Azararte v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR AZARTE; CELIA  No. 02-73947
CASTELLON,
Petitioners, Agency Nos.
v.  A76-356-446
A76-356-447
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 14, 2004—San Francisco, California
Filed January 18, 2005
Before: Stephen Reinhardt, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Reinhardt
743
746 AZARTE v. ASHCROFT
COUNSEL
Marina Pineda-Kamariotis, Law Office of Marina Pineda-
Kamariotis, San Francisco, California, for the petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Washington, DC; David V. Bernal, Assistant Director, Office
of Immigration Litigation, Civil Division, Washington, DC;
Jamie M. Dowd, Trial Attorney, Office of Immigration Liti-
gation, Civil Division, Washington, DC, for the respondents.
OPINION
REINHARDT, Circuit Judge:
Under the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), does the Board of Immigration
AZARTE v. ASHCROFT 747
Appeals (BIA) abuse its discretion when it dismisses a motion
to reopen, timely filed by an alien during his voluntary depar-
ture period, because the alien subsequently fails to depart
prior to the end of that period while awaiting the BIA’s deci-
sion? We conclude that it does and that the BIA must decide
the motion on the merits.
I. BACKGROUND
Salvador Azarte and Celia Castellon (“the Azartes”) are
natives and citizens of Mexico who entered the United States
without inspection in 1987. On April 20, 1990, the Azartes
were married in California. They have two children, Jahir,
who is now nine, and Nahivy, who is now ten. Both children
are U.S. citizens.
The Immigration and Naturalization Service (“INS”) com-
menced removal proceedings against the petitioners on April
17, 1997. The Azartes were charged with being subject to
removal as aliens present in the United States without being
admitted or paroled. See Immigration and Naturalization Act
(“INA”) § 212(a)(6)(A)(I); 8 U.S.C. § 1182(a)(6)(A)(i)
(2004). Petitioners conceded their removability and requested
relief in the form of cancellation of removal, INA § 240A(b),
8 U.S.C. § 1229b(b) (2004), and, in the alternative, voluntary
departure, INA § 240B, 8 U.S.C. § 1229c (2004). On April 5,
1999, the Immigration Judge (“IJ”) denied their request for
cancellation of removal but granted voluntary departure.
In denying cancellation of removal, the IJ concluded that
the Azartes had established two of the statutory requirements
for such relief—ten years continuous residence and good
moral character during such period.1 However, the IJ decided
1
8 U.S.C. § 1229b(b) (1997) provided that an individual applying for
cancellation of removal must prove that:
(1) he has been physically present in the United States for a
continuous period of not less than 10 years immediately preced-
ing the date of such application;
748 AZARTE v. ASHCROFT
that the Azartes failed to establish the third requirement,
namely that removal to Mexico would result in exceptional
and extremely unusual hardship to their United States citizen
children. The Azartes’ children, who were three and four
years old at the time, were in good health and did not suffer
from any mental, emotional, or physical problems at the time
of the IJ’s hearing.
The Azartes appealed the IJ’s decision to the BIA, and, on
April 23, 2002, the BIA affirmed the IJ’s decision without
opinion and permitted the Azartes thirty days, until May 22,
2002, to depart voluntarily from the country. On the bottom
of the order, the BIA notified the petitioners of the three con-
sequences of failing to depart within that period: (1) “the alien
shall be removed,” (2) “the alien shall be subject to a civil
penalty of not less than $1,000 and not more than $5,000,”
and (3) the alien “shall be ineligible for a period of 10 years
for any further relief.”
On May 16, 2002, seven days prior to the expiration of the
thirty days allotted for voluntary departure, the petitioners
timely filed a motion to reopen with the BIA pursuant to 8
U.S.C. § 1229a(c)(6)(A) (2004) and 8 C.F.R. § 3.2(c) (2002)
(later recodified as 8 C.F.R. § 1003.2(c) (2004)). With their
motion to reopen, the Azartes requested a stay of deportation
and submitted evidence regarding their son Jahir’s newly
diagnosed mental disabilities. The Azartes hoped that this
information would persuade the BIA that their departure from
the United States would constitute an exceptional and
extremely unusual hardship for their American-citizen son.
(2) he has been a person of good moral character during such
period;
(3) removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent
residence.
