Padilla Padilla v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE J. PADILLA-PADILLA;  Nos. 02-73627
GUADALUPE D. PADILLA-ENRIQUEZ;
03-73964
ADELA ENRIQUEZ,
Petitioners, Agency Nos.
v.  A75-301-560
A75-301-561
ALBERTO R. GONZALES, Attorney A75-301-562
General,
OPINION
Respondent.

On Petitions for Review from Orders of the
Board of Immigration Appeals
Argued and Submitted
January 10, 2006—San Francisco, California
Filed September 13, 2006
Before: A. Wallace Tashima, William A. Fletcher, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge William A. Fletcher
11257
PADILLA-PADILLA v. GONZALES 11261
COUNSEL
Marc Van Der Hout, San Francisco, California, for the peti-
tioners.
David V. Bernal and Ernesto H. Molina, US Deptartment of
Justice, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Based on advice of counsel, the Padillas filed an applica-
tion for asylum shortly before the effective date of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA” or “Act”). After the Act’s effective date, the
former Immigration and Naturalization Service (“INS”)1 initi-
ated removal proceedings against them. Because these pro-
ceedings were initiated after the Act’s effective date, a ten-
year period of continuous presence in the United States was
required to qualify for relief from removal rather than the
seven-year period that had previously been required to qualify
for relief from deportation. The Padillas could not satisfy the
ten-year period.
The immigration judge (“IJ”) denied the Padillas’ applica-
tion for asylum, and granted them a period of 60 days within
which to depart voluntarily, after which an order of removal
would be entered if they had not departed. In a “streamlined”
order, the Board of Immigration Appeals (“BIA”) affirmed
the decision of the IJ, but reduced the voluntary departure
1
The INS was abolished by the Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135, and the majority of its immigration
enforcement functions were transferred to the Bureau of Immigration and
Customs Enforcement, a part of the Department of Homeland Security.
See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003).
11262 PADILLA-PADILLA v. GONZALES
period to 30 days. The Padillas moved to reopen before the
BIA based on ineffective assistance of counsel. The BIA
denied the motion.
We have two consolidated petitions for review before us.
In No. 02-73627, the Padillas petition for review of the BIA’s
streamlined decision. In No. 03-73964, the Padillas petition
for review of the BIA’s denial of their motion to reopen.
We grant the petition for review in No. 02-73627 and
remand for further proceedings with respect to voluntary
departure. We deny the petition for review in No. 03-73964.
I. Background
Petitioners Jose Juan Padilla-Padilla, Adela Enriquez, and
Guadalupe D. Padilla-Enriquez (“the Padillas”) are a father,
mother, and daughter respectively. They entered the United
States without inspection in March 1989. The Padillas have
two United States citizen sons (and brothers), Jose and Ale-
jandro Padilla-Enriquez, who were born in the United States.
Their ages are 16 and 14 respectively.
On advice of their counsel, Walter Pineda, the Padillas filed
an application for asylum on January 30, 1997. The effective
date of IIRIRA was approximately two months later, on April
1, 1997. The INS denied the Padillas’ asylum application on
April 20, 1998. The next day, the INS initiated removal pro-
ceedings under IIRIRA by serving a notice to appear
(“NTA”). The NTA charged the Padillas as removable pursu-
ant to the Immigration and Nationality Act (“INA”)
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being
aliens present in the United States without having been admit-
ted or paroled. On October 7, 1998, the Padillas conceded
removability before an IJ and renewed their application for
asylum.
On January 7, 1999, the Padillas moved to terminate
removal proceedings, arguing that they should be in deporta-
PADILLA-PADILLA v. GONZALES 11263
tion proceedings instead. Prior to IIRIRA, aliens were placed
in either deportation proceedings or exclusion proceedings.
