Arie SHAAR; Helina Shaar; Shay Moshe Shaar, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

141 F.3d 953, 98 Daily Journal DAR 3803, 98 Cal. Daily Op. Serv. 2764, 1998 U.S. App. LEXIS 7543, 1998 WL 172779

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 1998
• Docket: 96-70619
• Status: Published

Opinions

Opinion by Judge Fernandez; Dissent by Judge Browning.

FERNANDEZ, Circuit Judge:

After deportation proceedings against them had become final and they had been given the privilege of voluntary departure, Arie Shaar, his wife Helina Shaar, and their adult son Shay Shaar petitioned for reopening of their case so that they could apply for suspension of deportation pursuant to 8 U.S.C. § 1254(a)(1). The Immigration Judge denied reopening because the Shaars had not departed during the allotted voluntary departure time, and the Board of Immigration Appeals upheld that decision, even though the Shaars had petitioned to reopen just before the time to voluntarily depart had expired. The Shaars have petitioned for review of that decision. We deny the petition.

BACKGROUND

The Shaars were permitted to enter this country as nonimmigrant visitors for pleasure on July 17, 1987 and were to depart by January 16, 1988. As is too often the case, they simply did not leave when they were supposed to, and thus avoided all normal immigration channels and stole a march on those who chose to proceed in the orderly manner provided by law.

However, by March 12,1993, the Immigration and Naturalization Service had caught up with the Shaars and charged that they were deportable as overstays. See 8 U.S.C. § 1251(a)(1)(B). At a deportation hearing on August 19, 1993, they were found to be deportable, but the IJ exercised his discretion to permit them to voluntarily depart on or before April 18, 1994, and directed that they would be deported, if they did not depart by the agreed-upon date. See 8 U.S.C. § 1254(e). At that point, they were given oral and written warnings that they would not be eligible for certain forms of relief, including suspension of deportation, if they did not leave by the specified date. See 8 U.S.C. § 1252b(e)(2)(B). At a later time, the District Director of the INS extended the voluntary departure date to October 21,1994.

By July 17,1994, the Shaars had managed to remain here for seven years, and that raised the possibility that they could obtain suspension of deportation. See 8 U.S.C. § 1254(a)(1). They did not immediately apply for that relief. Instead, they waited until October 19, 1994—just two or three days before their scheduled departure date—to ask for it. They made no effort to seek an extension of the departure date, and by December 2,1994, when their request to reopen was heard, the departure date had come and gone, but they were still here. Thus, their request to reopen was denied pursuant to 8 U.S.C. § 1252b(e)(2). The BIA dismissed their appeal, and this petition followed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208,110 Stat. 3009 has repealed 8 U.S.C. § 1105a, but that removal of jurisdiction does not apply to this petition. See IIRIRA §§ 306(c), 309(a) and (c)(1).

We review denials of motions to reopen for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992). However, more than that is involved here because we are asked to construe provisions of the Immigration and Nationality Act. That raises issues of law, which we review de novo. See Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir. 1997).

Having said that, however, we have not said quite enough because there can be no doubt that “Congress has entrusted the BIA with the administration of the [INA].” Mendoza v. INS, 16 F.3d 335, 337 (9th Cir. 1994). Of course, if “Congress has directly spoken to the precise question at issue” there is little left to do. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). In Chevron, the Supreme Court went on to say:

If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Id. at 842-43, 104 S.Ct. at 2781-82. In other words, we must not substitute our interpretation for a “reasonable interpretation” made by the agency and must accept that interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. at 2782.

These principles apply to our review of the BIA’s construction of the INA As we have said, “[w]e show considerable deference ... to the BIA’s interpretation” of the INA, Mendoza 16 F.3d at 337, and “we defer to the [BIA’s] interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute,’ ” Pitcherskaia, 118 F.3d at 646 (citations omitted). With these glasses to peer through, we turn to look at and analyze the statute at hand.

DISCUSSION

A The Statute. When the Shaars sought to reopen, they were faced with the provisions of 8 U.S.C. § 1252b(e)(2)(A), which reads:

Subject to subparagraph (B), any alien allowed to depart voluntarily under section 1254(e)(1) of this title or who has agreed to depart voluntarily at his own expense under section 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 reentry, respectively.

There is no question that the Shaars were given the notice required by § 1252b(e)(2)(B), so the “subject to” phrase, which opens the quoted section, need not be considered at this time. Moreover, there is no doubt that the suspension of deportation relief sought by the Shaars is one of the types of relief which is blocked by the section. See 8 U.S.C. § 1252b(e)(5).

The BIA ruled that § 1252b(e)(2)(A) precluded relief because by its plain words a person could not obtain that relief, if he had remained here “after the scheduled date of departure.” We find no fault with that reading of the statute, for that is what the statute plainly says. In fact, the language could hardly be more clear. Only wrenching the words out of their normal channels could result in adding exceptions to them.