AZARTE v. ASHCROFT 749
Among the new evidence that the Azartes included in their
motion to reopen was a statement from psychologist Jose
Lopez, Ph.D., to whom Jahir had been referred by a school
counselor because of his behavioral problems. Dr. Lopez
diagnosed Jahir as suffering from Attention Deficit Hyperac-
tivity Disorder (ADHD). He recommended medical evalua-
tion by a child psychiatrist and pediatrician and a
comprehensive treatment plan, including individual therapy,
medication, behavior modification, and collaborative inter-
vention by Jahir’s parents and school. Dr. Lopez also recom-
mended continued regular treatment for Jahir’s inadequate
control over his bodily functions, including enuresis and
encopresis. The Azartes also submitted a letter from Illana
Kent, M.A., a psychotherapist, who stated that Jahir, in addi-
tion to having ADHD, suffered from increased anxiety and
depression, for which he was receiving ongoing treatment.
Finally, the Azartes included a declaration from Jahir’s
mother averring that her husband’s medical insurance from
his job in the United States was the source of payment for
Jahir’s therapy. She also stated that the family would be
unable to afford continued treatment and medicine for her son
if they were deported to Mexico.
The BIA did not act on the petitioners’ motion until
approximately six months later, on October 28, 2002. Then,
in a one-judge order, the BIA concluded that, because the
petitioners failed to depart voluntarily as specified, they were
ineligible for cancellation of removal. The Azartes timely
filed a petition for review with this court.
II. JURISDICTION
We have jurisdiction over the BIA’s denial of the Azartes’
motion to reopen pursuant to 8 U.S.C. § 1252. See Zazueta-
Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir. 2003).
750 AZARTE v. ASHCROFT
III. ANALYSIS
A. Explanation of the Issue
We must decide whether, under IIRIRA, the BIA’s failure
to rule on a petitioner’s motion to reopen prior to his volun-
tary departure date either requires or authorizes it to decline
to rule on the merits of the motion. In IIRIRA, Congress pro-
vided for both voluntary departures and motions to reopen. At
the conclusion of removal proceedings, an alien may be
granted up to 60 days within which to voluntarily depart and
may file a single motion to reopen within 90 days. See 8
U.S.C. § 1229c(b)(2) (2004); 8 U.S.C. § 1229a(c)(6)(i)
(2004). This case concerns the interrelationship between these
statutory provisions and the pertinent regulations of the Exec-
utive Office for Immigration Review (EOIR), Immigration
and Naturalization Service (INS), the Department of Justice
(DOJ), and the Department of Homeland Security (DHS).
[1] Under the BIA’s current interpretation, the INA’s vol-
untary departure and motion to reopen provisions affect each
other in two ways. First, if an alien departs within his volun-
tary departure period, he forfeits any motion to reopen he may
have filed because he is no longer within the United States.
8 C.F.R. § 1003.2(d) (2004). Second, as demonstrated by the
BIA’s decision in the Azartes’ case, the BIA has decided that
if an alien fails to depart within his voluntary departure
period, he also forfeits any pending motion to reopen because
he has violated his voluntary departure order and is, therefore,
no longer eligible to receive the underlying relief.2 The BIA’s
2
See 8 U.S.C. § 1229c(d) (2004) (explaining that failing to depart will
result in a fine of $1,000-$5,000 and ineligibility “for a period of 10 years
for any further relief under this section [voluntary departure] and sections
240A [cancellation of removal ], 245 [adjustment of status], 248 [change
of nonimmigrant classification], and 249 [record of lawful admission]”).
Thus, under the BIA’s interpretation, an alien who chooses to wait for the
BIA to act not only forfeits his pending motion to reopen but is barred
from obtaining relief for a 10 year period.
AZARTE v. ASHCROFT 751
interpretation is not required by any EOIR, INS, DOJ, or DHS
regulation.3 The consequences of the interpretation, however,
are drastic. As the BIA rarely if ever rules on a motion to
reopen before an alien’s voluntary departure period has
expired, the interpretation serves to deprive aliens who are
afforded voluntary departure of their statutory right to a deter-
mination on the merits of motions to reopen.