IIRIRA combined these two proceedings into a single pro-
ceeding, now called removal. See Vasquez-Zavala v. Ashcroft,
324 F.3d 1105, 1107 (9th Cir. 2003). Aliens placed in depor-
tation proceedings under pre-IIRIRA law could seek relief
from deportation through a request for suspension of deporta-
tion. See id.; see also INA § 244(a)(1), 8 U.S.C. § 1254(a)(1)
(repealed 1997). Suspension of deportation was available to
aliens who: (1) were not being deported for certain enumer-
ated offenses; (2) had been present for a continuous period of
seven years; (3) were of good moral character during that
period; and (4) the deportation of whom would result in “ex-
treme hardship” to certain enumerated parties. Id. Had the
Padillas been placed in deportation proceedings prior to the
effective date of IIRIRA, they almost certainly would have
been able to satisfy the requirement of seven years’ continu-
ous presence.
IIRIRA replaced suspension of deportation with cancella-
tion of removal. The requirements for cancellation of removal
under IIRIRA are more stringent than the prior requirements
for suspension of deportation. Cancellation of removal is
available to aliens who: (1) have been present for a continu-
ous period of at least ten years; (2) have had good moral char-
acter during that period; (3) have not been convicted of
certain enumerated offenses; and (4) the removal of whom
would result in “exceptional and extremely unusual hardship”
to certain enumerated parties. INA § 240A(b), 8 U.S.C.
§ 1229b(b). The Padillas were not eligible for cancellation of
removal because they had not been present for a continuous
period of at least ten years when the NTA was served on April
21, 1998. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1); Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002).
The IJ denied the Padillas’ motion to terminate removal
proceedings. The IJ subsequently denied the Padillas’ applica-
tion for asylum and granted them a 60-day period of voluntary
11264 PADILLA-PADILLA v. GONZALES
departure pursuant to INA § 240B, 8 U.S.C. § 1229c. If the
Padillas did not voluntarily depart within that period, an order
of removal would be entered automatically. Pursuant to its
“streamlining” authority, 8 C.F.R. § 1003.1(e)(4),2 the Board
affirmed the substance of the IJ’s order on September 30,
2002. However, the Board also added a “further order” reduc-
ing the voluntary departure period from 60 to 30 days.
II. Standard of Review
When the BIA streamlines, we review the substance of the
IJ’s decision. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855
(9th Cir. 2003) (as amended). We review purely legal claims
de novo. See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th
Cir. 2004) (as amended).
III. Petition No. 03-73964
We first address the BIA’s denial of the Padillas’ motion to
reopen based on ineffective assistance of counsel. Based on
the advice of their counsel, Walter Pineda, the Padillas filed
an application for asylum approximately two months before
the effective date of IIRIRA. Competent counsel would have
2
When the BIA issued its opinion the applicable regulation was 8 C.F.R.
§ 3.1(a)(7) (2002). Section 3.1(a)(7) later became 8 C.F.R. § 1003.1(a)(7)
(2003). See 68 Fed. Reg. 9824 (Feb. 28, 2003). Another, virtually identical
regulation was also adopted. See 8 C.F.R. § 3.1(e)(4) (2002). This regula-
tion later became 8 C.F.R. § 1003.1(e)(4). See 68 Fed. Reg. 9824 (Feb. 28,
2003). In 2003, in recognition that § 1003.1(a)(7) and § 1003.1(e)(4) were
duplicative, § 1003.1(a)(7) was replaced by § 1003.1(e)(4). Definitions;
Fees; Powers and Authority of DHS Officers and Employees in Removal
Proceedings, 69 Fed. Reg. 44903-01, 44904 (Interim Rule July 28, 2004).
The current version of the regulation appears at 8 C.F.R. § 1003.1(e)(4)
(2004). Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). The provi-
sion of the regulation at issue in this case, 8 C.F.R. § 3.1(a)(7)(iii), is iden-
tical to 8 C.F.R. § 1003.1(e)(4)(ii). Because there are no differences
affecting this appeal between the former and current versions, we cite to
the current regulation throughout the opinion. See Barroso v. Gonzales,
429 F.3d 1195, 1201 n.10 (9th Cir. 2005).
PADILLA-PADILLA v. GONZALES 11265
known that this was a very risky thing for the Padillas to do.
