                                                                                                                           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Precedential or Non-Precedential: Precedential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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                     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.




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