In the Azartes’ case, the couple filed their motion to reopen
well within both their voluntary departure period and the 90-
day statutory period for motions to reopen. However, as is the
case generally, the BIA had not ruled on their motion by the
date they were required to depart voluntarily. Had the Azartes
left prior to that date or at any time before the BIA acted on
their motion to reopen, the BIA would have dismissed the
motion on the ground that the Azartes were no longer in the
country. Instead, they stayed, only to have the BIA summarily
dismiss their motion because they had failed to depart. Either
way, stay or go, under the BIA’s interpretation, the Azartes
were precluded from obtaining a ruling on the merits of their
properly filed, timely motion to reopen. Under that interpreta-
tion, it is not only the Azartes but the large class of aliens
afforded voluntary departure who are functionally deprived of
their statutory right to file a motion to reopen as a result of the
requirements and consequences of the award of voluntary depar-
ture.4
3
Indeed, the Department of Justice explicitly “has not adopted any posi-
tion” on the effect of voluntary departure periods on motions to reopen.
Inspection and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.
Reg. 10,312, 10,325-26 (March 6, 1997) (interim rule).
4
It would not have helped the Azartes to have asked for an extension of
their voluntary departure period, although they did request a stay of
removal that was never acted upon by the BIA. First, under the Depart-
ment of Justice’s interpretation, aliens may not receive more than 60 days
for voluntary departure when granted at the conclusion of the removal pro-
ceedings. 8 C.F.R. § 1240.26(e). Therefore, even if the Azartes had been
granted the additional 30 permissible days, it would not have mattered
752 AZARTE v. ASHCROFT
B. History of Motions to Reopen and Voluntary Departure
To understand the relationship between motions to reopen
and voluntary departure, a short history of these provisions is
useful.
1. Motions to Reopen
A motion to reopen is a traditional procedural mechanism
in immigration law with a basic purpose that has remained
constant—to give aliens a means to provide new information
relevant to their cases to the immigration authorities. See
Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr,
Immigration Law and Procedure § 3.05[7][a] (2004) [herein-
after Immigration Law and Procedure]. Motions to reopen
were entertained by the Immigration Bureau at least as early
as 1916,5 and, with the rise of the administrative state, this
form of relief was included in regulations.6 See Achacoso-
because the BIA did not decide their motion to reopen for over five
months. Moreover, “[u]nder present practice the Board does not consider
requests to extend time for voluntary departure,” making any such request
futile. Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immi-
gration Law and Procedure § 3.05[7][d] (2004). This policy is in stark
contrast to the BIA’s pre-IIRIRA practice, when the district director often
reinstated voluntary departure nunc pro tunc, if the alien demonstrated a
present willingness to depart. See Immigration Law and Procedure
§ 74.02[4][a].
5
See, e.g., Chew Hoy Quong v. White, 244 F. 749, 749 (9th Cir. 1917)
(concerning an application to reopen to explain discrepancies in testi-
mony); Ex Parte Chan Shee, 236 F. 579 (N.D. Cal. 1916) (concerning an
application to the Immigration Bureau to reopen for proof of marriage).
6
See, e.g., New Regulations Governing the Arrest and Deportation of
Aliens, 6 Fed. Reg. 68, 71-72 (January 4, 1941) (containing the first men-
tion of motions to reopen in the Federal Register and promulgating regula-
tions under Title 8, Chpt. 1, § 19.8 for motions to reopen); see also Board
of Immigration Appeals: Power; and Reopening or Reconsideration of
Cases, 27 Fed. Reg. 96, 96-97 (January 5, 1962) (promulgating the origi-
nal § 3.2 reopening provision upon which the current motion to reopen
regulation is based).
AZARTE v. ASHCROFT 753
Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir. 1985); Immi-
gration Law and Procedure § 3.05[7][a]. These regulations
did not provide a time limit for motions to reopen. See, e.g.,
New Regulations Governing the Arrest and Deportation of
Aliens § 19.8(a), 6 Fed. Reg. 68, 71-72 (January 4, 1941); 8
C.F.R. § 3.2 (1995); Socop-Gonzales v. INS, 272 F.3d 1176,
1190 (9th Cir. 2001). Then, approximately 50 years later,
Congress, in the Immigration Act of 1990 (IMMACT 90),
demonstrated concern that aliens were abusing certain forms
of regulatory relief, including motions to reopen. 101 Pub. L.
649, §545; 104 Stat. 4978, 5066. It directed the Attorney Gen-
eral to conduct a study on the use of motions to reopen and
required him to place limits on the time period for, and
allowed number of, such motions. Id.7 Pursuant to IMMACT
90, the Department of Justice promulgated a final rule on
April 29, 1996 that required that any “motion [to reopen]
must be filed not later than 90 days after the date on which
the final administrative decision was rendered in the proceed-
ing sought to be reopened . . . .” Executive Office for Immi-
gration Review; Motions and Appeals in Immigration
Proceedings, 61 Fed. Reg. 18,900, 18,905 (April 29, 1996).
