Reynoso-Lopez v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 25, 2004
• Docket: 02-3278
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

5-25-2004

Reynoso-Lopez v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 02-3278

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Recommended Citation "Reynoso-Lopez v. Atty Gen USA" (2004). 2004 Decisions. Paper 646. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/646

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL John D. Williams, Esq. Michael P. Lindemann, Esq. UNITED STATES COURT OF Jocelyn L. Wright, Esq. APPEALS FOR THE THIRD CIRCUIT Erica A. Franklin, Esq. ___________ United States Department of Justice Office of Immigration Litigation No. 02-3278 P.O. Box 878 ___________ Ben Franklin Station Washington, DC 20044

DEMETRIO REYNOSO-LOPEZ, Counsel for Respondent

Petitioner ___________ v. JOHN ASHCROFT, Attorney General of OPINION OF THE COURT the United States of America, ___________

Respondent FUENTES, Circuit Judge. ____________ The principal issue presented by On Petition for Review of an Order of this appeal is whether this Court has the the Board of Immigration Appeals authority to reinstate a grant of voluntary (INS No. A73-115-357) departure and extend the departure date ____________ previously ordered by an Immigration Judge (“IJ”) and affirmed by the Board of Submitted Under Third Circuit LAR Immigration Appeals (“BIA”). In this 34.1(a) June 2, 2003 case, the petitioner, Demetrio Reynoso- Lopez (hereinafter “Reynoso”), seeks Before: BARRY, FUENTES, and review of the BIA’s decision affirming the ROSENN, Circuit Judges. IJ’s denial of his application for asylum and withholding of removal under the (Filed: May 25, 2004) Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(a) and 1253(h), and Michael Morrone, Esq. protection under the Convention Against 899 South College Mall Road Torture (“CAT”). In the alternative, Suite 252 Reynoso asks us to reinstate the now Bloomington, IN 27201 expired thirty-day voluntary departure order granted to him by the IJ and Counsel for Petitioner reinstated by the BIA under 8 U.S.C. § 1229c(b)(1).

1 According to Reynoso, he failed to admitted or paroled. depart voluntarily because he wanted to In removal proceedings on January stay in this country to appeal the BIA’s 28, 1999, Reynoso conceded removability decision of his request for asylum. He and requested reconsideration of his contends that, as a matter of due process, previous petition for asylum. On January we have jurisdiction to reinstate the 20, 2000, the IJ denied all relief, but expired voluntary departure date in the granted Reynoso voluntary departure until event that we affirm the BIA’s denial of March 6, 2000. On July 23, 2002, the BIA his asylum claim. We disagree. Based on affirmed the IJ without opinion. The BIA the plain language of the immigration also granted Reynoso voluntary departure statutes and regulations, which clearly within thirty days of the date of its order. grant the power to reinstate or extend voluntary departure solely to the Attorney Reynoso now appeals the decision General and his delegates at the of the BIA. He raises two primary issues Immigration and Naturalization Service on appeal: (1) whether the BIA erred in (“INS”), we conclude that we lack the affirming the IJ’s denial of his petition for jurisdictional authority to reinstate or asylum; and (2) whether this Court has the extend a voluntary departure order. jurisdictional authority to reinstate an expired grant of voluntary departure. I. We review the IJ’s decision to grant Reynoso is a twenty-seven year old or deny asylum for abuse of discretion. native of Guatemala. He claims that when 8 U.S.C. § 1252(f)(4)(D). Thus, our he was ten years old, he was held in review of the IJ’s factual findings, which confinement by Guatemalan guerrillas. He were adopted by the BIA, is deferential. claims to have escaped to Mexico, where Factual findings, such as credibility he lived for the next six years. In 1993, at determinations, are “conclusive unless any the age of sixteen, Reynoso entered the reasonable adjudicator would be United States without a visa.1 On March compelled to conclude to the contrary.” 8 19, 1994, he applied for asylum, U.S.C. § 1252(b)(4)(B). We must withholding of removal, and protection establish whether the BIA’s factual under the CAT. In the alternative, he de te r mina tions are suppor te d by requested voluntary departure. On substantial evidence. See Senathirajah v. October 19, 1998, the INS charged him INS, 157 F.3d 210, 216 (3d Cir. 1998). with being removable for entering the This standard is “even more deferential” United States without having been than the “clearly erroneous” standard, and requires us to sustain an adverse credibility 1 Although the briefs describe him as determination “unless . . . no reasonable a twenty-three year old (Pet. Br. at 2), if he person” would have found the applicant was sixteen years old in 1993, he is incredible. See Concrete Pipe & Products approximately twenty-seven years old now.