We must assume that Congress used the statutory words in the normal sense and with their ordinary meanings. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). In so doing, Congress directly said that an alien simply cannot gamer the sought after relief, if • the alien remained after the scheduled departure date, unless, of course, there were truly exceptional circumstances. We will visit the exceptional circumstance issue later, but for now it is quite clear that the Shaars did not depart on the scheduled date, even though nothing stopped them from doing so.

We have started with the language of the statute itself, as we must. See INS v. Phinpathya, 464 U.S. 183,189, 104 S.Ct. .584, 589, 78 L.Ed.2d 401 (1984). Having found that language clear and unambiguous, we need go no further and, the Shaars’ arguments notwithstanding, we need not even consider the legislative history. See Villegas-Valenzuela v. INS, 103 F.3d 805, 810 (9th Cir.1996); Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996); Perroton v. Gray (In re Perroton), 958 F.2d 889, 893 (9th Cir.1992). Here we do not face “rare and exceptional circumstances,” which would require us to go beyond the statute. Perroton, 958 F.2d at 893. That is, there is no reason to look beyond the statute in a case, like this one, where “the result is not absurd.” Tang, 77 F.3d at 1197. We should not attempt to constmct some purpose or congressional intent from other materials. But, even looking further, we find nothing in the contemporaneous legislative history which would induce us “to question the strong presumption that Congress expresses its intent through the plain language it chooses.” Cardozar-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. at 1213 n. 12.

Rather, it is clear that Congress desired to control the untoward delays which had developed in the immigration system, and to expedite proceedings to the extent reasonably possible. See Stone v. INS, 514 U.S. 386, , 115 S.Ct. 1537, 1546, 131 L.Ed.2d 465 (1995). Every delay inures to the benefit of the alien, who is here improperly and who understandably desires to stay. Nor are aliens beyond attempting to manipulate the system for the purpose of injecting as much delay as possible into proceedings. See id. Here, for example, the Shaars did not apply for suspension of deportation as soon as that was possible. They waited, instead, until just a couple of days before they were to depart. Moreover, they did not ask the District Director for another extension of their departure date. They, instead, avoided that orderly process and simply stayed on beyond the scheduled date, without a by-your-leave from the District Director or any other representative of the United States. We see no reason to treat the statute as a Delphiac pronouncement and ourselves as it’s annointed hierophants. It is not, and we are not. Congress plainly expressed itself, and plainly provided a single escape from the strictures of the provision—exceptional circumstances. Were there any here? We think not.

Congress itself has narrowly defined what exceptional circumstances are, which underscores its serious concern about people who do not leave on the appointed date. It has provided that “[t]he term ‘exceptional circumstances’ refers to exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.”¹ 8 U.S.C. § 1252b(f)(2). In no sense can the Shaars claim that the mere filing of a petition to reopen is as compelling as the circumstances confronting a person who is scheduled to leave but stays behind because he is seriously ill or because an immediate relative has just died. Nothing that dire kept the Shaars here. They had already found ways to overstay their visas, and hoped that they could reopen their proceedings and stay longer still. Departing was not beyond their control. No doubt, it was an unpleasant prospect to them, but it surely was not “exceptional.” Indeed, the circumstance here was rather common. It was a simple case of obtaining an extension of the departure date, and thereby opening up the possibility that suspension of deportation could also be obtained. Moreover, their failure to depart was not beyond their control. In fact, they did not even apply for an extension of time, an act that clearly was within their control.

Nor are we impressed with the Shaars’ claim that the hearing date on their request to reopen was beyond their control and was, therefore, exceptional. It was actually neither. It was hardly exceptional that the IJ could not reach their petition to reopen within the two or three days between October 19 and October 21, 1994, which they saw fit to give him. In fact, interestingly enough, he did reach their case by December 2,1994, less than two months after they filed. Had they filed when they first became eligible, July 17, 1994, perhaps their petition would have been reached before the period for departure ran out. Perhaps the Shaars did not want to take a chance that their petition would be denied and, as it is, they have now managed to remain here for three more years, while these proceedings go forward. In short, the departure situation was not beyond their control and, even if it were, it was not even remotely as compelling as a serious illness of the alien himself or the death of an immediate relative.²

Therefore, reading § 1252b(e)(2)(A) to preclude the construction given to it by the BIA would require us to perform an act of sortilege beyond our powers. The BIA did not err.

B. The Shaars’ other arguments. The Shaars make other arguments in an effort to save their situation. None will serve the purpose.

The Shaars suggest that, as a matter of law, the statutory bar date was tolled when they filed their petition to reopen. But the authority they cite has nothing to do with petitions to reopen. It has to do with direct review. See Matter of Chouliaris, Interim Decision 2572, 16 I. & N. Dee. 168 (BIA 1977); Matter of Villegas Aguirre, Interim Decision 1940, 13 I. & N. Dec. 139 (BIA 1969). There is no similarity between the two.

