Odogwu v. Gonzales , 217 F. App'x 194 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2315
CYRIL ODOGWU,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A75-996-737)
Argued: November 28, 2006 Decided: February 6, 2007
Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and David A.
FABER, Chief United States District Judge for the Southern District
of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Anser Ahmad, Harrisburg, Pennsylvania, for Petitioner.
James Arthur Hunolt, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Civil
Division, M. Jocelyn Lopez Wright, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cyril Odogwu, a native and citizen of Nigeria, petitions for
review of a decision by the Board of Immigration Appeals (BIA).
The BIA found Odogwu statutorily ineligible for adjustment of
status and ordered him removed to Nigeria.
Odogwu’s petition raises the issue of whether granting a
motion to reopen nullifies the consequences of a prior violation of
a voluntary departure order. We hold that it does not.
I.
Cyril Odogwu is a 39 year old native of Nigeria. He came to
the United States as a non-immigrant visitor in 1998 with
authorization to stay for six months. Odogwu overstayed his six-
month visa, and in November 1998, the government commenced removal
proceedings against him.1 At his removal hearing, Odogwu requested
that he be granted voluntary departure in lieu of removal. The
immigration judge (IJ) granted Odogwu’s request, and ordered that
Odogwu voluntarily depart the United States by January 8, 1999.
1
In March 2003, service and benefit functions of the
Immigration and Naturalization Service (INS) were reorganized and
transferred from the Department of Justice to the newly created
Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). However, the
functions of the Executive Office of Immigration Review, which
includes the immigration courts and the BIA, remained under the
jurisdiction of the Department of Justice. See Aliens and
Nationality, 68 Fed. Reg. 10,349 (March 5, 2003). To avoid
confusion, we will refer to either the INS or the present DHS as
simply the “government.”
2
The IJ warned Odogwu that failure to depart by January 8 would
render him ineligible for various forms of relief, including
adjustment of status, for a period of ten years.
After the IJ entered the voluntary departure order, Odogwu
married a United States citizen, who filed an I-130 immediate
relative visa petition on his behalf. See 8 U.S.C. §
1151(b)(2)(a)(I). Odogwu requested and was granted an extension of
the voluntary departure order until May 4, 1999. In April 1999,
two different attorneys requested further extensions of the
voluntary departure order, but those requests were denied. Odogwu
did not leave on his departure date, and his voluntary departure
order automatically became a final order of removal. See 8 C.F.R.
§ 1240.26(d); 8 C.F.R. § 1241.7.
Odogwu and his spouse divorced in December 2000. In February
2001, almost two years after his voluntary departure date, Odogwu
filed a motion to reopen his removal proceedings. See 8 U.S.C. §
1229a(c)(7).2 Motions to reopen must be filed within ninety days
of a final order of removal, unless a petitioner can meet one of
the statutory exceptions to the ninety-day limit. See id. at §
1229a(c)(7)(C). Odogwu argued that he was eligible for asylum, one
2
When Odogwu initiated these proceedings, motions to reopen
were codified at § 1229a(c)(6). Real ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, 304 (2005). Congress later redesignated
former paragraphs (4), (5), and (6) as paragraphs (5), (6), and
(7), respectively, and added an additional paragraph (4). See id.None of these changes affect Odogwu’s case.
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of the statutory exceptions.3 Odogwu also informed the IJ that he
was engaged to a United States citizen, and that she was expecting
their child. The IJ granted Odogwu’s motion to reopen based on his
asylum petition,4 and subsequently granted a motion to change venue
to Baltimore, Maryland.
At the reopened removal hearing in Baltimore, Odogwu, through
counsel, withdrew his asylum application and indicated that he was
seeking only adjustment of status based on his recent marriage.5
Before the IJ could determine the merits of Odogwu’s application
for adjustment of status, the government submitted a motion to
pretermit Odogwu’s proceedings. The government argued that because
3
“There is no time limit on the filing of a motion to reopen
if the basis of the motion is [asylum] . . . and is based on
changed country conditions arising in the . . . country to which
removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C).
4
The IJ stated at the hearing on Odogwu’s motion to reopen
that he would consider the expected birth of Odogwu’s child when
adjudicating his adjustment of status application. The IJ also
noted, however, that he did not know whether Odogwu was statutorily
eligible for adjustment of status.
5
In June 2001, Stacey Odogwu, petitioner’s second wife, filed
an I-130 immediate relative visa petition on his behalf. Because
Odogwu was subject to removal proceedings when his wife filed the
I-130 visa petition, he and his wife had to prove by clear and
convincing evidence that they married for legitimate purposes. See
8 U.S.C. § 1255(e)(3). Odogwu and his wife successfully
established the legitimacy of their marriage, and the government
approved the I-130 visa petition. Odogwu then filed an I-485
Application for Adjustment of Status based on his wife’s approved
I-130 visa petition. See id. at § 1255(a). However, the IJ
pretermitted Odogwu’s reopened proceedings and ordered him removed
to Nigeria before his I-485 application could be approved.