2 of CA v. Construction Laborers Pension encampment. He testified that about two Trust for Southern CA, 508 U.S. 602, 623 weeks after his capture, the family, which (1993). “Adverse credibility findings are apparently included both parents and two afforded substantial deference so long as sisters, escaped the encampment. In the the findings are supported by specific process, Reynoso became separated from cogent reasons.” Gao v. Ashcroft, 299 his family and managed to walk for three F.3d 266, 276 (3d Cir. 2002) (citation days to Chiapas, Mexico, where he stayed omitted). and worked for three years. Thereafter, Reynoso moved to Mexico City, where he lived for another three years, working in a II. restaurant. At the age of 16, Reynoso left In regard to Reynoso’s appeal from Mexico City and crossed into the United the denial of his application for asylum, States. the IJ, after assessing Reynoso’s Reynoso’s parents, with whom he is credibility, determined that Reynoso in regular contact, now live in Cumil, “failed to establish a well-founded fear of Guatemala, a town approximately five persecution as is necessary in order to be hours from Quilco on foot. None of them statutorily eligible for asylum.” Because knows the whereabouts of his younger Reynoso failed to establish eligibility for sisters. Although formal resistance to the asylum, he necessarily failed to meet the Guatemalan government has ended, more stringent standard for showing a Reynoso stated that he believes former “clear probability of persecution” to be guerillas are still active in Guatemala. He eligible for withholding of deportation. testified that, if he returned, he feared INS v. Stevic, 467 U.S. 407, 420 n.13 persecution by these guerillas for failing to (1984). Similarly, based on the join their resistance in 1987. The basis for respondent’s testimony and the evidence this assertion was a list that he claimed the of the record, he did not offer sufficient guerillas have kept which contains names evidence for withholding of removal under of people whom they plan to target for the CAT. We have carefully reviewed the retribution. He believed that both he and entire record and find no basis for his father were on this list. He also stated disturbing the IJ’s thorough and well- that he had acquaintances who, after reasoned oral opinion. We add only the returning to Guatemala in 1997, were following to underscore our agreement killed by former guerillas seeking revenge. with that decision. In addition, Reynoso testified that his At the hearing before the IJ, parents’ crops had been destroyed, Reynoso testified that, at the age of 10, he ostensibly by former guerillas. and his family were captured by a band of In arriving at an adverse credibility guerillas in Guatemala and taken from finding, the IJ pointed to several their home town of Quilco to the guerillas’ deficiencies in Reynoso’s testimony.

