            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                       FILED
                                                                                    January 26, 2009

                                            No. 07-60510                         Charles R. Fulbruge III
                                                                                         Clerk

ROLAND KELLER

                                                         Petitioner
v.

MARK FILIP, ACTING U S ATTORNEY GENERAL

                                                         Respondent



                           Petition for Review of an Order of the
                               Board of Immigration Appeals
                                    BIA No. A77 399 081


Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Roland Keller seeks review of a decision by the Board of Immigration
Appeals (“BIA”) that granted him voluntary departure. Though that is the relief
he requested, he argues here that the BIA’s method of granting the relief was
beyond its authority and therefore was not something on which he could rely to
depart. We agree that the BIA erred. In addition, we conclude that the BIA
erred in affirming the immigration judge’s denial of a continuance. We grant
Keller’s petition, REVERSE, and REMAND.



        *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                              I. BACKGROUND
      Keller is a native and citizen of Switzerland. He was admitted into the
United States in 1991 as a nonimmigrant with authorization to remain for a
temporary period. In September 1998, the Immigration and Naturalization
Service issued a notice for Keller to appear, which alleged that he was subject
to removal for remaining in the United States without permission beyond his
authorized period. Keller’s case was initially set before an immigration judge in
February 1999. Due to multiple continuances, he did not have a merits hearing
until December 2002. At that merits hearing, Keller admitted the allegations
and conceded removability. In September 2004, Keller’s counsel indicated that
the only relief available to Keller was voluntary departure. A merits hearing on
that was requested. After two delays caused by the government, the hearing
was set for April 2006.
      In March 2006, Keller’s counsel filed an unopposed motion for a
continuance because she would be out of the country on business during the
April hearing. The motion remained pending when the date for the hearing
arrived. Keller appeared alone. The immigration judge acknowledged that
continuances were normally granted when unopposed. However, due largely to
internal time limits regarding the disposition of cases, the continuance was
denied. Keller was granted a form of voluntary departure after Keller was found
to be a model resident. Keller was given 120 days to depart voluntarily from the
United States and was allowed to reserve the right to appeal the decision.
      Keller then appealed to the BIA. He argued that the immigration judge
abused her discretion in denying the continuance. He also argued that he should
have been required to pay a departure bond. He requested that the BIA remand
the case in order for the immigration judge to make a proper grant of a voluntary
departure that would not later be subject to challenge should he seek to return

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to this country. The BIA sustained the denial of the continuance but agreed that
a departure bond was required. The BIA shortened Keller’s departure period to
60 days and ordered him to pay a $500 departure bond.
      Keller appealed here. He presents three issues: (1) whether the BIA erred
in affirming the denial of a continuance; (2) whether we have jurisdiction to
decide whether the BIA’s decision was ultra vires and inconsistent with BIA
precedent; and, if so, (3) whether the BIA acted in a manner that was ultra vires
and inconsistent with precedent.
                               II. DISCUSSION
      A. Denial of Continuance
      The decision of whether or not to grant a continuance lies within the sound
discretion of the immigration judge. Masih v. Mukasey, 536 F.3d 370, 373 (5th
Cir. 2008). “Accordingly, we review a decision to grant or deny a continuance for
an abuse of discretion.” Id. Generally, we only have authority to review the
decision of the BIA; however, when the immigration judge’s decision affects the
BIA’s decision, we also review the decision of the immigration judge. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In this case, in affirming the
immigration judge’s decision, the BIA recited the facts and for its ruling, noted
only that it found no error in the immigration judge’s opinion.
      Keller’s attorney filed an unopposed motion for a continuance that sought
to delay the hearing before the immigration judge scheduled for April 2006. No
continuance prior to the hearing was granted. Keller appeared without his
attorney, who apparently had proceeded with her business trip that had been
the factual basis for the motion.
      The immigration judge provided a thorough explanation of her
motivations. She “normally would have granted said request,” the judge stated,
because it was unopposed. What made the case an exception was the “pressure

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on the undersigned judge to complete cases in a timely manner.” She would
deny Keller’s motion because of “the existence of the afore-referenced ‘completion
goals,’ which the Court believed made it imperative for the case to [be] completed
before it became three years old . . . .” Because the case was old, “the office of the
Chief Immigration Judge is putting a great deal of pressure on the undersigned
judge to complete cases in a timely manner. . . . if the Court continues it, there
would be a price to be paid as far as this Judge is concerned.”
      Later at the hearing, Keller mentioned his need for the attorney. The
judge stated:
      I know. And it’s not your fault. And it’s unfortunate. . . . I don’t feel
      like I can – it’s either, doing what your attorney wants or protecting
      my job security. So I don’t really think I have much choice. And it’s
      unfortunate, but there’s not much I can do about it at this point
      It is true that the judge made other statements, such as that counsel was
on a business trip but had not explained why it had been scheduled at a time
that conflicted with the hearing. The judge’s ultimate finding was that there
was “not sufficient cause” for the continuance. Yet the record strongly indicates
that the few essentially acceptable considerations that were mentioned played
little role in the ruling. Most tellingly, perhaps, the immigration judge stated
that she believed she had “no choice” but to deny the motion.
      As already noted, the decision to deny a continuance is a discretionary
decision for the immigration judge. See Masih, 536 F.3d at 370. “Discretion” is
not a meaningless label to be applied to the decision that is made. To constitute
discretion, there must be a “power of free decision or choice within certain legal
bounds.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 647 (Merriam-
Webster 1993). If case disposition targets become fetters, an appellate court
does not review an exercise of discretion because none existed. In this case, the
immigration judge made it clear that she had no discretion to exercise, that

