Mardones v. McElroy

197 F.3d 619, 1999 WL 1146922
CourtCourt of Appeals for the Second Circuit
DecidedOctober 29, 1999
DocketDocket No. 98-4324
StatusPublished
Cited by36 cases

This text of 197 F.3d 619 (Mardones v. McElroy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mardones v. McElroy, 197 F.3d 619, 1999 WL 1146922 (2d Cir. 1999).

Opinion

SACK, Circuit Judge:

The description of the facts underlying this case is a chronicle of petitioners’ highly unfortunate exercise of bad judgment or reliance on bad advice, the effects of which they now seek to overcome on appeal. But, as Judge Oakes, speaking for the Court, recently mused, “the immigration laws have a certain inexorability.” United States v. Krcic, 186 F.3d 178, 179 (2d Cir.1999). We cannot help petitioners avoid the plain requirements of those laws or the consequences of their own behavior.

BACKGROUND

Omar Vicente Mardones-Rojas, a native of Chile, and his wife, Silvia Amaro Mar-dones, a native of Guatemala, have resided in the United States since 1982. During the intervening seventeen years they have been continuously employed and have consistently paid their taxes. They own their own home and have two school-aged children who are United States citizens. Mrs. Mardones has extensive family ties in the United States, including her father and four siblings, all of whom are citizens. Petitioners legally entered the United States on non-immigrant visas in 1982. Upon the expiration of their visas, they remained in the United States without permission, thereby becoming “illegal aliens.” Eight years ago, in 1991, the Immigration and Naturalization Service (“INS”) instituted deportation proceedings against them.

At a hearing before an Immigration Judge (“IJ”) on March 11, 1992, petitioners conceded their deportability and stated their intention to seek suspension of deportation pursuant to Immigration and Nationality Act (“INA”) § 244(a), 8 U.S.C. § 1254(a) (repealed 1997), or, in the alternative, voluntary departure pursuant to INA § 244(e), 8 U.S.C. § 1254(e) (repealed 1997). Additionally, Mrs. Mardones indicated that she sought asylum pursuant to the terms of the class action settlement approved in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal. 1991) (approving settlement between various government agencies and a class of Salvadoran and Guatemalan refugees providing, inter alia, that Guatemalans present in the United States as of October 1, 1990 have the right to a de novo, unappealable asylum hearing before a specially trained asylum officer and to a stay of deportation proceedings in the interim); [622]*622see also Blanco v. INS, 68 F.3d 642, 644-45 (2d Cir.1995) (citing American Baptist Churches, 760 F.Supp. at 799-800).

On December 13, 1993, petitioners again appeared before an IJ, explaining that Mrs. Mardones’ citizen father recently had filed a petition for a “third preference” immigrant visa on Mrs. Mardones’ behalf, and that the petition had been approved by the INS. Mrs. Mardones was entitled to be included in the “third preference” category by reason of her status as the married daughter of a United States citizen. See INA § 203(a)(3), 8 U.S.C. § 1154(a)(1)(A)®; 8 C.F.R. § 204.2(d). Approval of the petition meant, in substance, that Mrs. Mardones could begin the process of obtaining lawful immigrant status as soon as an immigrant visa became available in that category under a quota system established by Congress. See INA § 204(a)(1)(A)®, 8 U.S.C. § 1153(a)(3). Availability of a visa in that category would depend on whether the “priority date” assigned to Mrs. Mardones had been reached on a waiting list maintained by the Department of State. See 8 C.F.R. § 245.1(g); 22 C.F.R. §§ 42.51-42.55. Mr. Mardones, as Mrs. Mardones’s spouse, would be entitled to the same immigrant status and the same order of consideration as his wife pursuant to INA § 203(d), 8 U.S.C. § 1153(d).

At the December 13, 1993 hearing, petitioners agreed to drop their requests for suspension of deportation and asylum in exchange for the government’s agreement to postpone voluntary departure until a full year later, December 13, 1994. It was anticipated that during this time period, petitioners would be able to secure lawful immigrant status, mooting the deportation proceeding against them.

The IJ agreed to this arrangement, warning petitioners that in view of the lengthy departure period, it would be unlikely for them to receive any further extension from the INS. The IJ emphasized also that should petitioners fail to depart by the deadline, the order of voluntary departure automatically would change to an order of deportation and, pursuant to INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1997), petitioners would be subject to a five-year ban on seeking certain forms of relief — including adjustment or change of status to permanent legal resident. The IJ issued these warnings in English and Spanish, orally and in writing, and petitioners indicated that they understood.

In late 1994, with their departure deadline a mere eleven days away, Mrs. Mardones’ priority number still had not become current. Petitioners therefore requested a six-month extension from the INS. The request emphasized petitioners’ belief that Mrs. Mardones’ priority number would become current within a month or two, and adverted to the enactment of a new law, INA § 245®, 8 U.S.C. § 1255®, permitting aliens who were for the first time in an unlawful immigration status to seek adjustment of their status without first departing from the United States as petitioners had been required to do.

The INS did not respond to the request, the December 13 deadline came and went, and petitioners remained in the United States. Orders of deportation were therefore automatically entered against them.

Six months later, in June 1995, with Mrs. Mardones’ priority date at last having become current, petitioners moved to reopen their deportation proceedings in order to permit petitioners to seek adjustment of status while remaining in the United States. Petitioners’ motion faced a significant obstacle, however, in the form of INA § 242B(e)(2)(A), which at the time provided:

[A]ny alien allowed to depart voluntarily under section 1254(e)(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 [623]*623described in paragraph (5)1 for a period of 5 years after the scheduled date of departure....

8 U.S.C. § 1252b(e)(2)(A) (footnote added).

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Bluebook (online)
197 F.3d 619, 1999 WL 1146922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mardones-v-mcelroy-ca2-1999.