3 Specifically, the IJ found questionable particularly believable. The IJ accordingly Reynoso’s testimony relating to (1) a “list” concluded that Reynoso had not met his that the guerillas created in 1987; (2) his burden to establish a well-founded fear of belief that guerillas are still active in persecution if returned to Guatemala. Guatemala; (3) the guerillas’ capture of the We find no abuse of discretion in entire family, including his two younger any of the IJ’s credibility determinations. sisters; and (4) his escape at the age of 10 We accordingly conclude that substantial and subsequent journey through Mexico evidence supports the IJ’s determination and into the United States. that Reynoso failed to support his asylum, The IJ found this testimony withholding of deportation and CAT incredible for several reasons. First, he claims with credible evidence. doubted that Reynoso could have escaped III. the guerilla camp by himself on foot and then supported himself in Mexico from A. ages ten to sixteen. Second, he did not We now turn to the question of find that Reynoso’s account provided a whether we can reinstate Reynoso’s plausible basis for fearing a threat by voluntary departure date. Under certain former guerillas. Third, he took judicial circumstances, the Attorney General will notice of changed country conditions in grant an alien voluntary departure as an Guatemala, finding that the guerillas had alternative to deportation. This allows the disbanded. Therefore, the IJ held that alien to depart the United States at his or Reynoso had failed to show either past her own expense without being subject to persecution or a well-founded fear of the penalties and restrictions that future persecution, as is required to deportation imposes. An alien who is establish statutory eligibility for asylum. deported may not reenter the United States Moreover, the IJ found that any harm for ten years unless the Attorney General Reynoso suffered was not “on account of” permits it. However, an alien who departs any of the five grounds enumerated by the voluntarily is not bound by this restriction INA (i.e., race, religion, nationality, and may reenter the United States once he membership in a particular social group, or or she has obtained proper documentation. political opinion). Instead, the guerillas See Ramsay v. INS, 14 F.3d 206, 211 n.7 mistreated his family in an attempt to (4th Cir. 1994). As an alternative to recruit the family to join their rebellion. granting his petition for asylum, Reynoso The IJ analyzed each of requests that we extend the thirty-day these areas of Reynoso’s testimony and voluntary departure order granted him by supplied specific reasons for his adverse the IJ and reinstated by the BIA. Before credibility findings. In particular, the IJ his voluntary departure period had expired, found that Reynoso’s testimony was Reynoso timely appealed to this Court. exaggerated, embellished, and not However, his departure period ended

4 before appellate review of his asylum authority for appellate courts to reinstate or application was completed. extend the voluntary departure period prescribed by an IJ or the BIA, this Court Reynoso’s request raises an issue of lacks jurisdiction to reinstate Reynoso’s first impression in our Circuit: whether we voluntary departure period. have the authority to extend a voluntary departure order pending our review of a denial of a request for asylum. Several other courts of appeals have considered B. this question and are divided as to whether In 1996, Congress passed the Illegal this authority exists under the current INS Immigration Reform and Immigrant regulations. These regulations state that Responsibility Act (“IIRIRA”). Under the the “[a]uthority to extend the time within plain language of the INA, as amended by which to depart voluntarily specified IIRIRA, the authority to reinstate or extend initially by an immigration judge or the voluntary departure falls solely within the Board is only within the jurisdiction of the discretion of the Attorney General and his district director, the Deputy Executive delegates at the INS. These delegates, Associate Commissioner for Detention and including the IJ and BIA, granted Reynoso Removal, or the Director of the Office of a thirty-day voluntary departure period. Juvenile Affairs. . . .” 8 C.F.R. § Any extension of this time period would 1240.26(f). The Government argues that clearly conflict with the explicit language we do not have jurisdiction to extend the of IIRIRA, which provides that only the voluntary departure period because the district director may determine the time language of the regulation makes clear that period for voluntary departure. the power to grant, extend or reinstate voluntary departure is within the sole The Immigration Regulations, as authority of the Attorney General and his amended by IIRIRA, state: delegates at the INS and Executive Office Authority to extend the time within which f o r I m m igration Rev iew, w hic h to depart voluntarily specified initially by encompasses the IJs and the BIA. Resp. an immigration judge or the Board is only Br. at 28-30. Reynoso counters that due within the jurisdiction of the district process requires that this Court have the director, the Deputy Executive Associate power to extend voluntary departure, or Commissioner for Detention and Removal, else his decision to appeal the BIA’s denial or the Director of the Office of Juvenile of his asylum application will have caused Affairs. An immigration judge or the him to lose “the privilege of voluntary Board may reinstate voluntary departure in departure.” Pet. Br. at 16 (quoting Matter a removal proceeding that has been of Villeagas-Aguirre, 13 I. & N. Dec. 139 reopened for a purpose other than solely (BIA 1969)). We hold that because making an application for voluntary Congress has not provided statutory departure if reopening was granted prior to