Significantly, a major change in the status of motions to
reopen came in 1996 with the enactment of IIRIRA. Motions
to reopen were transformed from a regulatory to a statutory
form of relief. Specifically, IIRIRA provided the first statu-
tory right to a motion to reopen. 8 U.S.C. § 1229a(c)(6)(a)
(1996). This statutory authorization has remained to the pres-
ent day. 8 U.S.C. § 1229a(c)(6)(A) (2004). In addition, the
regulations creating a 90-day filing period and limiting aliens
to a single motion to reopen that the Department of Justice
had promulgated were enacted as statutory requirements.8 8
7
In 1991, the Attorney General’s report found that there was “no abuse”
of motions to reopen. Attorney General’s Report to Congress on Consoli-
dation of Requests for Relief from Deportation, 68 Interpreter Releases
907, 908 (July 22, 1991).
8
This 90-day time limit does not apply in asylum cases involving
changed circumstances. See 8 U.S.C. § 1229a(c)(6)(C)(ii).
754 AZARTE v. ASHCROFT
U.S.C. § 1229a(c)(6)(C)(i) (2004); 104 Pub. L. 208 § 304
(amending § 240(c)(6)(C)(i) of the INA) (“Except as provided
in this subparagraph, the motion to reopen shall be filed
within 90 days of the date of entry of a final administrative
order of removal.”).
These new statutory provisions were implemented by 8
C.F.R. § 3.2(c) (1997)9 and recodified as 8 C.F.R. § 1003.2(c)
(2004).10 Important to the case before us, neither the statute
nor the BIA regulations establish a time by which the BIA
must make its decision regarding a motion to reopen. In prac-
tice, it takes the BIA more than a month and often many
months or even years to issue a decision. See, e.g., Press
Release, Dept. of Justice, Attorney General Issues Final Rule
Reforming Board of Immigration Appeals Procedure (August
23, 2002) available at http://www.usdoj.gov/opa/pr/2002/
August/02_eoir_489.htm (last visited November 19, 2004)
(explaining that, as of February 2002, the BIA had a back
load of 56,000 cases, over 10,000 of which had been pending
for more than three years).
2. Voluntary Departure
Voluntary departure also has a long history in American
immigration law, dating back at least through four generations
of immigrants.11 It was “a device originally developed by
9
Inspection and Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.
Reg. 10,312 (March 6, 1997) (interim rule).
10
Aliens and Nationality; Homeland Security; Reorganization of Regu-
lations, 68 Fed. Reg. 9824 (February 28, 2003) (final rule).
11
See, e.g., United States ex rel. Patton v. Tod, 292 F. 243, 244
(S.D.N.Y. 1923) (containing the first mention of voluntary departure in a
federal reporter); Control of Persons Entering and Leaving the United
States Pursuant to the Act of May 22, 1918, As Amended, 6 Fed. Reg.
5911, 5912 (November 22, 1941) (promulgating regulation concerning
“[a]liens under deportation proceedings who are given permission to
depart at their own expense in lieu of deportation”).
AZARTE v. ASHCROFT 755
administrative officers, in the absence of a specific mandate
in the statute.” Immigration Law and Procedure § 74.02[1]. In
1940, Congress first provided statutory authority for voluntary
departure. Id. (explaining that the Alien Registration Act of
1940 § 20, 54 Stat. 670, 672-73, first statutorily provided this
relief). Voluntary departure serves the practical goals of
reducing the costs associated with deporting individuals from
the United States and providing a mechanism for illegal aliens
to leave the country without being subject to the stigma or
bars to future relief that are part of the sanction of deportation.12
Prior to IIRIRA, the authority for voluntary departure was
contained in INA § 244(e), 8 U.S.C. § 1254(e) (1995)
(repealed 1996), which provided no time restriction on the
period of voluntary departure. In practice, voluntary departure
was granted for generous periods of time. See Austin T. Fra-
gomen, Jr. & Steven C. Bell, Immigration Fundamentals
§ 7:4.6[A] (4th ed. 2004) (“Voluntary departure was often
granted for periods exceeding 120 days under [pre-IIRIRA]
law, sometimes in one or two-year increments for certain
classes of aliens.”); Stephen Yale-Loehr & Stanley Mailman,
Myth of April 1: How the 1996 Immigration Law Affects Peo-
ple Out of Status in the U.S., available at http://
www.clubcyrus.com/twmlaw/resources/1996/19963cont.htm
(last visited November 19, 2004) (explaining that, before
IIRIRA, the INS “often granted voluntary departure for up to
a year at a time.”).