The strategy was to file an application for asylum that would
almost certainly be denied, and then to seek relief from the
deportation order that would follow. The obvious problem
with this strategy was that deportation — and suspension of
deportation — were available only under pre-IIRIRA law. See
Jimenez-Angeles, 291 F.3d at 597. In order to qualify for
deportation and suspension of deportation, the deportation
proceedings had to be initiated before the effective date of
IIRIRA, which was only two months after the Padillas filed
their asylum application. Id. To say the least, it was highly
unlikely that the INS would initiate deportation proceedings
within the requisite period.
Predictably, the INS never initiated deportation proceed-
ings. Instead, more than a year after the effective date of
IIRIRA, it initiated removal proceedings. As discussed above,
eligibility for cancellation of removal requires ten years of
continuous presence in the United States, rather than the
seven years that had been required for eligibility for suspen-
sion of deportation under pre-IIRIRA law. See 8 U.S.C.
§ 1229b(b)(1)(A). The Padillas could not satisfy the ten-year
requirement of § 1229b(b)(1)(A) and were therefore ineligible
for cancellation of removal.
[1] Mr. Pineda is well known to us and to others. He is cur-
rently charged, in a separate proceeding before The State Bar
of California, with twenty-nine counts of incompetence in
representing clients and five counts of moral turpitude.3
Unfortunately for the Padillas, our case law precludes relief
in this proceeding. In Lara-Torres v. Ashcroft, 383 F.3d 9683
See Gary Rivlin, Dollars and Dreams: Immigrants, as Prey, N.Y.
Times, June 11, 2006 § 3 at 4; Eliza Strickland, The Asylum Trap, Unscru-
pulous attorneys prey on immigrants seeking green cards with an expen-
sive and fruitless legal scheme. Now 29 Mexicans have joined the
disbarment case against one such lawyer, San Francisco Weekly, May 10,
2006, available at http://www.sfweekly.com/Issues/2006-05-10/news/
featur e.html.
11266 PADILLA-PADILLA v. GONZALES
(9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir. 2005),
Mr. Pineda gave the same advice he gave to the Padillas to
other aliens, with precisely the same result as in this case. We
held in Lara-Torres that there was no violation of due pro-
cess. Id. at 976. Because we are bound to follow Lara-Torres,
we deny petition No. 03-73964.
IV. Petition No. 02-73627
We next address the BIA’s streamlined affirmance of the
IJ’s order of removal and its reduction of the period of volun-
tary departure from 60 to 30 days.
A. Jurisdiction
[2] The government argues on three grounds that we lack
jurisdiction. It argues, first, that we have no jurisdiction to
review the BIA’s discretionary decision to reduce the period
of voluntary departure. See INA § 242(a)(2)(B), 8 U.S.C.
§ 1252(a)(2)(B),4 and INA § 240B(f), 8 U.S.C. § 1229c(f).5
The government acknowledges that we have jurisdiction to
review legal and constitutional issues, but argues that the
Padillas challenge an exercise of unreviewable discretionary
authority. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subpara-
graph (B) or (C), or in any other provision of this chapter
(other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitu-
4
In pertinent part 8 U.S.C. § 1252(a)(2)(B) provides:
Notwithstanding any other provision of law (statutory or nonsta-
tutory), . . . and except as provided in subparagraph (D) . . . no
court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under sec-
tion . . . 1229c . . . of this title.
5
In pertinent part 8 U.S.C. § 1229c(f) provides:
No court shall have jurisdiction over an appeal from denial of a
request for an order of voluntary departure under subsection (b)
of this section.
PADILLA-PADILLA v. GONZALES 11267
tional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accor-
dance with this section.”); Notash v. Gonzales, 427 F.3d 693,
695-96 (9th Cir. 2005). We disagree. The Padillas do not
challenge the manner in which discretionary authority is exer-
cised. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th
Cir. 2002) (as amended). Rather, they challenge the existence
of the authority. They contend that when affirming in a
streamlined order, the BIA does not have the authority to
change any aspect of the IJ’s decision, including the length of
a voluntary departure period. We have jurisdiction to decide
this question. See Zolotukhin v. Gonzales, 417 F.3d 1073,
1075 n.2 (9th Cir. 2005).
