4).
6
order of deportation" for purpose of invoking judicial review);
Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997) (holding that the
withdrawal of judicial review from "final orders of deportation" also
withdraws jurisdiction from orders denying motions to reconsider or
to reopen deportation proceedings); Chow v. INS , 113 F.3d 659, 664
(7th Cir. 1997) (same). In light of this precedent and the lack of any
contrary statutory authority in IIRIRA, we agree with the Eighth Cir-
cuit that the phrase "order of exclusion or deportation" in IIRIRA's
transitional rules includes an order denying a motion to reopen. See
Mayard v. INS, 129 F.3d 438, 439 (8th Cir. 1997) (per curiam). We
therefore conclude that the March 1998 Order is the relevant "final
order of exclusion or deportation," and that Stewart's petition for
review from the March 1998 Order is subject to the transitional rules.
B.
Having concluded that the March 1998 Order denying Stewart's
motion to reopen is a "final order of deportation" for purposes of
invoking the transitional rules, we must now decide whether these
rules provide for jurisdiction over Stewart's appeal. As a preliminary
inquiry, we must determine whether § 242(g) of the INA, codified at
8 U.S.C. § 1252(g), limits our jurisdiction over Stewart's appeal.5 In
Reno v. American-Arab Anti-Discrimination Comm. , 119 S. Ct. 936(1999), the Supreme Court clarified the scope of§ 1252(g). In reject-
ing "the unexamined assumption that § 1252(g) covers the universe of
_________________________________________________________________
5 INA § 242(g) provides:
Except as provided in this section and notwithstanding any other
provision of law, no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the deci-
sion or action by the Attorney General to commence proceed-
ings, adjudicate cases, or execute removal orders against any
alien under this chapter.
8 U.S.C.A. § 1252(g) (West 1999). Section 1252(g) went into effect on
April 1, 1997, see INS v. Yang, 117 S. Ct. 350, 352 n.1 (1996), while
Stewart's motion to reopen was pending before the BIA. Congress
expressly provided that § 1252(g) applies"without limitation to claims
arising from all past, pending, or future exclusion, deportation, or
removal proceedings." IIRIRA § 306(c)(1).
7
deportation claims," the Court specifically noted the following deci-
sions or actions that would not fall under § 1252(g):
There are of course many other decisions or actions that
may be part of the deportation process -- such as the deci-
sions to open an investigation, to surveil the suspected viola-
tor, to reschedule the deportation hearing, to include various
provisions in the final order that is the product of the adjudi-
cation, and to refuse reconsideration of that order.
American-Arab, 119 S. Ct. at 943 (emphasis added). A motion to
reopen is very similar to a motion to reconsider. See 8 C.F.R. 3.2
(1998). By the Supreme Court's logic, the BIA's denial of a motion
to reopen would not fall under § 1252(g). Therefore, Stewart's peti-
tion for review of the BIA's denial of her motion to reopen is subject
to IIRIRA's transitional rules, but not to the limitation of § 1252(g).
Under IIRIRA's transitional rules, this Court has jurisdiction to
hear an appeal from the BIA's denial of Stewart's motion to reopen
unless an exception applies. See IIRIRA§ 309(c)(1) (as amended).
The INS invokes § 309(c)(4)(E) of IIRIRA's transitional rules as such
an exception. Section 309(c)(4)(E) provides that"there shall be no
appeal of any discretionary decision under section 212(c), 212(h),
212(i), 244, or 245 of the Immigration and Nationality Act (as in
effect as of the date of the enactment of this Act)." IIRIRA
§ 309(c)(4)(E). Stewart moved to reopen her deportation proceedings
to apply for adjustment of status pursuant to § 245 of the INA, which
provides:
The status of an alien who was inspected and admitted or
paroled into the United States may be adjusted by the Attor-
ney General, in his discretion and under such regulations as
he may prescribe, to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an application for
such adjustment, (2) the alien is eligible to receive an immi-
grant visa and is admissible to the United States for perma-
nent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed.
8 U.S.C.A. § 1255(a) (West Supp. 1998). The dispositive issue before
us, therefore, is whether the BIA's denial of Stewart's motion to
8
reopen to apply for adjustment of status is a "discretionary decision
under section . . . 245 of the Immigration and Nationality Act."
IIRIRA § 309(c)(4)(E).
Our preliminary inquiry is whether the BIA's decision was a "deci-
sion under . . . section 245." The BIA explicitly dismissed Stewart's
motion to reopen to apply for adjustment of status for her failure to
demonstrate "exceptional circumstances" excusing her overstay as
required by § 242B(e)(2)(A) of the INA, which provides:
Subject to [receiving written and oral notice of the conse-
quences of remaining in the United States after the sched-
uled date of departure], any alien allowed to depart
voluntarily under section 1254(e)(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 [including, inter alia, adjust-
ment of status] for a period of 5 years after the scheduled
date of departure or the date of unlawful reentry, respec-
tively.