4
Odogwu did not depart the United States by his voluntary departure
date, he was statutorily ineligible for adjustment of status for
ten years. See 8 U.S.C. § 1229c(d). Odogwu’s counsel did not file
a timely response to the government’s motion, and on January 7,
2003, the IJ pretermitted Odogwu’s application for adjustment of
status and ordered him removed to Nigeria.
Odogwu appealed the decision to the BIA, which affirmed the
IJ’s order of removal. The BIA agreed that § 1229c(d) bars
Odogwu’s application for adjustment of status. Odogwu then filed
this appeal.
II.
This court reviews the BIA’s legal conclusions de novo, giving
appropriate deference to its interpretations of the Immigration and
Nationality Act. Nwolise v. I.N.S., 4 F.3d 306, 309 (4th Cir.
1993). This court rejects the BIA’s statutory interpretations only
when they are “arbitrary, capricious, or manifestly contrary to the
statute.” See Chevron U.S.A., Inc. v. Natural Res. Council, 467
U.S. 837, 844 (1984).
III.
Odogwu argues that he did not violate his voluntary departure
order because by reopening his case, the IJ vacated the prior
departure order. The Seventh Circuit has held that granting a
5
motion to reopen disposes of the voluntary departure order and
vitiates the effects of a violation of that order. See Orichitch
v. Gonzales, 421 F.3d 595, 598 (7th Cir. 2005); see also Bronisz v.
Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004). However, the First
Circuit held that while granting a motion to reopen has “the legal
effect of vacating” a departure order, “it could not ‘retroactively
nullify’ . . . [a] previous violation of the terms of that order.”
DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006) (quoting
Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005)). For
reasons discussed below, we adopt the First Circuit’s reasoning and
hold that granting a motion to reopen does not retroactively
nullify the consequences of a prior violation of a voluntary
departure order.
A.
Voluntary departure is a discretionary form of relief that
allows a person to depart the United States voluntarily and avoid
the inadmissibility restrictions that result from an order of
removal. See 8 U.S.C. § 1229c(a)(1). Voluntary departure provides
benefits to both the non-citizen and the government. See DaCosta,
449 F.3d at 51. Voluntary departure affords the non-citizen “1)
the ability to choose his own destination point; 2) the opportunity
to put his affairs in order without fear of being taken into
custody; 3) freedom from extended detention while the government
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prepares for his removal; 4) avoidance of the stigma of forced
removal; and 5) continued eligibility for an adjustment of status.”
Banda-Ortiz v. Gonzales, 445 F.3d 387, 389-90 (5th Cir. 2006).
Because the individual pays for his own departure, the government
saves money and avoids devoting additional time and resources to
further proceedings. See id. at 390. However, the consequences of
violating a voluntary departure order are severe: anyone violating
a voluntary departure order is barred from being granted various
forms of relief, including adjustment of status, for a period of
ten years. 8 U.S.C. § 1229c(d).
Motions to reopen allow an IJ to consider evidence that has
arisen subsequent to the petitioner’s previous removal hearing.
See 8 U.S.C. § 1229a(c)(7). Before an IJ can grant a motion to
reopen, the petitioner must show that the new evidence was
previously unavailable and that it could not have been presented at
the former hearing. See 8 C.F.R. § 1003.2(c)(1). However,
granting a motion to reopen does not guarantee that the relief
sought will be granted, only that the previously unavailable
evidence will be considered. See id.The United States Supreme Court has said that motions to
reopen are most analogous to Rule 60(b) motions under the Federal
Rules of Civil Procedure. Stone v. I.N.S., 514 U.S. 386, 401
(1995) (“The closest analogy to the INS’ discretionary petition for
agency reconsideration is the motion for relief from judgment under
7
Rule of Civil Procedure 60(b).”); see also Bronisz, 378 F.3d at
636. While not addressing motions to reopen in the context of
removal proceedings, this Circuit has held that granting a Rule
60(b) motion reopens the earlier civil proceeding and vacates the
underlying judgment. See Fobian v. Storage Tech. Corp., 164 F.3d
887, 890 (4th Cir. 1999) (“When a district court grants a 60(b)
motion, it must necessarily vacate the underlying judgment and
reopen the record.”). However, granting a motion to reopen does
not undo the consequences of a prior violation of that judgment
order. See DaCosta, 449 F.3d 50-51. Therefore, even though
granting a motion to reopen has the legal effect of vacating a
prior voluntary departure order, it does not “retroactively
nullify” the consequences of a prior violation of a then valid
voluntary departure order. See id.Policy considerations also justify this holding. Voluntary
departure “reveals Congress’[s] intention to offer an alien a
specific benefit - exemption from the ordinary bars on subsequent
relief - in return for a quick departure at no cost to the
government.” Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.