[3] The government argues, second, that we have no juris-
diction because the Padillas failed to exhaust their administra-
tive remedies before the BIA. We may entertain a petition for
review only if “the alien has exhausted all administrative rem-
edies available as of right.” 8 U.S.C. § 1252(d)(1). We have
interpreted the term “as of right” to require “an alien to
exhaust his or her claims by raising them on direct appeal to
the BIA.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004)
(emphasis in original). The Padillas assert the following three
claims, none of which was argued to the BIA.
[4] The Padillas’ first claim is a violation of constitutional
due process. They point out that the practical effect of the
removal provisions of IIRIRA is that some families are split
up when alien members of the family are removed and citizen
members are permitted to stay. They point out that the hard-
ship thus imposed on aliens who have been in the country for
less than ten years is categorically irrelevant to the removal
decision. They contend that this categorical refusal to con-
sider hardship imposed violates due process. In order to pro-
vide the relief requested by the Padillas, the BIA would have
to find either the ten-year requirement of § 1229b(b)(1)(A) or
the “stop-time” rule of § 1229b(d)(1) unconstitutional. The
BIA does not have jurisdiction to determine the constitution-
11268 PADILLA-PADILLA v. GONZALES
ality of the statutes it administers. Liu v. Waters, 55 F.3d 421,
425 (9th Cir. 1995). Because the BIA could not have
addressed the Padillas’ constitutional due process claim, the
Padillas were not required to exhaust the issue before the
BIA. Id. at 426; Garcia-Ramirez v. Gonzales, 423 F.3d 935,
938 (9th Cir. 2005).
[5] The Padillas’ second claim is that these same provisions
violate international law. In In re Medina, 19 I. & N. Dec.
734, 742, 746 (BIA 1988), the BIA held that it did not have
jurisdiction to consider international law claims premised on
treaty or customary international law. We have agreed with
the BIA’s conclusion that it lacks jurisdiction over claims
arising under international law. See Galo-Garcia v. INS, 86
F.3d 916, 918 (9th Cir. 1996) (holding that the BIA does not
have jurisdiction over customary international law claims);
see also Bradvica v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997)
(same); cf. Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.
2003). Since the BIA did not have jurisdiction to consider this
claim, the Padillas were not required to exhaust it.
[6] The Padillas’ third claim is that the BIA acted improp-
erly in reducing the period of voluntary departure from 60 to
30 days in a streamlined case. “We do not require an alien to
exhaust administrative remedies on legal issues based on
events that occurred after briefing to the BIA has been com-
pleted.” Alcaraz, 384 F.3d at 1158 (emphasis in original); see
Castillo-Villagra v. INS, 972 F.2d 1017, 1023-24 (9th Cir.
1992). The Padillas challenge the “further order” contained in
the BIA’s streamlined affirmance of the IJ’s decision. This
order was issued after briefing. We do not believe that the
Padillas should have been required to anticipate this ruling in
their briefing. At the time of its decision in the Padillas’ case,
the BIA was still following Matter of Chouliaris, 16 I. & N.
Dec. 168 (BIA 1977), under which a voluntary departure
period of more than 30 days was reduced to 30 days if the
period had run during the pendency of the appeal to the BIA.6
6
Matter of Chouliaris was decided under the voluntary departure
scheme that existed under pre-IIRIRA law. In In re A- M-, 23 I. & N. Dec.
PADILLA-PADILLA v. GONZALES 11269
But petitioners are not arguing before us that the BIA does not
have the authority to reduce the period to 30 days under Mat-
ter of Chouliaris. Rather, they are arguing that the BIA does
not have the authority to reduce the period in a streamlined
affirmance. We are unwilling to hold that the petitioners
should have anticipated in their briefing to the BIA that the
agency would violate its own streamlining regulation.
