Macotaj v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0277p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
KANTO MACOTAJ,
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-
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No. 03-3684
v.
,
>
ALBERTO GONZALES, Attorney General, -
Respondent. -
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On Petition for Review of an Order
from the Board of Immigration Appeals.
No. A75 309 094.
Argued: November 30, 2004
Decided and Filed: June 24, 2005
Before: DAUGHTREY and GILMAN, Circuit Judges; RICE, District Judge.*
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COUNSEL
ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, Troy, Michigan, for
Petitioner. David E. Dauenheimer, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Marshal E. Hyman, MARSHAL E. HYMAN &
ASSOCIATES, Troy, Michigan, for Petitioner. David E. Dauenheimer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal from the Board of
Immigration Appeals (BIA), we are asked to overturn the immigration judge’s determination that
Kanto Macotaj – an Albanian national who entered the United States in 1995 without inspection and
later conceded removability – is not entitled to asylum, withholding of removal, or protection under
the United Nations Convention Against Torture. As with many similar cases that we have reviewed
since the overthrow of the Communist regime in Albania, we find that there is substantial evidence
to support the ruling of the immigration judge that, despite whatever political repression Macotaj
and his family may have suffered in the past, conditions in Albania have changed to such an extent
that Macotaj no longer has reason to fear persecution upon return to his homeland. The more
*
The Honorable Walter Herbert Rice, United States District Judge for the Southern District of Ohio, sitting by
designation.
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significant question raised in this case, however, is whether he may still be permitted to leave the
country voluntarily, as originally ordered by the immigration judge and renewed by the BIA, despite
the fact that his motion to stay voluntary departure was not filed within the original 30-day period
designated for such departure. For the reasons set out below, we follow the lead of several of our
sister circuits in holding that Macotaj’s motion to stay removability, which was filed within the
applicable 30-day period, encompassed an implicit motion to stay voluntary departure.
Macotaj entered the United States illegally in October 1995. He was issued a notice to
appear before the INS to defend against a charge of removability in October 1997 and appeared
before an immigration judge in February 1998, admitting removability. His subsequent petition for
asylum was denied following a hearing on the merits in June 1999, but the immigration judge
granted a 30-day period for voluntary departure. Within that time, Macotaj filed a notice of appeal
with the BIA. The BIA affirmed the decision of the immigration judge without opinion on April 18,
2003, and renewed the 30-day period for voluntary departure. Twenty-one days later, on May 9,
2003, the petitioner filed a petition for review of the BIA order and a motion to stay removal in this
court. The government did not oppose the motion to stay, and it was granted on June 20, 2003. The
motion to stay the period of voluntary departure was not filed until December 19, 2003, however,
which date was well beyond the 30-day period granted by the BIA. The petitioner requested that
the motion be granted nunc pro tunc to May 9, 2003, the date that the motion to stay removal was
filed.
The government is not opposed to Macotaj’s motion to stay removability pending review of
the BIA’s order. It does, however, oppose the granting of the motion to stay voluntary departure,
arguing that the decision to grant an extension of the period for voluntary departure is within the sole
discretion of the Department of Homeland Security, and distinguishing the facts in this case from
those in our recent decision in Nwakanma v. Ashcroft, 352 F.3d 325 (6th Cir. 2003).
In Nwakanma, the petitioners had moved for a stay of voluntary departure while the period
for voluntary departure was still in effect. The question in that case was whether we had the
authority to grant such a motion, given the statutory proscriptions against judicial review of the grant
or denial of voluntary departure in the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), 8 U.S.C. §§ 1229c(f) and 1252(a)(2)(B)(i). We held in Nwakanma that “in
granting a stay of voluntary departure, we do not pass on the substance of the decision to grant
voluntary departure; we only stay the immediate effectiveness of the relief already granted by
respondent in his discretion, to allow the alien petitioner to receive appellate review.” Id. at 327
(citing Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175 (9th Cir. 2003) (Berzon, J., concurring)).
Accord El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (“We conclude that the District
Director’s authority to extend voluntary departure does not limit this court’s equitable authority to
grant a stay of the voluntary departure time period.”); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653
(7th Cir. 2004) (agreeing with the Ninth Circuit that “courts retain the equitable power to stay
voluntary departure orders, notwithstanding the restrictions that exist under IIRIRA, when such an
action is taken to preserve meaningful judicial review”). But see Ngarurih v. Ashcroft, 371 F.3d
182, 194 (4th Cir. 2004) (stay of voluntary departure prohibited by IIRIRA).
By contrast, the question in the post-Nwakanma case of Mullai v. Ashcroft, 385 F.3d 635,
640 (6th Cir. 2004), was “whether a court may reinstate voluntary departure where the voluntary-
departure period granted by the BIA expires before petitioner seeks either a stay of removal or a
stay of voluntary departure.” (Emphasis added.) Hence, the question not directly addressed in
Mullai, because it was not raised by the facts in that case, was whether the filing of a timely motion
to stay removal would be sufficient to permit the exercise of our equitable powers to stay the
voluntary-departure period, despite the lack of a timely-filed motion to stay voluntary departure.
Nevertheless, implicit in the language of Mullai is a recognition that a motion to stay removal, filed
No. 03-3684 Macotaj v. Gonzales Page 3
within the voluntary-departure period set by the BIA, might well be sufficient to preserve our
authority to stay the running of that period pending our review of the BIA order.
Indeed, the Ninth Circuit has so held, in an opinion that was announced shortly before our
opinion in Mullai was released. In Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004), the court
“construe[d] Desta’s motion to stay removal as including a request to stay voluntary departure,”
noting that
. . . the same substantive standards govern motions to stay removal and motions to
stay voluntary departure. Thus, if the standard to stay removal is satisfied, the
standard to stay voluntary departure is necessarily satisfied. Moreover, El Himri
established that the same procedures used for motions to stay removal are also used
for motions stay voluntary departure. A motion to stay voluntary departure is thus
in many ways “ancillary” to a motion to stay removal, and it is reasonable to
construe a motion to stay removal to include a request to stay voluntary departure.
Id. at 748 (citations omitted). Accord Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004) (“[I]f . . .
the alien files a motion to stay removal before the period of voluntary departure expires, we will
deem the grant of that motion to include a stay of the voluntary departure period.”).
Because we are granting the petitioner’s motion to stay the running of the voluntary-
departure period, and not reinstating or extending it, the remainder of the 30 days granted by the BIA
will begin to run from the date that the mandate issues from this court, leaving the petitioner nine
days from that date in which to leave the United States voluntarily, without incurring the penalties
that would otherwise attach to his forced removal.
The motion to stay voluntary departure is GRANTED. The petition for review is DENIED.