8 U.S.C.A. § 1252b(e)(2)(A) (West 1996) (repealed by IIRIRA).
According to § 242B(e)(2)(A), an alien who has overstayed her vol-
untary departure date must make a showing of "exceptional circum-
stances" before becoming eligible for adjustment of status pursuant to
§ 245. Section 242B(e)(2)(A), in essence, is a"gate" through which
such an alien must pass before the BIA will even consider the alien's
application for adjustment of status. Having dismissed Stewart's
motion to reopen pursuant to § 242B(e)(2)(A), the BIA never
addressed the merits of her application for adjustment of status.
The BIA's decision denying Stewart's motion to reopen could logi-
cally be interpreted for the purposes of § 309(c)(4)(E) either as a "de-
cision under" § 245 (because the end result is a denial of Stewart's
motion to reopen to apply for adjustment of status pursuant to § 245)
or as a "decision under" § 242B(e)(2)(A) (the specific reason for the
BIA's denial of Stewart's motion to reopen). Because the sections
listed in § 309(c)(4)(E) all authorize the Attorney General to grant an
alien discretionary relief, we believe that the better interpretation of
§ 309(c)(4)(E) is that it divests courts of jurisdiction only over BIA
9
decisions that address the merits of an alien's request for relief pursu-
ant to those sections. A reviewing court, therefore, must examine the
basis for the BIA's decision rather than the end result of the BIA's
decision to determine whether the decision is "under" a section listed
in § 309(c)(4)(E) that precludes judicial review. Applying this reason-
ing to this case, we conclude that the BIA's decision denying Stew-
art's motion to reopen was a decision under § 242B(e)(2)(A) rather
than a decision under § 245 because the BIA never addressed the mer-
its of Stewart's request for relief pursuant to§ 245. Because no transi-
tional rule, including § 309(c)(4)(E), specifically divests courts of
jurisdiction over a BIA decision under § 242B(e)(2)(A), we possess
jurisdiction over Stewart's petition for review. 6
III.
Having concluded that we possess jurisdiction over Stewart's peti-
tion for review, we now review her arguments on appeal. This Court's
review of a decision by the BIA denying a motion to reopen is
extremely deferential; we will not reverse the BIA absent an abuse of
discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992); M.A. v. INS,
899 F.2d 304, 308 (4th Cir. 1990). Motions to reopen immigration
proceedings are disfavored, particularly in deportation proceedings,
where "every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States." Doherty, 502 U.S.
at 323.
Stewart's first two contentions on appeal are that her detention by
the INS and her subsequent illness and hospitalization constituted
"exceptional circumstances" preventing her voluntary departure from
_________________________________________________________________
6 We note that the only issue on appeal in cases such as Stewart's is
whether the BIA erred in finding that the alien failed to establish "excep-
tional circumstances" excusing her overstay in the country. If the court
finds that the BIA erred in finding that the alien failed to show "excep-
tional circumstances," the court need not go on to consider the merits of
the alien's application for relief. Instead, the court should vacate the
BIA's decision and remand the case to the BIA with the instruction to
consider the alien's application on the merits. Such a disposition prevents
the premature divesting of BIA review of a potentially meritorious appli-
cation for relief.
10
the United States. Stewart acknowledges that the facts of her deten-
tion and illness "are not part of the ``CAR'[certified administrative
record]." (Appellant's Br. at 6 n.2, 7 n.3.) Because circuit precedent
precludes our consideration of any facts not presented to the BIA for
consideration, we cannot consider these arguments. 7 See Farrokhi v.
INS, 900 F.2d 697, 700 (4th Cir. 1990).
Stewart's third and fourth contentions that "exceptional circum-
stances" are present are the death and disappearance of her father and
mother, respectively, and the civil unrest in Sierra Leone. Although
Stewart presented these arguments to the BIA in support of her appli-
cations for asylum and for withholding of deportation, she did not
present them to the BIA as claims of "exceptional circumstances."
Because Stewart did not properly present these claims to the BIA for
consideration, we cannot consider them.8 See id.Finally, Stewart argues that the ineffective assistance of her coun-
sel constituted "exceptional circumstances." Stewart hypothesizes that
but for her attorney's failure to file a Form I-485, the BIA would have
granted her motion to remand. Stewart failed to assert her claim of
ineffective assistance of counsel to the BIA in the manner prescribed
_________________________________________________________________
7 Even if we could consider Stewart's arguments, we would conclude
that they lacked merit. As Stewart acknowledges in her brief, she was
detained by the INS on September 4, 1996, and became ill shortly there-
after. Her voluntary departure period expired on September 1, 1996,
thirty days after the BIA's August 2, 1996 decision. Therefore, neither
her detention by the INS nor her illness had any effect on her ability to
depart voluntarily.