Direct review has not been discouraged or disfavored, while reopening has been. See Doherty, 502 U.S. at 323,112 S.Ct. at 724-25; INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988). Moreover, the regulations do not provide for a stay or tolling upon the filing of a petition to reopen. See Matter ofTuakoi, Interim Decision 3004, 19 I. & N. Dec. 341, 349 (BIA 1985); 8 C.F.R. § 3.8(a) (1995) (the filing of a motion to reopen does not stay proceedings); cf. 8 C.F.R. § 3.6 (1995) (stay of an appeal is provided for, except from denial of a motion to reopen or reconsider). Beyond that, if an extension of the voluntary departure date is desired, the District Director has the authority to grant it. See 8 C.F.R. § 244.2 (1995); see also Williams v. INS, 795 F.2d 738, 744-45 (9th Cir.1986). Again, the Shaars chose not to utilize that route. There was no automatic tolling here.

The Shaars then suggest that their due process or equal protection rights have been violated. In so doing, they essentially argue that their fundamental right to remain in the United States has somehow been improperly, or at least unfairly, terminated. But their major and minor premises are all faulty.

First, the Shaars have no fundamental right to be in the United States. See Harisiades v. Shaughnessy, 342 U.S. 580, 586-87, 72 S.Ct. 512, 517, 96 L.Ed. 586 (1952). Moreover, Congress has exceedingly broad power over the admission and expulsion of aliens. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977). In fact, “ ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ ” the subject of the admission and expulsion of aliens. Id. at 792, 97 S.Ct. at 1478. Of course, the Shaars were only admitted for a temporary pleasure visit in the first place.

Second, the Shaars were not subjected to some improper, unreasonable, or irrational classification. Cf. Perez-Oropeza v. INS, 56 F.3d 43, 45 (9th Cir.1995). They were found to be here improperly and were given the privilege of departing within a particular period, rather than being seized and deported forthwith. The fact that they have not been able to take advantage of some additional benefit, because they did not leave on time or get that time extended, does not show any irrationality. Moreover, it can hardly be gainsaid that they were given all the process they were due before they were told to depart our shores. See Sharma v. INS, 89 F.3d 545, 548 (9th Cir.1996).

That some people under somewhat similar circumstances might manage to remain long enough to accrue some benefit or other does not show that the Shaars’ constitutional rights have been violated. The most it shows is that at the fringes every statute can seem unfair because one person did or did not take just one little last step that brought himself within (or allowed him to avoid) the strictures of a statute. When we focus on marginal eases, a statute may often seem to be mischievous or otherwise objectionable. If so, the remedy for that inevitable possibility lies with the legislature rather than with the courts. See Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50-51, 75 L.Ed. 156 (1930); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995).

Perhaps, as the Shaars suggest, the INS and the BIA could manipulate the system so as to treat aliens unfairly for arbitrary or downright improper reasons. Perhaps those entities could do that by injecting unexpected delays into the setting of a hearing of a very timely petition to reopen, while denying extensions of time to depart. We, however, have no reason to think that the agencies will do so, nor is there the slightest hint that they did so here. If anyone attempted to manipulate the system, it was the Shaars, who waited until the eve of their scheduled departure to ask for the relief they now seek. We can detect no violation of the Constitution.

CONCLUSION

The Shaars were given the privilege of entering the United States for pleasure, and they were to leave by January 16, 1988. They did not leave. When finally discovered, they were given the further privilege of voluntarily departing by April 30,1994, and that privilege was extended to October 21, 1994. Again, they did not leave. Instead, on October 19,1994, they filed a motion to reopen to petition for suspension of deportation pursuant to 8 U.S.C. § 1254(a)(1). Not surprisingly, their motion was not acted upon before October 21, 1994. Because they did not leave on the “scheduled date of departure” and because no “exceptional circumstances” precluded their going, they are not entitled to suspension of deportation. See 8 U.S.C. §§ 1252b(e)(2)(A),(f)(2). Now, almost ten years after they were supposed to depart, they must leave, for even the most persistent peregrines must finally adhere to the immigration precepts of the land which they were privileged to visit.

Petition DENIED.

1 . Congress has not had second thoughts about narrow definitions of exceptional circumstances. In fact, in IIRIRA, it adopted a definition in another section which either explicitly narrowed the definition still further or made it clear that "immediate relative” is an extremely small subset of people—spouses, children and parents. See 8 U.S.C. § 1229a(e)(l).

2 . To the extent that the Shaars argue that this is inconsistent with the purposes of the voluntary departure scheme, we disagree. Voluntary departure is a matter of privilege, rather than of right. See Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir.1986). Its purpose is to allow an alien to leave without stigma or the adverse consequences of deportation. See Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir.1988) (en banc). It is not to allow the alien to accrue new rights to remain, even if that sometimes happens to be the result.