5 the expiration of the original period of designated role in this process of setting voluntary departure. the deadline for departure.”). In granting the authority to set voluntary departure dates to the executive branch, it is fair to 8 C.F.R. § 1240.26(f) (emphasis added). say that Congress intended the authority to be exclusive. Our inability to grant Reynoso the Therefore, under IIRIRA, the relief he seeks does not leave him without executive branch, not the judiciary, is a remedy. Under IIRIRA, Reynoso may given the sole authority to determine when apply for reinstatement or extension of an alien must depart. Further, IIRIRA voluntary departure directly to the district specifically limits the role of the courts as director. See 8 C.F.R. § 1244.2(f)(2); to when an alien, under an order of Castaneda, 23 F.3d at 1582. Seeking relief voluntary departure, must leave the from the district director is, in fact, the country. Id. For example, under 8 U.S.C. procedure that Congress intended for a § 1229c(f), “[n]o court shall have petitioner such as Reynoso to follow. jurisdiction over an appeal from denial of Indeed, in this case, the BIA informed a request for an order of voluntary Reynoso that any extension of the departure . . . , nor shall any court order a voluntary departure time period “may be stay of an alien’s removal pending granted by the district director,” thus consideration of any claim with respect to putting him on notice that any relief from voluntary departure.” Additionally, “no the voluntary departure set by the BIA court shall have jurisdiction to review . . . would have to be granted administratively, any judgment regarding the granting of not judicially. BIA Order at 2. Further, relief” under section 1229c. 8 U.S.C. § this statement by the BIA shows that the 1252(a)(2)(B)(i). Reynoso is not BIA has interpreted the INA as giving the appealing a denial of a request for district director sole authority to set and voluntary departure or a claim with respect extend voluntary departure periods. Even to voluntary departure. Thus, these if one were to argue that the statutory provisions do not divest this Court of language were unclear, we would still be jurisdiction in this case. However, they do required to give deference to the BIA’s underscore the fact that, in enacting interpretation of IIRIRA. Chevron U.S.A., IIRIRA, Congress intended to vest the Inc. v. Natural Resources Defense right to set deadlines for an alien’s Council, Inc., 467 U.S. 837 (1984); see voluntary departure solely with the also Zazueta-Carrillo, 322 F.3d at 1173 executive branch, and not the courts. See (same); see also Faddoul v. INS, 37 F.3d Zazueta-Carrillo v. Ashcroft, 322 F.3d 185, 192, 191-93 (5th Cir. 1995) (stating 1166, 1172 (9th Cir. 2003) (“Neither the that there was “[n]o reason to augment the statute nor the regulations give courts any administrative remedy which the alien had