8 Even if we could consider Stewart's arguments, they are not meritori-
ous. Stewart knew about the death of her father, the disappearance of her
mother, and the civil unrest in Sierra Leone well in advance of her
motion to reopen. None of these circumstances, therefore, could have
prevented her timely departure from the country. Moreover, Stewart's
receipt of Temporary Protected Status (TPS) from the INS is irrelevant
to this appeal because the Attorney General did not designate Sierra
Leone for TPS until November 4, 1997, over one year after the expira-
tion of Stewart's voluntary departure period. 62 Fed. Reg. 59736 (1997).
This designation therefore could not have constituted an exceptional cir-
cumstance excusing Stewart's failure to depart.
11
by Matter of Lozada, 19 I & N Dec. 637 (BIA 1988).9 Because Stew-
art failed properly to make a claim of ineffective assistance of counsel
to the BIA, this Court cannot consider the claim. 10 See Farrokhi, 900
F.2d at 700.
In the alternative, Stewart argues that the filing of her motion to
reopen deportation proceedings in itself constituted"exceptional cir-
cumstances." We reject this argument, based on the persuasive rea-
soning of Shaar v. INS, 141 F.3d 953 (9th Cir. 1998). In that case, the
Shaars, who were nonimmigrant visitors, were found to be deportable
because they had remained in the United States after the expiration of
their visas. Shaar, 141 F.3d at 955. The IJ exercised his discretion to
permit them to depart voluntarily, and gave them oral and written
warnings that they would not be eligible for certain types of relief if
they did not leave by the specified date. See id. Two or three days
before their scheduled departure date, the Shaars filed a motion to
reopen deportation proceedings to apply for suspension of deporta-
tion, which was denied by the BIA. See id. On petition for review, the
Ninth Circuit concluded that "the departure situation was not beyond
their control, and even if it were, it was not even remotely as compel-
ling as a serious illness of the alien himself or the death of an immedi-
ate relative." Id. at 957. The Ninth Circuit also concluded that as a
matter of law, the filing of the petition to reopen did not toll the statu-
tory bar date, because the regulations did not provide for a stay or
tolling upon the filing of such a petition. See id. at 958. We find this
reasoning persuasive in the similar context of a motion to reopen to
apply for adjustment of status.
_________________________________________________________________
9 An alien claiming ineffective assistance of counsel must (1) provide
an affidavit detailing the agreement with counsel, (2) inform counsel of
the allegation against him and provide him with an opportunity to
respond, and (3) indicate whether a complaint has been filed with the
appropriate disciplinary authorities. See Matter of Lozada, 19 I&N Dec.
637, 639 (BIA 1988).
10 Even if we could consider Stewart's argument, we would find it to
be without merit. It is undisputed that Stewart received multiple explicit
warnings of the consequences of failure to depart. Stewart has failed to
demonstrate how the actions of her former counsel prevented her from
departing the country within the prescribed period.
12
IV.
In sum, the BIA did not abuse its discretion in concluding that
Stewart failed to show "exceptional circumstances" warranting con-
sideration for adjustment of status after she failed to depart the United
States by the designated voluntary departure date. 11 Accordingly,
Stewart's petition for review is denied and the BIA's March 1998
Order denying Stewart's motion to reopen deportation proceedings is
affirmed.
AFFIRMED
_________________________________________________________________
11 At oral argument, a question arose with regard to the effect of judi-
cial review on the voluntary departure period granted by the BIA. In
Ramsay v. INS, 14 F.3d 206 (4th Cir. 1994), this Court decided that "the
decision to reinstate or extend voluntary departures should usually be left
to the discretion of the District Director." Id. at 213. We concluded that
a court of appeals should reinstate a voluntary departure granted by the
BIA only when the INS is wielding its discretion to deter applicants from
seeking judicial review or the INS does not suggest that it will present
the District Director with any other reason for refusing the reinstatement.
See id. We need not determine whether Ramsay applies to this case, how-
ever. According to the INS, by the most generous calculation that this
Court's mandate denying review of the August 1996 Order issued in
mid-September 1997 and began the running of the thirty-day voluntary
departure period, the thirty-day voluntary departure period expired in
mid-October 1997. It is undisputed that Stewart did not voluntarily
depart from the United States by mid-October 1997. Moreover, the cir-
cumstances cited by Stewart as reasons for her failure to depart voluntar-
ily did not become "exceptional" by this later departure date.
13