2004). “But if the alien does not depart promptly, so that the
[government] becomes involved in further and more costly procedures
by his attempts to continue his illegal stay here, the original
benefit to the [government] is lost.” Banda-Ortiz, 445 F.3d at 390
8
(quoting Ballenilla-Gonzalez v. I.N.S., 546 F.2d 515, 521 (2d. Cir.
1976)).
Further, if we held that granting a motion to reopen nullifies
the effects of a prior violation of a voluntary departure order, we
would put persons who violated their departure orders at a
procedural advantage over those who complied with the terms of
their orders. That is because a person who complies with a
voluntary departure order forfeits the right to file a motion to
reopen. See 8 C.F.R. § 1003.2(d) (stating that a person must be
present in the United States to file a motion to reopen). If we
held that granting a motion to reopen retroactively nullifies a
prior violation of a voluntary departure order, it would create
incentives for persons not to comply with their voluntary departure
orders. Such an interpretation would be contrary to the statutory
purpose of voluntary departure - to allow a quick departure at no
cost to the government. See Ngarurih, 371 F.3d at 194. For these
reasons, the BIA properly found that § 1229c(d) statutorily barred
Odogwu from adjustment of status.
B.
Odogwu’s remaining arguments are without merit. Odogwu argues
that because the government failed to oppose the IJ’s decision to
reopen Odogwu’s removal proceedings, the matter should have
9
proceeded on the merits of Odogwu’s adjustment of status
application.6
Odogwu’s argument is unconvincing. The government’s failure
to oppose the IJ’s order reopening Odogwu’s case does not mean that
it abandoned its right to present legal arguments against Odogwu’s
application for adjustment of status. See DaCosta, 449 F.3d at 51(“Although the [government] did not oppose the motion to reopen,
the [government] did not waive its right to present an argument
against [petitioner’s] request for adjustment of status . . . .”).
Regardless of whether the IJ correctly granted the motion to
reopen, once Odogwu abandoned his asylum request, he was
statutorily ineligible for the only remaining form of relief sought
- adjustment of status. See id. at 51. Further proceedings would
have been futile, and the government was within its right to move
to have Odogwu’s case pretermitted.
Also, permitting Odogwu to proceed with his adjustment of
status application after withdrawing his asylum claim would have
allowed Odogwu to circumvent the time limits imposed on motions to
reopen. Because Odogwu filed his motion to reopen more than ninety
6
Odogwu also argues that the government’s motion to pretermit
is actually an untimely motion to reconsider an IJ’s order. Odogwu
is incorrect. Motions to reconsider can only be filed after entry
of a final administrative order of removal. 8 U.S.C. §
1229a(c)(6)(B). The order granting a motion to reopen is an
interlocutory order, not a final order of removal. See In re M-S-,
22 I. & N. Dec. 349, 354 (BIA 1998). Therefore, the government
could not have filed a motion to reconsider the IJ’s order granting
Odogwu’s motion to reopen.
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days after a final order of removal had been entered against him,
he had to satisfy one of the statutory exceptions to the ninety-day
limit. See 8 U.S.C. § 1229a(c)(7)(C)(I). Odogwu claimed
eligibility for asylum, one of the statutory exceptions, and the IJ
granted the motion to reopen based on this asylum claim. See id.
at § 1229a(c)(7)(C)(ii). However, once the IJ granted his motion
to reopen, Odogwu abandoned his asylum petition and chose to
proceed solely on his application for adjustment of status based
upon his marriage to a United States citizen. Had Odogwu
originally filed his motion to reopen on the basis of his recent
marriage to a United States citizen, it would have been denied as
untimely for failure to meet one of the statutory exceptions to the
ninety-day limit. See id. at §§ 1229a(c)(7)(C)(i)-(iv). If we
allowed Odogwu to proceed with his adjustment of status application
after he withdrew the only basis for having his case reopened more
than ninety days after a final order of removal had been entered
against him, we would create an unintended and unnecessary loophole
to the time limits Congress imposed on motions to reopen.
Therefore, the BIA properly granted the government’s motion to
pretermit.
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IV.
For the foregoing reasons, we deny the petition for review
and affirm the ruling of the Board of Immigration Appeals.
AFFIRMED
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