6 neglected,” and denying reinstatement of v. INS, the Eleventh Circuit stressed the voluntary departure because the petitioner fact that Congress has not empowered the did not apply to the BIA or district director courts of appeals to reinstate voluntary for an extension and waited until the last departure orders that have expired. 83 day of his departure period before filing F.3d 353, 357 (11th Cir. 1996). The Court his appeal (citing Farzad v. INS, 808 F.2d held that absent explicit Congressional 1071, 1072 (5th Cir. 1987))); Alsheweikh empowerment to act, an appellate court v. INS 990 F.2d 1025, 1028 (8th Cir. lacks the jurisdictional authority to extend 1993) (declining consideration of the or reinstate voluntary departure. Similarly, petitioner’s application for reinstatement in Castaneda v. INS, the Tenth Circuit held of voluntarily departure, and stating that that it lacked the authority to review a the petitioner “may request this relief from request for reinstatement of a voluntary the INS”). departure order, stating that “none of the pertinent statutes . . . provide any basis Further, under IIRIRA, appellate whatsoever for this court to assume courts retain jurisdiction to review an authority for affording the discretionary, alien’s appeal after he voluntarily departs. administrative relief sought by petitioner.” 8 U.C.C. § 1252(b)(3)(B). This remedy 23 F.3d 1576, 1580 (10th Cir. 1994). The was not available in the pre-IIRIRA Tenth Circuit went on to reiterate that “[i]f regime because, under the former INA, an an act can be performed by a [federal] appellate court lost jurisdiction once a court, it is because it was permitted and petitioner left the country. See 8 U.S.C. § not because it was not prohibited by 1105a(c) (1994). Thus, before IIRIRA, an Congress. Federal courts operate only in alien was forced to choose between the presence rather than the absence of exercising his right to appeal and taking statutory authority.” Id. at 1580 (internal advantage of voluntary departure. Because citation and quotations omitted). IIRIRA eliminates this concern, Reynoso In Kaczmarczyk v. INS, the was free to voluntarily depart and still Seventh Circuit affirmed an order of pursue a petition for review, preserving his deportation and held that the Court lacked appellate rights. See Zazueta-Carrillo, 322 jurisdiction to reinstate or extend voluntary F.3d at 1171; Moore v. Ashcroft, 251 F.3d departure, thus requiring the alien to file a 919 (11th Cir. 2001); Tapia Garcia v. INS, motion with the INS district director 237 F.3d 1216 (10th Cir. 2001). requesting reinstatement of voluntary departure. 933 F.2d 588, 598 (7th Cir. C. 1991), cert. denied, 502 U.S. 981 (1991). The Seventh Circuit did note its concern A number of circuits addressing the that the INS might use its discretionary voluntary departure issue have similarly authority to discourage petitioners from found that they lack jurisdiction to extend seeking judicial review. The Court stated a voluntary departure order. In Nkacoang that “[d]eportable aliens should not be

7 faced with the choice between enjoying the in the context of IIRIRA. Examining the voluntary departure privilege and securing relevant imm igratio n statutes and judicial review of Board determinations;” regulations post-IIRIRA, the Ninth Circuit thus “[s]hould it come to our attention that held that appellate courts lack the authority the INS is wielding its discretion to to extend the time period for voluntary withhold voluntary departure [in order] to departure, and that aliens granted deter applicants from seeking review of voluntary departure must continue their BIA decisions, our scrutiny of that appeals from abroad. Id. discretionary exercise might expand.” Id. While other circuits have taken the (citation omitted). However, as discussed opposite stance, holding that they have above, the passage of IIRIRA has authority to reinstate voluntary departure, eliminated this concern as aliens may now these holdings predate IIRIRA. For pursue their appeals from abroad, avoiding example, the Fourth Circuit in Ramsay v. their having to choose between exercising INS held that an appellate court should their right to appeal and taking voluntary extend voluntary departure when (1) it departure. finds that the INS has used its discretion to The Ninth Circuit also addressed withhold voluntary departure in order to this issue in Zazueta-Carrillo v. Ashcroft, deter applicants from seeking judicial in which it overruled its previous decision review of BIA decisions; and (2) the INS in Contreras-Aragon v. INS and held that, does not indicate that it will present the in light of IIRIRA, appellate courts lack district director with any other reason for authority to reinstate voluntary departure. refusing reinstatement. 14 F.3d at 213 322 F.3d at 1172. In Contreras-Aragon v. (internal quotation marks and citations INS, the Ninth Circuit had held that when omitted). Similarly, in Umanzor-Alvarado an appeals court otherwise has jurisdiction v. INS, the First Circuit held that it had the over a final order of deportation it may authority to extend voluntary departure reinstate a grant of voluntary departure when the INS offered no evidence originally entered by the IJ and BIA. 852 suggesting that the alien had become F.2d 1088, 1092-93 (9th Cir. 1988). After ineligible for departure in the interim IIRIRA, however, the Ninth Circuit between the BIA’s opinion and the reconsidered its decision in Contreras- appellate court’s opinion. 896 F.2d 14, 16 Aragon and concluded that a petitioner’s (1st Cir. 1990); see also Aiyadurai v. INS, voluntary departure period begins when an 683 F.2d 1195, 1201 (8th Cir. 1982) IJ or the BIA enters its order granting (restoring voluntary departure status voluntary departure. See Zazueta-Carrillo, despite the fact that this issue was not 322 F.3d at 1168. The Zazueta-Carrillo raised on appeal, and noting that the Court examined the rationales on which petitioner “qualified for voluntary status at Contreras-Aragon relied, and concluded the . . . deportation hearing and there is no that these rationales were no longer valid indication in the record that she does not