IIRIRA drastically limited the time allowed for voluntary
departure. Aliens can now be granted a maximum of 120
days, if voluntary departure is granted before the conclusion
12
See, e.g., Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,
62 Fed. Reg. 10,312, 10,324 (interim rule) (March 6, 1997) (explaining
that voluntary departure allows the Service to allocate its enforcement
resource more efficiently, saves resources as the aliens depart at their own
expense, and “benefits the aliens involved by allowing them to avoid the
harsh consequences of a formal deportation order”); Immigration Law and
Procedure § 74.02[2][b].
756 AZARTE v. ASHCROFT
of the proceedings before the immigration judge,13 and 60
days, if granted when the immigration judge enters his order.14
IIRIRA § 304; (creating INA § 240B, codified at 8 U.S.C.
§ 1229c (2004)). Generally, the EOIR, INS, and DHS have
interpreted this deadline strictly. See, e.g., 8 C.F.R.
§ 1240.26(f) (2004) (“In no event can the total period of time,
including any extension, exceed 120 days or 60 days as set
forth in section 240B of the Act [8 U.S.C. § 1229c]”). How-
ever, in issuing the latest regulations concerning the relation-
ship between these provisions, the Department of Justice
explained that it “has not adopted any position” on the ques-
tion before us today: the effect of voluntary departure periods
on motions to reopen. Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
10,312, 10,325-26 (March 6, 1997) (interim rule). Accord-
ingly, we today confront a BIA adjudicatory decision rather
than a product of reasoned notice-and-comment rulemaking.
C. Statutory Interpretation
In reviewing administrative interpretations of statutes, we
look first to the principles set forth in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). The first step under Chevron is to determine whether
the statutory meaning is unambiguous. Id. at 843. No defer-
ence to the view of the administrative agency is necessary
when “normal principles of statutory construction suffice” to
determine the statute’s meaning. See, e.g., Perez-Gonzales v.
Ashcroft, 379 F.3d 783, 786 (9th Cir. 2004) (citations omit-
ted). Such is the case here.
13
8 U.S.C. § 1229c(a)(2)(A) (2004); 8 C.F.R. § 1240.26(b)(1)(i)(A)
(2004). Furthermore, before the completion of the hearing, the parties can
stipulate to 120 days of voluntary departure. 8 C.F.R. § 1240.26(b)(2)
(2004).
14
8 U.S.C. § 1229c(b)(2) (“Permission to depart voluntarily under this
subsection shall not be valid for a period exceeding 60 days.”)
AZARTE v. ASHCROFT 757
[2] “The starting point for [the] interpretation of a statute
is always its language,” Community for Creative Non-
Violence v. Reid, 490 U.S. 730, 739 (1989), and “courts must
presume that a legislature says in a statute what it means and
means in a statute what it says there,” Connecticut Nat’l Bank
v. Germain, 503 U.S. 249, 253-254 (1992). With respect to
motions to reopen and voluntary departure, Congress’ lan-
guage in IIRIRA is clear and unambiguous:15 “An alien may
file one motion to reopen proceedings.” 8 U.S.C.
§ 1229a(c)(6)(A) (2004). “[T]he motion to reopen shall be
filed within 90 days of the date of entry of a final administra-
tive order of removal.” 8 U.S.C. § 1229a(c)(6)(C)(i) (2004).
“The Attorney General may permit an alien voluntarily to
depart the United States at the alien’s own expense . . . .” 8
U.S.C. § 1229c(a)(1) (2004). “Permission to depart voluntar-
ily under this subsection shall not be valid for a period
exceeding 60 days.” 8 U.S.C. § 1229c(b)(2) (2004). There is
no doubt that Congress intended to give the Attorney Gener-
al’s designates the ability to grant voluntary departure for up
to 60 days16 and allow aliens to file a motion to reopen within
15
Indeed, these provisions are at least as clear as the provision examined
by Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998):
Subject to subparagraph (B), any alien allowed to depart volun-
tarily under section 1254(e)(1) of this title or who has agreed to
depart voluntarily at his own expense under 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 entry, respectively.
Id. at 956 (quoting 8 U.S.C. § 1252b(e)(2)(A) (1995) (repealed 1996)).
