Rodrigo Soria-Garibay v. Loretta E. Lynch , 609 F. App'x 940 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODRIGO SORIA-GARIBAY, No. 12-72310
Petitioner, Agency No. A095-770-156
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2015**
San Francisco, California
Before: SCHROEDER, IKUTA, and CHRISTEN, Circuit Judges.
Petitioner Rodrigo Soria-Garibay seeks review of the Board of Immigration
Appeals’s (BIA) decision upholding the immigration judge’s (IJ) denial of his
application for voluntary departure. We have jurisdiction under 8 U.S.C.
§ 1252(a).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Because Soria-Garibay requested voluntary departure more than 30 days
after the merits hearing was initially calendared, the IJ could not grant voluntary
departure “except pursuant to a stipulation” by the Department of Homeland
Security (DHS) under 8 C.F.R. § 1240.26(b)(2). See 8 C.F.R. § 1240.26(b)(1)(ii).
Soria-Garibay contends that when the DHS makes such a stipulation under
§ 1240.26(b)(2), the alien is entitled to a grant of voluntary departure and the IJ
lacks discretion to deny that form of relief. Therefore, he argues, the IJ and BIA
erred in denying him such relief here. The government offers a contrary
interpretation of § 1240.26(b)(2), contending that government counsel’s stipulation
to a grant of voluntary departure is necessary to allow the IJ to consider the alien’s
untimely motion for voluntary departure, but the IJ nevertheless retains discretion
to deny relief.
We need not reach this interpretative issue here. DHS made clear that the
purpose of its § 1240.26(b)(2) stipulation was only to allow the IJ to consider
Soria-Garibay’s otherwise untimely request for voluntary departure. DHS’s
attorney stated that “in order for the respondent to get [voluntary departure], the
Government would acquiesce and leave it to the Court’s discretion to the extent the
Court has discretion to make a decision in this case.” Because DHS’s stipulation
2
expressly left Soria-Garibay’s request for voluntary departure to the IJ’s discretion,
the IJ did not err in denying Soria-Garibay’s request.
PETITION DENIED.
3
FILED
Soria-Garibay v. Lynch, No. 12-72310 JUL 21 2015
IKUTA, Circuit Judge, concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority errs in declining to answer the question raised by the parties:
whether the government’s stipulation to a grant of voluntary departure under 8
C.F.R. § 1240.26(b)(2) deprives the IJ of discretion to deny that form of relief.
The majority’s ruling elides the fact that the parties offer two competing
interpretations of § 1240.26(b)(2). Under Soria-Garibay’s interpretation of this
regulation, when DHS makes a stipulation under § 1240.26(b)(2), as it did here, the
IJ has a mandatory duty to grant voluntary departure to the alien, regardless of any
qualifications DHS tries to include in its stipulation. The government offers a
different interpretation of § 1240.26(b)(2): it claims that DHS’s stipulation merely
allows the IJ to consider an otherwise untimely request for voluntary departure, but
does not deprive the IJ of the discretion to grant or deny such relief.
The majority holds that we need not reach this interpretative question
because “DHS made clear that the purpose of its § 1240.26(b)(2) stipulation was
only to allow the IJ to consider Soria-Garibay’s otherwise untimely request for
voluntary departure.” Maj. Op. at 2. But this ruling sub silentio adopts DHS’s
interpretation. If Soria-Garibay’s interpretation were correct, DHS’s remarks
about its intent in making the stipulation under § 1240.26(b)(2) would be legally
insignificant.
Rather than implicitly deciding the interpretative question before us, I would
make our holding express by deferring to the BIA’s reasonable interpretation of the
regulation. When the BIA interprets its own ambiguous regulation, this
interpretation “controls so long as it is reasonable, that is, so long as the
interpretation sensibly conforms to the purpose and wording of the regulations.”
Lezama-Garcia v. Holder, 666 F.3d 518, 525 (9th Cir. 2011) (internal quotation
marks omitted). Here, § 1240.26(b)(1)(ii) provides that if an alien makes an
untimely request for voluntary departure, the IJ is barred from granting such relief
unless DHS stipulates to such relief under § 1240.26(b)(2). But as explained
elsewhere in the regulations, when DHS stipulates to such relief under
§ 1240.26(b)(2), it “[j]oin[s] in a motion asking the immigration judge to permit
voluntary departure.” 8 C.F.R. § 240.25. Reading these regulations together, the
BIA could reasonably determine that when DHS made the stipulation required
under § 1240.26(b)(2), the IJ retained discretion to deny a grant of voluntary
departure, as it did here.
Because I would defer to the BIA’s interpretation of § 1240.26(b)(2), and
uphold the IJ’s exercise of discretion, I concur in the result only.
2