[7] The government argues, third, that the Padillas should
have filed a motion to reconsider7 in the BIA before filing a
petition for review in this court. Whether to grant a motion to
reconsider is within the discretion of the BIA. See 8 C.F.R.
§ 1003.2(b); INA § 240(c)(5), 8 U.S.C. § 1229a(c)(5);
Noriega-Lopez, 335 F.3d at 881. The failure to request such
discretionary relief does not deprive us of jurisdiction.
737, 743 (BIA 2005), the BIA changed its practice, pointing out that its
decision in Chouliaris had been based on the fact that an IJ acting under
pre-IIRIRA law was permitted to grant voluntary departure periods of any
length. Under IIRIRA, by contrast, an IJ can grant a voluntary departure
period of no longer than 60 days. The BIA held in In re A- M- that, in light
of IIRIRA, it would no longer automatically reduce voluntary departure
periods to 30 days. Instead, it would reinstate any period of voluntary
departure granted by the IJ “unless there are reasons in a particular case
for reducing the period of voluntary departure initially granted.” Id. at 744.
The Padillas’ case was decided after the effective date of IIRIRA (and thus
after the reason for the Chouliaris rule had disappeared), but before the
BIA’s decision in In re A- M-.
7
The government argues in its brief that the Padillas should have sought
a motion to reopen, but it likely meant to argue that they should have
sought a motion to reconsider. A motion to reopen is appropriate where
“new facts” are presented, and must be made within 90 days of the final
agency determination. 8 C.F.R. § 1003.2(c). A motion to reconsider is
appropriate for “errors of fact or law” relating to the prior Board’s deci-
sion, and must be made within 30 days after the mailing of the Board’s
decision. 8 C.F.R. § 1003.2(b). Because no “new facts” arose after the
Board’s decision, the only form of discretionary review for which the
Padillas would have been eligible is a motion to reconsider. See Noriega-
Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003); Iturribarria v.
INS, 321 F.3d 889, 895-96 (9th Cir. 2003).
11270 PADILLA-PADILLA v. GONZALES
Alcaraz, 384 F.3d at 1160; see Sun v. Ashcroft, 370 F.3d 932,
942 (9th Cir. 2004).
[8] Finally, we note that we may prudentially require peti-
tioners to exhaust administrative remedies in order to develop
a proper record, prevent deliberate bypass of the administra-
tive scheme, or allow the agency to correct its own mistake.
See Alcaraz, 384 F.3d at 1160; see also Noriega-Lopez, 335
F.3d at 881. Apart from allowing the BIA to correct its own
mistake, the other factors do not weigh in favor of requiring
the Padillas to exhaust. The record is complete, as the only
issues the Padillas raise are legal, and the Padillas do not
appear to be trying to bypass the administrative scheme. See
Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2005) (as
amended). Furthermore, a motion to reconsider before the
BIA would now be untimely. See 8 C.F.R. § 1003.2(b). Under
these circumstances, we will not require prudential exhaus-
tion. See Alcaraz, 384 F.3d at 1160.
B. Due Process
The Padillas contend that the practical effect of removal is
that some families are split up, with the removed members of
the family returning to their country and the non-removed
members staying in the United States. They contend that the
importance of family unity is such that the combined effect of
the ten-year requirement for eligibility for cancellation of
removal in § 1229b(b)(1)(A) and the stop-time rule of
§ 1229b(d)(1) (initiation of removal proceeding by service of
NTA stops accrual of time) violates constitutional substantive
due process.
[9] The Supreme Court has stated that “ ‘over no conceiv-
able subject is the legislative power of Congress more com-
plete than it is over’ the admission of aliens.” Fiallo v. Bell,
430 U.S. 787, 792 (1977) (citing Oceanic Navigation Co. v.
Stranahan, 214 U.S. 320, 339 (1909)). The Court went on to
note that “[o]ur cases ‘have long recognized the power to
PADILLA-PADILLA v. GONZALES 11271
expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control.’ ” Id. at 792 (citing Shaugh-
nessy v. Mezei, 345 U.S. 206, 210 (1953)). The Court held
that so long as Congress legislates with “a ‘facially legitimate
and bona fide reason’ the courts will neither look behind the
exercise of that discretion, nor test it by balancing its justifica-
tion . . . .” Id. at 794-95 (citing Kleindienst v. Mandel, 408
U.S. 753, 770 (1972)).
