Patel, Rashmika v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1265
RASHMIKA PATEL,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 74 546 411.
____________
SUBMITTED FEBRUARY 27, 2004—DECIDED AUGUST 3, 2004
____________
Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Once again we deal with issues
arising from the removal (deportation) of an alien in vio-
lation of a stay granted by this court. Dimitrov v. Ashcroft,
368 F.3d 960 (7th Cir. 2004) (per curiam). Rashmika Patel, a
native of India, was arrested by the Bureau of Immigration
and Customs Enforcement (BICE) in July 2003 when she
appeared at an office of the Bureau to request a work permit
based on her recent marriage to a U.S. citizen. The basis of
the arrest was an outstanding removal order that had been
entered against her in absentia in August of 1998. Upon
2 No. 04-1265
being arrested she sought to reopen the removal case, and
after the Board of Immigration Appeals turned her down
she filed a petition for review in this court. A few weeks
later, at 7:45 a.m. on February 27 of this year, BICE phoned
her lawyer to tell him that Patel had been moved to a
“staging facility” for removal, though he didn’t tell the
lawyer, and the lawyer was unable to discover by calling
others in BICE, when she would be removed. The lawyer
did not ask us for a stay of removal until sometime after 3
p.m. At 3:50, BICE was informed that a judge of this court
had granted a stay. This information was relayed in only a
few minutes to the agent who had accompanied Patel to the
airport for her flight to India, but by this time the flight had
left. Patel is now in India.
Under both the transitional rules of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 that gov-
ern Patel’s case and the permanent rules, filing a petition for
review with this court does not stay an alien’s removal.
IIRIRA § 309(c)(4)(F), reproduced in notes to 8 U.S.C. § 1101;
Sofinet v. INS, 188 F.3d 703, 706 (7th Cir. 1999); Al Najjar v.
Ashcroft, 273 F.3d 1330, 1338 n. 6 (11th Cir. 2001) (per
curiam); see also 8 U.S.C. § 1252(b)(3)(B). So Patel was
subject to removal at any time after the entry of the removal
order more than five years ago (except, as we’ll see, during
the interval when her petition to reopen was pending before
the Board of Immigration Appeals); the long delay in asking
this court for a stay was a serious error by her lawyer.
He says he didn’t file the motion for a stay of removal
earlier because his client was entitled to an administrative
stay on the basis of a pending motion that she had filed with
the Board of Immigration Appeals to reconsider its decision
turning down her motion to reopen her case. A regulation
provides that “except in cases involving in absentia orders,
the filing of a motion to reopen or a motion to reconsider
No. 04-1265 3
shall not stay the execution of any decision made in the
case,” 8 C.F.R. § 1003.23(b)(1)(v)—and Patel’s was an in
absentia case. But the provision we have just quoted applies
only to motions to reopen or reconsider decisions by an
immigration judge, not motions to reopen or reconsider
decisions of the Board of Immigration Appeals. Such motions
are governed by 8 C.F.R. § 1003.2(f), which provides that
“the filing of a motion to reopen or a motion to reconsider
shall not stay the execution of any decision made in the
case . . . except where a motion is filed pursuant to the
provisions of §§ 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A).”
Those sections specify the procedures for filing motions to
reopen in absentia orders, but do not mention motions to
reconsider.
A motion to reconsider asks that a decision be reexamined
in light of additional legal arguments, a change of law, or an
argument that was overlooked earlier, while a motion to
reopen asks for reconsideration on the basis of facts or
evidence not available at the time of the original decision,
such as changed country conditions. So whereas a motion to
reconsider rehashes arguments that should have been
presented the first time around, a motion to reopen calls
attention to potentially vital information that could not have
been presented earlier. Kurzban’s Immigration Law Sourcebook
738, 744 (8th ed. 2002). In granting stays of deportation
while motions to reopen were pending with the BIA, we
have remarked that due process might be infringed by
denying stays to aliens who had possibly meritorious mo-
tions to reopen pending. See Castaneda-Suarez v. INS, 993
F.2d 142, 145-46 (7th Cir. 1993); see also Gutierrez-Rogue v.
