Simon Kiloobe Lubale v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3540
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Simon Kiloobe Lubale, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General, *
*
Respondent. *
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Submitted: March 15, 2007
Filed: May 2, 2007
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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
In October 2003, an Immigration Judge (IJ) denied Simon Kiloobe Lubale’s
application for asylum and related relief, but permitted him to depart voluntarily. The
Board of Immigration Appeals (BIA) dismissed Lubale’s appeal, and granted a 60 day
period of voluntary departure until July 15, 2005. On August 12, 2005, Lubale moved
to reopen his proceedings. The BIA denied the motion to reopen, finding Lubale
ineligible for adjustment of status. Lubale petitions for review after the BIA denied
his motion to reconsider.1 After careful review, we deny the petition.
1
In addition Lubale has moved to supplement the record on appeal with several
items of evidence that were not presented below. These materials were not part of the
administrative record, and the motion is denied.
Lubale, a Ugandan citizen, entered the United States as a nonimmigrant visitor
and overstayed the authorized period of admission. Removal proceedings were
initiated in April 2002. Lubale conceded removability and requested voluntary
departure; he also filed an application seeking asylum, withholding of removal, and
protection under the Convention Against Torture. The IJ found Lubale removable,
denied his application, and granted voluntary departure. Lubale appealed to the BIA
which affirmed the IJ’s decision and dismissed the appeal on May 16, 2005. The BIA
granted Lubale a 60 day voluntary departure period. Lubale’s period of voluntary
departure expired on July 15, 2005.
On August 12, 2005 Lubale filed a motion to reopen, seeking adjustment of
status to permanent residence based on his alleged bona fide marriage to a United
States citizen in May 2004. The Department of Homeland Security (DHS) opposed
the motion and the BIA denied it, citing Matter of Velarde-Pacheco, 23 I. & N. Dec.
253, 256 (BIA 2002) (motion to reopen may be granted if, inter alia, motion is not
barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), and Immigration and
Naturalization Service (now DHS) does not oppose motion), and Matter of Shaar, 21
I. & N. Dec. at 543-44 (alien who overstays his voluntary departure period is
statutorily ineligible for applying for adjustment of status absent showing of
“exceptional circumstances”).2 The BIA also noted that because Lubale had not filed
his motion to reopen prior to the expiration of the voluntary departure period, his case
did not fall within the scope of Sidikhouya v. Gonzalez, 407 F.3d 950, 952 (8th Cir.
2005) (per curiam) (motion to reopen filed prior to expiration of voluntary departure
period tolls time period until BIA has ruled on motion).
Lubale filed a motion to reconsider, alleging that he was unable to depart from
the United States within the voluntary departure period due to the exceptional
circumstances of his wife delivering a stillborn son in December 2004. The BIA
2
The decision in Matter of Shaar was based on 8 U.S.C. § 1252b(e)(2)(A) and
preceded the 1996 enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which repealed § 1252b(e)(2)(A).
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denied Lubale’s motion on the ground that his wife’s stillbirth was not an exceptional
circumstance because it occurred during the pendency of his appeal before the BIA,
an appeal which ultimately granted voluntary departure. The BIA also noted that
Lubale did not seek an extension of the voluntary departure period and that during his
appeal he never informed the BIA of his marriage to a United States citizen. Lubale
mistakenly directed his petition to the United States Court of Appeals for the Sixth
Circuit, and the matter was later transferred to this court.
Lubale now petitions for review of the BIA’s denial of his motion to reconsider,
arguing that the fact his wife had a stillborn son constituted exceptional circumstances
for failing to depart voluntarily. He also maintains that his counsel’s failure to file the
motion to reopen prior to the expiration of the voluntary departure period amounts to
ineffective assistance in violation of his Fifth Amendment due process rights.
We review for abuse of discretion the BIA’s denial of relief on a motion to
reconsider. Aneyoue v. Gonzales, 478 F.3d 905, 907 (8th Cir. 2007). This standard
of review, which is considerably more deferential than the ordinary standard for
reviewing agency decisions, is necessary to deter aliens from “improperly
prolong[ing] the removal process by filing motions to reconsider, instead of
petitioning for immediate judicial review of an initial adverse decision.” Esenwah v.
Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004) (citing Boudaguian v. Ashcroft, 376 F.3d
825, 828 (8th Cir. 2004)). To succeed under this higher standard of review, Lubale
must demonstrate that the BIA’s denial lacks a rational explanation, departs from
established policies, invidiously discriminates against a particular race or group,
ignores relevant factors, or distorts important aspects of the claim. Id.Lubale contends that exceptional circumstances prevented him from departing
within the time allowed by the BIA’s grant of voluntary departure. Prior to the
enactment of the IIRIRA, “exceptional circumstances” were a statutory justification
for failing to depart during the specified time period. See 8 U.S.C. § 1252b(e)(2)(A)
(repealed 1996) (“any alien allowed to depart voluntarily . . . who remains in the
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United States after the scheduled date of departure, other than because of exceptional
circumstances, shall not be eligible [to receive an adjustment of status for 5 years]”)
(emphasis added). In 1996, the passage of the IIRIRA eliminated this justification.
See 8 U.S.C. § 1229c(d)(1) (West 2005 & 2006 Supp.) (“if an alien is permitted to
depart voluntarily . . . and voluntarily fails to depart within the time period specified,
the alien shall be ineligible [to receive an adjustment of status for 10 years]”)
(emphasis added).
Here, because Lubale’s removal proceedings commenced after the effective
date of the IIRIRA, the BIA lacked authority to apply an “exceptional circumstances”
justification for his failure to depart within time period afforded for voluntary
departure. See Matter of Zmijewska, 24 I. & N. Dec. 87, 92-93 (BIA 2007) (Congress
has not given BIA authority to apply equitable exceptions to civil penalties for failing
to depart within time for voluntary departure). Further, Lubale does not allege that he
was unaware of the BIA’s grant of voluntary departure or that he was physically
unable to depart within the specified time period. See id. at 94 (“voluntariness”
exception in § 1229c(d)(1) is much narrower than repealed “exceptional
circumstances” exception and would apply only to aliens who, through no fault of
their own, remain unaware of voluntary departure order or are physically unable to
depart; involuntary failure to depart does not include exceptional hardships to alien
or close family members). The BIA therefore did not abuse its discretion in denying
the motion to reconsider.
Finally, Lubale's failure to assert his ineffective assistance claim before the BIA
precludes judicial review. See Etchu-Njang v. Gonzales, 403 F.3d 577, 584 (8th Cir.
2005) (before alien may obtain judicial review on claim of ineffective assistance it
must be presented to BIA on direct administrative appeal or in motion to reopen);
Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 n.1 (8th Cir. 2003) (“[o]ur Circuit has
yet to recognize the validity of a due-process claim in a deportation proceeding based
on the ineffective assistance of counsel”); cf. Jamieson v. Gonzales, 424 F.3d 765, 768
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(8th Cir. 2005) (where alien seeks discretionary relief of adjustment of status no
constitutionally-protected liberty interest is at stake).
Accordingly, we deny Lubale’s petition for judicial review.
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