[10] Congress has provided for individualized hearings
before an IJ to determine hardship on family members result-
ing from removal for cases satisfying the eligibility criteria
for cancellation of removal. See 8 U.S.C. § 1229b(b). Con-
gress has also specifically provided that cancellation cannot
be granted unless the alien has been continuously present in
the United States for at least ten years. 8 U.S.C.
§ 1229b(b)(1)(A). We have broadly upheld time presence
requirements. See Urbano de Malalaun v. INS, 577 F.2d 589,
594 (9th Cir. 1978). The Padillas claim that because the
“right” to remain with “immediate family . . . ranks high
among the interests of the individual,” they have the right to
an individual determination of hardship. Landon v. Plasencia,
459 U.S. 21, 34 (1982); see also Moore v. City of East Cleve-
land, 431 U.S. 494, 499-500 (1977). The Padillas point out
that although the stop-time rule of § 1229b(d)(1) has stopped
the accrual of time for purposes of the ten-year requirement
as of the date of service of the NTA on April 21, 1998, they
have now been present in the United States for over seventeen
years. They contend that in this circumstance they are consti-
tutionally entitled to have their hardship considered as part of
the decision whether they should be removed.
So long as Congress has a “facially legitimate and bona
fide” reason for the lines it has drawn, the judiciary will not
interfere. See Fiallo, 430 U.S. at 794. The legislative history
of IIRIRA shows that one of its purposes was to expedite the
removal of aliens. See S. Rep. No. 104-249, at 7 (1996)
11272 PADILLA-PADILLA v. GONZALES
(“Aliens who violate U.S. immigration law should be
removed from this country as soon as possible.”). Under pre-
IIRIRA law, aliens continued to accrue time toward the satis-
faction of the then-applicable seven-year requirement even
after the initiation of deportation proceedings. The accrual of
time stopped only when they applied for suspension of depor-
tation. Ram v. INS, 243 F.3d 510, 513 (9th Cir. 2001). Aliens
thus had a substantial incentive to delay proceedings, and to
delay applying for suspension of deportation, in order to sat-
isfy the seven-year requirement. The stop-time provision of
§ 1229b(d)(1), adopted as part of IIRIRA, removes this incen-
tive by stopping the accrual of time upon the service of an
NTA.
[11] The combination of Congress’ authority to specify a
period of time before an alien becomes eligible for cancella-
tion of removal, and its rationale for adopting the stop-time
rule contained in § 1229b(d)(1), is enough to satisfy the due
process clause.
C. International Law
[12] The Padillas also contend that the combined practical
effect of the ten-year requirement and the stop-time rule on
family unity violates international law. The Padillas point to
various treaties, declarations, and customary international law
norms which generally recognize rights of families. But they
are unable to point to any binding obligation under interna-
tional law that has been violated. See, e.g., Sosa v. Alvarez-
Machain, 542 U.S. 692, 734-35 (2004) (stating that the Uni-
versal Declaration of Human Rights and the International
Covenant on Civil and Political Rights do not impose obliga-
tions on the United States because neither is self-executing);
see also Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1011-
13 (9th Cir. 2005) (holding that the hardship standard of 8
U.S.C. § 1229b(b)(1)(D) as interpreted by the BIA does not
violate customary international law). The government, on the
other hand, points to the statutory framework that clearly pro-
PADILLA-PADILLA v. GONZALES 11273
vides that in order to be eligible for cancellation from
removal, an immigrant must have been continuously present
in the United States for a period of ten years prior to the ser-
vice of an NTA. 8 U.S.C. § 1229b(b)(1)(A), (d)(1).
We therefore conclude that the government has not violated
any binding obligation under international law by failing to
consider the hardship imposed on the Padillas in making its
removal decision.