8 continue to qualify”). departure, as the INS does not bear the burden of showing an alien to be ineligible The arguments presented by the for voluntary departure. On the contrary, Fourth and First Circuits, in pre-IIRIRA “it is the alien who bears the burden of decisions, are unpersuasive in light of the proving statutory eligibility for this form plain language of the INA, as amended by of relief and demonstrating that it is IIRIRA. As discussed above, the Fourth warranted.” Castaneda, 23 F.3d at 1582 Circuit’s concern that the INS may use its (citing Rivera-Zurita v. INS, 946 F.2d 118, discretion over voluntary departure in 120 (10th Cir. 1991) (internal quotations order to deter judicial review of BIA omitted)). decisions was eliminated by IIRIRA’s provision that appellate courts retain Finally, the policy considerations jurisdiction over an alien’s appeal after he surrounding voluntary departure support has departed the country. our conclusion that Congress did not intend for appellate courts to have authority to extend voluntary departure In addition, both the Fourth and orders. These considerations were stated First Circuits conclude that there is no by the Ninth Circuit as follows: reason for an appellate court not to toll the initial departure period granted by an IJ or The purpose of a uthorizing the BIA when the INS has offered no voluntary departure in lieu of evidence to suggest that the alien had deportation is to effect the alien’s become ineligible for voluntary departure prompt departure without further during the course of the appeal. See trouble to the Service. Both the Ramsay v. INS, 14 F.3d at 213; Umanzor- aliens and the Service benefit Alvarado v. INS, 896 F.2d at 16. This thereby. But if the alien does not approach, however, conflicts with the depart promptly, so that the Service specific procedures provided for in the becomes involved in further and statute. Whether the relief sought by more costly procedures by his Reynoso in this appeal is characterized as attempts to continue his illegal stay a “reinstatement and extension” of the here, the original benefit to the voluntary departure period or as a Service is lost. And if, after years “tolling,” the effect is the same. See of delay, he is again rewarded with Zazueta-Carrillo, 322 F.3d at 1176 the opportunity for voluntary (Berzon, J., concurring). The INA is clear departure which he has previously that this type of relief may only be sought spurned, what incentive is there for from the district director. Further, as the any alien similarly circumstanced to Tenth Circuit points out, the approach of depart promptly when first given the Ramsay and Umanzor-Alvarado Courts the opportunity? misplaces the burden of persuasion in a petition for extension of voluntary

9 See Zazueta-Carrillo, 322 F.3d at 1173 (quoting Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521 (2d Cir. 1976)). If voluntary departure periods could be extended until after the completion of an appeal, it would discourage prompt departure and even encourage frivolous appeals in an attempt to continue extending an alien’s departure date. Id. at 1173-74. This result would conflict with the INS’ goal of having expeditious removal proceedings. This goal underlies voluntary departure, and is reflected in the clear procedures for extending voluntary departure set out by Congress in IIRIRA.

IV. The BIA’s order affirming the IJ’s denial of Reynoso’s application for asylum, withholding of removal, and protection under the Convention Against Torture is affirmed. Under the INA, we lack jurisdiction to reinstate the IJ’s grant of voluntary departure and to extend Reynoso’s date for departure.