The Shaar court held that this provision, the precursor to the current vol-
untary departure law, was “clear and unambiguous.” Id. The Shaar court
therefore did not go beyond the first step under Chevron. Id. (“Having
found that language clear and unambiguous, we need go no further and,
the Shaars’ arguments notwithstanding, we need not even consider the leg-
islative history.”).
16
This period is tolled pending appeal, and voluntary departure can sub-
sequently be reinstated after a BIA decision. See Matter of Chouliaris, 16
I. & N. Dec. 168 (BIA 1977).
758 AZARTE v. ASHCROFT
90 days. The only question is how these two provisions inter-
act. Fortunately, the traditional canons of statutory construc-
tion provide sufficient guidance to enable us to answer that
question.
1. New Law Requires New Interpretation
[3] The passage of IIRIRA drastically altered many impor-
tant statutory provisions in immigration law. Zazueta-Carrillo
v. Ashcroft, 322 F.3d 1166, 1170 (9th Cir. 2003). Such legis-
lative change forces us to reexamine our previous holdings.
Id. In particular, three major changes in both statute and prac-
tice force us to examine the applicability of Shaar v. INS, to
post-IIRIRA cases. 141 F.3d 953 (9th Cir. 1998) (holding,
pre-IIRIRA, that the BIA may deny a motion to reopen on the
ground that an alien failed to leave the country by his volun-
tary departure date, even though his motion to reopen was
filed before that date). We hold that because the rationales
that underlay Shaar are no longer applicable after IIRIRA,
Shaar does not control our decision in this case.17 Cf. Zazueta-
Carrillo, 322 F.3d at 1172 n.6 (“[G]iven the vast and striking
changes effected by IIRIRA, which vitiate or substantially
eliminate all the reasons underlying Contreras-Aragon,
Contreras-Aragon cannot control our decision here.”)
First, Shaar did not discuss any Congressional purpose to
allow motions to reopen, and for good reason.18 Pre-IIRIRA,
there was no statutory authorization for motions to reopen.
Therefore, Shaar’s statutory interpretation concerned only a
single statutory provision—a provision relating to voluntary
17
While this court has continued to cite Shaar for standard propositions
of immigration law, such as the standard of review applicable to motions
to reopen, see, e.g., Gonzalez de Martinez v. Ashcroft, 374 F.3d 759, 761
(9th Cir. 2004), we have not extended its voluntary departure analysis to
the post-IIRIRA context.
18
Nor did the BIA decision, In the Matter of Shaar, 21 I. & N. Dec. 541
(BIA 1996).
AZARTE v. ASHCROFT 759
departure—which has now been superceded. 8 U.S.C.
§ 1252b(e)(2)(A) (1995) (repealed by IIRIRA in 1996);
Shaar, 141 F.3d at 956. In the case at hand, in contrast, we
confront two new statutory provisions, both created by
IIRIRA.
Second, neither the pre-IIRIRA statute on voluntary depar-
ture nor the pre-IIRIRA regulation on motions to reopen had
any time limits. 8 U.S.C. § 1254(e) (1995) (repealed 1996); 8
C.F.R. § 3.2 (1995). Aliens were granted long periods within
which to depart and their motions to reopen were never time-
barred. See supra pp. 752-53, 754-55. These generous time-
frames made it possible for an alien to file a motion to reopen
and receive a decision during his voluntary departure period,
a possibility that, post-IIRIRA, has been practically fore-
closed by the BIA’s interpretation. For example in Shaar, the
aliens had first been given a year to depart voluntarily, were
then given a six-month extension, and could have requested
further extensions of their voluntary departure period so that
their motion to reopen might be decided during that period.
141 F.3d at 955.19 Thus, in Shaar, it is possible that the peti-
tioners could have obtained a timely resolution of their
reopening efforts. Under the BIA’s current interpretation,
however, even if the aliens were able to file their motions to
reopen immediately and even if they received the maximum
voluntary departure period of 60 days, the BIA would still,
ordinarily, not be able to render its decision before the expira-
tion of that period. See supra p. 754.
Finally, as a matter of practice, the voluntary departure
periods that were initially granted were much more generous
pre-IIRIRA. For example, aliens frequently used to receive
many months, or even a number of years, within which to vol-
untarily depart, see supra p. 755, but now routinely receive
19
Shaar repeatedly stressed as a rationale for its decision that the aliens
made “no effort” to seek a further extension of their departure time,
although such extensions were permitted pre-IIRIRA. Id. at 955, 958.