D. Reduction of Voluntary Departure Period
Finally, the Padillas contend that the BIA did not have the
authority, in a “streamlined” affirmance, to reduce the volun-
tary departure period granted by the IJ from 60 to 30 days.
The IJ granted the Padillas voluntary departure for a 60-day
period. The BIA then affirmed without opinion in a stream-
lined decision pursuant to 8 C.F.R. § 1003.1(e)(4). However,
the BIA did not affirm the entirety of the IJ’s decision. As
part of its affirmance, the BIA issued what it called a “further
order” reducing the period of voluntary departure from 60 to
30 days.
The full BIA order is as follows:
ORDER:
PER CURIAM. The Board affirms, without opin-
ion, the results of the decision below. The decision
below is, therefore, the final agency determination.
See 8 C.F.R. § 3.1(a)(7).
FURTHER ORDER: Pursuant to the Immigration
Judge’s order and conditioned upon compliance with
conditions set forth by the Immigration Judge and
the statute, the alien is permitted to voluntarily
depart from the United States, without expense to the
Government, within 30 days from the date of this
11274 PADILLA-PADILLA v. GONZALES
order or any extension beyond that time as may be
granted by the district director. See section 240B(b)
of the Immigration and Nationality Act; 8 C.F.R.
§ 240.26(c), (f). In the event the alien fails to so
depart, the alien shall be removed as provided in the
Immigration Judge’s order.
NOTICE: If the alien fails to depart the United
States within the time period specified, or any exten-
sions granted by the district director, the alien shall
be subject to civil penalty of not less than $1,000 and
not more than $5,000, and shall be ineligible for a
period of 10 years for any further relief under section
240B and sections 240A, 245, 248, and 249 of the
Immigration and Nationality Act. See section
240B(d) of the Act.
[13] We defer to an agency’s interpretation of its own regu-
lations. Salehpour, 761 F.2d at 1445. However, where that
interpretation is “plainly erroneous or inconsistent with the
regulation[ ]” we will not so defer. Id. The BIA must follow
its own regulations. Ramon-Sepulveda v. INS, 743 F.2d 1307,
1310 (9th Cir. 1984); see also Andriasian v. INS, 180 F.3d
1033, 1046 (9th Cir. 1999) (“[W]e note that we are not con-
testing the [BIA’s] interpretation of the governing statute . . . .
Rather, our decision is based on [the BIA’s] failure to apply
its own construction of the statute as embodied in the applica-
ble regulations.”). The BIA’s failure to follow its own regula-
tion constitutes an abuse of discretion. Andriasian, 180 F.3d
at 1046; Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002)
(“The BIA does not have the discretion to misapply the law,
and it abuses its discretion when it does.”).
[14] The streamlining regulation allows one member of the
BIA to affirm without opinion, specifying that it affirms the
“result” reached by the IJ, and prescribing the precise lan-
guage to be used. See 8 C.F.R. § 1003.1(e)(4). The regulation
could hardly be clearer. In pertinent part, it provides:
PADILLA-PADILLA v. GONZALES 11275
(4) Affirmance without opinion.
....
(ii) If the Board member determines that
the decision should be affirmed without
opinion, the Board shall issue an order that
reads as follows: "The Board affirms, with-
out opinion, the result of the decision
below. The decision below is, therefore, the
final agency determination. See 8 CFR
1003.1(e)(4).” An order affirming without
opinion, issued under authority of this pro-
vision, shall not include further explanation
or reasoning. Such an order approves the
result reached in the decision below; it does
not necessarily imply approval of all of the
reasoning of that decision, but does signify
the Board’s conclusion that any errors in
the decision of the immigration judge or the
Service were harmless or nonmaterial.
8 C.F.R. § 1003.1(e)(4)(ii) (emphasis added).
[15] The first paragraph of the BIA’s order in the Padillas’
case recites verbatim the prescribed language. However, the
second paragraph, labeled “further order,” goes beyond what
is authorized by the regulation. It both changes the “result”
reached by the IJ and uses language that goes beyond that
mandated in the regulation.
