Gerardo Rafael Velezmoro v. John Ashcroft, Attorney General

362 F.3d 1231, 2004 U.S. App. LEXIS 6072, 2004 WL 720349

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2004
• Docket: 02-73244
• Status: Published

Opinions

BETTY B. FLETCHER, Circuit Judge:

Gerardo Rafael Velezmoro (‘Velezmo-ro”), a native and citizen of Peru, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen deportation proceedings. Velezmoro sought to apply for adjustment of status based on the fact that he had recently married a United States citizen. The BIA denied the motion because it concluded that Velezmoro was statutorily ineligible for adjustment of status as a result of his failure to depart the United States pursuant to an earlier grant of voluntary departure. We have jurisdiction pursuant to former 8 U.S.C. § 1105a, and the transitional rules set forth in section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as amended by the Act of October 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. We grant the petition and remand for further proceedings.

I. Background, and Procedural History

In 1994, the former Immigration and Naturalization Service (“INS”)¹ initiated deportation proceedings against Velezmo-ro, charging that he had entered the country without inspection. Velezmoro conceded the charge but applied for asylum and withholding of deportation. At Velez-moro’s merits hearing, an immigration judge denied those applications but granted Velezmoro voluntary departure in lieu of deportation. Velezmoro appealed the immigration judge’s decision to the BIA. The BIA affirmed the immigration judge’s order, but extended the period during which Velezmoro could voluntarily depart to May 23, 1998. Velezmoro did not depart by that date. Instead, he moved to reopen his deportation proceedings, arguing that his recent marriage to a United States citizen rendered him eligible for adjustment of status. The BIA initially rejected Velezmoro’s filings because Velez-moro’s attorney had failed to file the appropriate paperwork. Velezmoro retained new counsel, who filed another motion to reopen with the proper documentation. The BIA again rejected the motion to reopen, this time finding that Velezmoro was ineligible for the relief requested because of his failure to depart as required by the earlier grant of voluntary departure. Ve-lezmoro timely filed this petition for review.

II. Discussion

Former section 242B of the Immigration and Nationality Act (“INA”) provides that an individual is ineligible for adjustment of status if he or she was granted voluntary departure but nonetheless remained in the United States. The statutory period of ineligibility is five years “after the scheduled date of departure or the date of unlawful reentry, respectively.” 8 U.S.C. § 1252b(e)(2)(A) (Supp.1995). At the time that the BIA rendered its decision denying Velezmoro’s motion to reopen, in September 2002, former section 242B of the INA rendered Velezmoro ineligible for adjustment of status because less than five years had elapsed since his scheduled date of departure. At the time of this decision, however, the five-year statutory bar has expired.² It therefore appears that Velez-moro is no longer barred from applying for adjustment of status.

The procedural posture of the case presents us with a difficult situation. Were we to deny the petition, as the dissent suggests, Velezmoro would have no realistic opportunity to apply for the adjustment of status for which he now appears to be eligible. Velezmoro cannot file another motion to reopen with the BIA because he could not meet the exceptions to the time- and number-bars in 8 C.F.R. § 1008.2. That section provides that an alien can file only one motion to reopen proceedings with the BIA, and that the motion must be filed within 90 days of the BIA decision in the case. 8 C.F.R. § 1003.2(c) (2003). The regulation does provide for certain exceptions, but none of them are applicable here. Moreover, the government indicated at oral argument that it would not join in a motion to reopen proceedings, which would have provided Velezmoro the only possibility of overcoming the time- and number-bars.

We recognize that Velezmoro did not comply with the terms of the grant of voluntary departure, but the question before us is not whether he is to be penalized, but how. Congress has specified that the penalty for Velezmoro’s failure to comply is that he could not apply for certain immigration benefits for a period of five years. See 8 U.S.C. § 1252b(e)(2)(A) (Supp.1995). Velezmoro has “served” that time, in that he has been unable to obtain the status that his marriage to a U.S. citizen would otherwise entitle him to. Were we to deny Velezmoro’s petition, we would effectively turn Congress’ five-year ban into a much longer period of ineligibility, since Velezmoro would not be eligible to reenter the United States for another ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii).

Under these circumstances, we conclude that the proper disposition is to remand the case to the BIA for it to consider in the first instance whether Velezmoro continues to be barred from applying for adjustment of status at this time. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). The dissent argues that Ventura is inapplicable in this case because the issue of eligibility was not raised at the BIA. Of course, the continued applicability of the bar in section 242B of the INA could not have been raised during the earlier BIA proceedings for the simple reason that it was not an issue until May 24, 2003, several months after the BIA’s decision. Moreover, the government’s position in its supplemental brief is that, if Velezmoro’s claims are to be considered, they should be first presented to the BIA pursuant to Ventura.

III. Conclusion

We grant Velezmoro’s petition for review and remand the case to the BIA for it to consider in the first instance whether former section 242B of the INA continues to bar Velezmoro from applying for adjustment of status.

PETITION GRANTED; REMANDED.

1 . On March 1, 2003, the INS ceased to exist and its functions were transferred to the newly created Department of Homeland Security. See Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n. * (9th Cir.2003).

2 . Because Velezmoro’s scheduled date of departure was May 23, 1998, he was barred from applying for adjustment of status through May 23, 2003. We note that nothing in the record suggests that Velezmoro has left the United States and reentered illegally, such that the five-year period would have begun to run at a later date.

We note that, contrary to the dissent’s assertion, our decision in Shaar v. INS, 141 F.3d 953 (9th Cir.1998), supports the proposition that the ineligibility period set out by former section 242B begins to run as of the scheduled date for voluntary departure. In Shaar, we held that the filing of a motion to reopen did not toll the period of voluntary departure during which an alien could depart. Id. at 958. Since the scheduled date of departure was not tolled for Velezmoro when he filed his motions to reopen, it follows that the period of ineligibility pursuant to former section 242B continued to run during his attempts to reopen the case with the BIA. In any event, we conclude that this is a question that should be resolved in the first instance by the BIA.