760 AZARTE v. ASHCROFT
only 30 days, half of the statutorily permissible period. Dis-
cretionary extensions could, in the past, alleviate the problems
created by any grant of a brief period for voluntary departure,
but now the Justice Department has interpreted 8 U.S.C.
§ 1229c as establishing an absolute limit on the time that can
be granted. 8 C.F.R. § 1240.26(f) (2004) (“In no event can the
total period of time, including any extension, exceed 120 days
or 60 days as set forth in section 240B of the Act.”). Today’s
aliens can no longer benefit from the practice of granting rea-
sonable extensions that could accommodate the BIA’s inabil-
ity to resolve motions to reopen expeditiously. In fact, the
current policy of the BIA appears to be not to grant any exten-
sions at all. Charles Gordon, Stanley Mailman, & Stephen
Yale-Loehr, Immigration Law and Procedure § 3.05[7][d]
(2004). (“Under present practice the Board does not consider
requests to extend time for voluntary departure.”). The BIA’s
refusal to grant sufficient periods of time for voluntary depar-
ture to allow it to decide timely filed motions to reopen and
thus to reconcile the two statutory provisions is especially
perplexing because the BIA has for more than a quarter-
century extended the voluntary departure period in the appel-
late context. See, e.g., Matter of Chouliaris, 16 I. & N. Dec.
168 (BIA 1977) (tolling voluntary departure period automati-
cally pending BIA appeal from the immigration judge’s deci-
sion and reinstating a voluntary departure period after appeal
decision); Matter of Villegas Aguirre, 13 I. & N. Dec. 139
(BIA 1969) (holding that an appeal tolls the running of the
voluntary departure period).
[4] Because Congress now authorizes an alien to file a
motion to reopen within 90 days and has sharply reduced the
time period for voluntary departure and because the two statu-
tory provisions currently contain potentially conflicting terms,
Shaar does not control our decision here. Rather, we must
interpret the new IIRIRA provisions in the first instance.
AZARTE v. ASHCROFT 761
2. Statutes Are Interpreted As A Whole
[5] It is an established canon of construction that, when
interpreting statutes, courts are generally obligated to look at
the statute as a whole. See, e.g., William N. Eskridge, Jr. &
Phillip P. Frickey, Legislation: Statutes and the Creation of
Public Policy 645 (1988) (describing the “Whole Act Rule”).
“When interpreting a statute, the court will not look merely to
a particular clause in which general words may be used, but
will take in connection with it the whole statute . . . and the
objects and policy of the law, as indicated by its various pro-
visions, and give to it such a construction as will carry into
execution the will of the Legislature.” Kokoszka v. Belford,
417 U.S. 642, 650 (1974) (citation omitted). Under this statu-
tory approach, which prudently interprets a statute as if all of
its provisions have meaning, the statutory interpretation of the
motion to reopen and voluntary departure provisions must be
such that both provisions have force. See Eskridge & Frickey,
Legislation at 646 (“The key to the whole act approach is,
therefore, that all provisions and other features of the enact-
ment must be given force, and provisions must be interpreted
so as not to derogate from the force of other provisions and
features of the whole statute.”). The BIA’s interpretation,
however, deprives the motion to reopen provision of meaning
by eliminating the availability of such motions to those
granted voluntary departure. An approach more consistent
with the statute as a whole is to toll the voluntary departure
period when an alien, prior to the expiration of his voluntary
departure period, files a timely motion to reopen, at least
when he requests a stay of removal.20 Such an interpretation
20
Our ability to toll the voluntary departure period is predicated on the
fact that the Azartes filed their motion to reopen before their period for
voluntary departure elapsed. See Desta v. Ashcroft, 365 F.3d 741 (9th Cir.
2004) (staying the voluntary departure period when it had not yet expired)
El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (same); see also
Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir. 2004) (holding that the
voluntary departure period could not be stayed when the motion was filed
after it had expired); Gonzalez de Martinez, 374 F.3d at 763 (holding that
the BIA properly denied a motion to reopen when it was filed after the
voluntary departure period had expired) (emphasis added); Zazueta-
Carrillo, 322 F.3d at 1174 (same).
762 AZARTE v. ASHCROFT
would effectuate both statutory provisions. IJs and the BIA
could still grant voluntary departure periods of up to 60 days
only, but, then, if that period were tolled, they would retain
the authority Congress intended: to determine one non-
frivolous motion to reopen.