INS, 954 F.2d 769, 773 (D.C. Cir. 1992). We cannot find any
cases in which a similar concern has been expressed with
regard to stays of deportation while motions to reconsider
were pending. We conclude that Patel’s removal was not
4 No. 04-1265
stayed by virtue of the filing of a motion to reconsider the
denial of her motion to reopen.
The government has moved to dismiss Patel’s petition
for review on the ground that a court has no jurisdiction to
review an order of removal or deportation after the alien
has been removed. And so the statute provides. IIRIRA
§ 309(c)(4), reproduced in notes to 8 U.S.C. § 1101; 8 U.S.C.
§ 1105a(c) (1996) (“an order of deportation . . . shall not be
reviewed by any court if the alien . . . has departed from the
United States after issuance of the order”); Robledo-Gonzales
v. Ashcroft, 342 F.3d 667, 674 n. 7 (7th Cir. 2003); Swaby v.
Ashcroft, 357 F.3d 156, 160 n. 8 (2d Cir. 2004); Lara v.
Trominski, 216 F.3d 487, 491-92 (5th Cir. 2000), though only
for cases governed either by the transitional rules or by the
Immigration and Nationality Act as it stood before IIRIRA
was enacted. Swaby v. Ashcroft, supra, 357 F.3d at 160 n. 8;
Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001). But
what if, as in this case, the alien is removed in violation of
a stay issued by a court? The Supreme Court left this question
open in United States v. Mendoza-Lopez, 481 U.S. 828, 837 and
n. 13 (1987), and we have never had occasion to answer it.
The language of the statute provides no conclusive answer,
because it does not explicitly address the question of illegal
removal. Several circuits, following the path cut by the
Ninth Circuit in Mendez v. INS, 563 F.2d 956 (9th Cir. 1977),
hold that the court retains jurisdiction when the deportation
was carried out in violation of a stay or other order, or in a
manner that otherwise denied the alien due process of law.
E.g., Hose v. INS, 180 F.3d 992, 995 n. 5 (9th Cir. 1999) (en
banc); Singh v. Waters, 87 F.3d 346 (9th Cir. 1996); Camacho-
Bordes v. INS, 33 F.3d 26, 28 (8th Cir. 1994); Marrero v. INS,
990 F.2d 772, 773 (3d Cir. 1993); Juarez v. INS, 732 F.2d 58, 60
(6th Cir. 1984). Other circuits, pointing out the well-nigh
unlimited reach of the exception recognized in the Mendez
line of cases, reject a general exception to the jurisdictional
No. 04-1265 5
bar for cases in which the order of removal was legally
infirm. E.g., Baez v. INS, 41 F.3d 19, 23 (1st Cir. 1994); Roldan
v. Racette, 984 F.2d 85, 90 (2d Cir. 1993); Quezada v. INS, 898
F.2d 474, 477 (5th Cir. 1990). Yet some of these courts
speculate that they might recognize an exception for
extreme circumstances—including removal in violation of
a stay, Edwards v. INS, 59 F.3d 5, 7 (2d Cir. 1995), at least if
the violation is deliberate. Baez v. INS, supra, 41 F.3d at 25.
It seems to us that the narrower exception provides the
more plausible understanding of how Congress would have
responded in drafting the jurisdictional bar had the issue
been presented to it. We doubt that Congress meant to em-
power the immigration authorities to thwart judicial review
by removing the alien from the United States in conscious
contempt of a judicial decree. But there was no willfulness
on the part of the government in this case—on the contrary,
the violation of the stay was technical and inadvertent, the
stay having been issued too late to be communicated to the
airline in time to stop the departure. Patel should not be
allowed to gain a procedural advantage from the action of
her lawyer in dawdling about seeking a stay of the original
removal order. Baez v. INS, supra, 41 F.3d at 25; Arreaza-Cruz
v. INS, 39 F.3d 909, 911 (9th Cir. 1994). Not only must the
motion for a stay of removal be dismissed as moot, there-
fore, but the petition for review must also be dismissed as
outside our jurisdiction.
SO ORDERED.
6 No. 04-1265
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-3-04