Another provision of the streamlining regulation reinforces
our reading of 8 C.F.R. § 1003.1(e)(4)(ii). That provision
specifies a limited number of additional orders that may be
entered as part of a streamlining decision. It provides:
(e) Case management system.
11276 PADILLA-PADILLA v. GONZALES
....
(2) Miscellaneous dispositions. A single
Board member may grant an unopposed
motion or a motion to withdraw an appeal
pending before the Board. In addition, a
single Board member may adjudicate a Ser-
vice motion to remand any appeal from the
decision of a Service officer where the Ser-
vice requests that the matter be remanded to
the Service for further consideration of the
appellant’s arguments or evidence raised on
appeal; a case where remand is required
because of a defective or missing transcript;
and other procedural or ministerial issues as
provided by the case management plan.
8 C.F.R. § 1003.1(e)(2). None of the “miscellaneous disposi-
tions” specified in the regulation include changing the length
of a voluntary departure period. Further, the “case manage-
ment plan” does not include any provision that would cover
the “further order” entered in this case. See id.; see also 8
C.F.R. § 1003.1(e)(5).
[16] We therefore hold that because the BIA issued a
streamlined order, it was required to affirm the entirety of the
IJ’s decision, including the length of the voluntary departure
period. The only remaining question concerns the effect of
our holding. The voluntary departure order and the running of
the 60-day period were stayed during the pendency of the
Padillas’ appeal to the BIA. Matter of Chouliaris, 16 I. & N.
Dec. 168 (BIA 1977) (“Timely filing of an appeal stays the
execution of the decision of the immigration judge during the
pendency of the appeal, and also tolls the running of the vol-
untary departure authorization.”). Until the BIA’s order was
issued, the IJ’s grant of voluntary departure was still in effect
and the period had not yet begun to run.
PADILLA-PADILLA v. GONZALES 11277
We are not sure, however, whether the Padillas can still
have the benefit of their voluntary departure order. In
Contreras-Aragon v. INS, 852 F.2d 1088, 1097 (9th Cir.
1988) (en banc), decided before the enactment of IIRIRA, we
held that, even in the absence of a stay, an alien’s period of
voluntary departure does not begin to run until after we issue
our mandate. After the enactment of IIRIRA, we revisited the
issue in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1168
(9th Cir. 2003), and held that the voluntary departure period
starts to run when the BIA issues its decision. Then in El
Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003), we
held that we have the equitable power to grant a stay of volun-
tary departure if the motion for such a stay is filed within the
voluntary departure period. Finally, in Desta v. Ashcroft, 365
F.3d 741, 749-50 (9th Cir. 2004), we held that a motion to
stay removal should be construed as including a motion to
stay voluntary departure.
[17] We decided Zazueta-Carrillo (overruling Contreras-
Aragon) well after the BIA’s decision in the Padillas’ case.
Relying on Contreras-Aragon, the Padillas have never moved
either to stay voluntary departure or to stay removal. In a case
in which the petitioners were in a similar position to the Padil-
las, we held that petitioners had not exhausted their adminis-
trative remedies when they had not presented to the BIA the
question whether, in light of Contreras-Aragon, they “should
be deemed to have overstayed their period of voluntary depar-
ture.” Garcia v. Ashcroft, 368 F.3d 1157, 1160 (9th Cir.
2004). In the circumstances of this case, we think the best
course is to remand to the BIA to allow it to determine that
question. We note that in two unpublished opinions the BIA
has assumed that Contreras-Aragon applies to petitioners, like
the Padillas, whose voluntary departure periods expired
before we decided Zazueta-Carrillo. See In re Mohammad,
2003 WL 23508433 (BIA Nov. 18, 2003) (unpublished); In re
Zodhi, 2003 WL 23270124 (BIA Oct. 28, 2003) (unpub-
lished).
11278 PADILLA-PADILLA v. GONZALES
Conclusion
We grant the petition for review in No. 02-73627 and
remand for further proceedings with respect to voluntary
departure. We deny the petition for review in No. 03-73964.