3. No Absurd Interpretations
[6] Another traditional canon of statutory construction that
necessitates tolling the voluntary departure period is that we
must avoid interpretations that would produce absurd results.
See, e.g., United States v. Wilson, 503 U.S. 329, 334 (1992);
Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (rejecting
and affording no deference to a legal interpretation by the
BIA that “contravenes the statute and leads to absurd and
wholly unacceptable results”). We find the notion nonsensical
that Congress would have allowed aliens subject to voluntary
departure to file motions to reopen but would have simulta-
neously precluded the BIA from issuing decisions on those
motions. Put another way, we find it absurd to conclude that
Congress “intended to allow motions to reopen to be filed but
not heard.” Shaar, 141 F.3d at 960 (Browning, J., dissenting).
As the Azartes requested a stay of removal, we need not reach the ques-
tion whether filing a motion to reopen automatically tolls the voluntary
departure period, although automatic tolling would be consistent with the
legislative scheme. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asy-
lum Procedures, 62 Fed. Reg. 10312, 10321, 10325-26 (March 6, 1997)
(interim rule).
Interpreting a request for a stay of removal as including a request to toll
the voluntary departure period is consistent with Desta v. Ashcroft. 365
F.3d 741, 749 (9th Cir. 2004) (construing a stay of removal request pend-
ing our review as including a request for a stay of voluntary departure
when the request was filed within the voluntary departure period). In this
context, “staying” and “tolling” the voluntary departure period have the
same meaning, and we and the BIA have both used the terms interchange-
ably with regard to the voluntary departure period.
AZARTE v. ASHCROFT 763
That the BIA’s interpretation of the statute is patently incon-
sistent with the statutory purpose is further demonstrated by
the fact that voluntary departure and motions to reopen both
are the subject of a long, uninterrupted, historic practice in
immigration law. See Part III.B. We find absurd the proposi-
tion that Congress, while expressly codifying the tradition of
motions to reopen, intended sub silentio to preclude their
availability in a significant number of cases, likely a substan-
tial majority. The most straightforward way of avoiding this
absurdity is to toll the voluntary departure period pending the
BIA’s decision, as the Justice Department considered doing
by express provision when it adopted its interim rule.21
4. Construction in Favor of Aliens
[7] Finally, it is a well-established canon of construction
that “deportation statutes should be construed in favor of the
alien.” Kwai Fun Wong v. United States, 373 F.3d 952, 962
(9th Cir. 2004); see also INS v. St. Cyr, 533 U.S. 289, 320
(2001) (applying “the longstanding principle” of interpreting
deportation statutes in favor of the alien) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987)); Montero-
Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir. 2002).
The application of this canon is clear in this case. Preventing
aliens from receiving decisions on their motions to reopen
would eliminate all possibility of redress if their circum-
stances changed. If Congress desired such a draconian result,
we are confident it would have said so.
21
The interim rule promulgated by the Department of Justice has never
been replaced by a final one, which would now be adopted by the Depart-
ment of Homeland Security. When promulgating the interim rule, the Jus-
tice Department explicitly stated that its rule did not resolve how motions
to reopen and voluntary departure periods should be construed together;
it suggested that tolling the voluntary departure period was one logical res-
olution, but avoided making a regulatory decision on the issue until the
adoption of a final rule. Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asy-
lum Procedures, 62 Fed. Reg. 10,312, 10,325-26 (March 6, 1997) (interim
rule).
764 AZARTE v. ASHCROFT
IV. CONCLUSION
[8] To avoid creating an incompatibility in the statutory
scheme, to implement a workable procedure for motions to
reopen in cases in which aliens are granted voluntary depar-
ture, and to effectuate the purposes of the two statutory provi-
sions, we hold that in cases in which a motion to reopen is
filed within the voluntary departure period and a stay of
removal or voluntary departure is requested, the voluntary
departure period is tolled during the period the BIA is consid-
ering the motion. Such an interpretation is the most consistent
with IIRIRA’s legislative scheme because, unlike the BIA’s
interpretation, it gives effect to both 8 U.S.C. § 1229a(c)
(6)(A) (2004) and 8 U.S.C. § 1229c(a)(1) (2004). Therefore
the petition for review is granted and the Azartes’ motion to
reopen is remanded to the BIA with instructions to consider
it on the merits.
PETITION GRANTED.