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Keller could not be granted a continuance due to the judge’s fear of repercussions
for violating case completion goals set by her superiors.
      Because the immigration judge did not exercise discretion in making what
must be a discretionary decision, the immigration judge’s ruling is invalid. The
BIA, which reviews an immigration judge’s discretionary decisions de novo, 8
C.F.R. § 1003.1(d)(3)(ii), did not recognize this error. The BIA also erred.
      Though the BIA erred in affirming the immigration judge’s denial of the
continuance, we still find it necessary to reach other issues. This appeal comes
to us in an unusual posture, that of a petitioner’s having received the relief he
requested but in a form that allegedly was so flawed as not to be a reliable grant
of a right to act. Absent such a defect, any failure to grant a continuance would
be harmless and no basis to reverse. As we will explain, we find reversal to be
required and order the matter returned to an immigration judge. We see no
reason for a judge again to consider whether a continuance should have been
granted in April 2006. The issues after remand will be how to proceed now, not
how to reconstruct whether a continuance was deserved almost three years ago.
      B. Jurisdiction to Review the BIA’s Decision
      The government argues that this court lacks jurisdiction to decide whether
the BIA’s grant to Keller of post-hearing voluntary departure was ultra vires and
inconsistent with precedent. First, the government relies upon a statute that
requires the exhaustion of administrative remedies. See 8 U.S.C. § 1252(d)(1).
The government argues that because Keller’s ultra vires argument was not
raised before the BIA, it is not properly before this court. The government
contends that this issue should have been raised before the BIA through either
a motion to reopen or a motion to reconsider. Second, in a footnote, the
government cites a statute that allegedly bars our review of orders respecting
voluntary departures. We separately discuss these arguments.

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            1. Failure to Exhaust
      A final order of removal may be reviewed only when “the alien has
exhausted all administrative remedies available to the alien as of right.” Id. §
1252(d)(1). The phrase “as of right” is not defined in the statute.      In some
circumstances – and the government argues those circumstances exist here –
exhaustion will require a petitioner to file a motion to reopen.        “When a
petitioner seeks to raise a claim not presented to the BIA and the claim is one
that the BIA has adequate mechanisms to address and remedy, the petitioner
must raise the issue in a motion to reopen prior to resorting to review by the
courts.” Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001).
      Despite these requirements, we have held that a petitioner may allege that
the BIA acted in an ultra vires manner without first raising the issue at the BIA.
James v. Gonzales, 464 F.3d 505 (5th Cir. 2006). In James, an immigration
judge terminated removal proceedings against an alien. The BIA then, without
a meaningful request from the government, ordered the alien removed. The
alien petitioned for review and argued that the BIA acted ultra vires in ordering
him removed. The government responded that the alien had forfeited this
argument by failing to raise it before the BIA. Because the government had only
requested “in passing” that the BIA order removal, we were not persuaded that
adequate notice existed for the petitioner to have anticipated the issue. Id. at
513. We also stated that a motion to reopen was not generally a component of
exhaustion. Id. Consequently, no forfeiture of the issue had occurred. Id.
      In another recent case, we placed a somewhat different emphasis
regarding motions to reopen. Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334-
35 (5th Cir. 2008).    The conviction that had caused that petitioner to be
removable was vacated after the usual 90-day period for filing a motion to


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reopen with the BIA had expired. As a result, the petitioner made no effort to
reopen and proceeded with his appeal. Still, we refused to consider the appeal
because the petitioner could have filed a motion requesting the BIA to exercise
its discretion to consider a late motion in “exceptional circumstances.” Id. The
opinion stated that the controlling point was not whether a motion to reopen had
been filed; it was whether the issue had been fairly presented to the BIA. Id. at
336. “In cases where the BIA has previously ruled on an issue, we do not hold
that in order to exhaust their administrative remedies for purposes of invoking
federal court jurisdiction that petitioners must file a motion to reopen in order
to have the agency reconsider the same issue.” Id. We also noted that James “at
least arguably” was a case where a motion to reopen was not required because
the BIA had previously ruled on the issue. Id. at 336 n.3.
      Comparing the precedents, we find that in Toledo-Hernandez, the issue
that the operative conviction had been vacated was first argued to this court.
The fact of vacation was neither presented to nor considered by the BIA.
Returning to the BIA was therefore necessary. Keller, though, makes no factual
allegation that was unconsidered by the BIA. In James, the other key precedent,
an immigration judge terminated removal proceedings. Then on appeal, the BIA
ordered the alien removed despite that the government had not meaningfully
argued for that option. Similarly, neither Keller nor the government requested
that the BIA do what it did. Keller had argued to the BIA that it should remand
to the immigration judge; the government argued that there was no error to
correct. Instead, after finding error in the immigration judge’s decision, the BIA
ruled on the merits of the voluntary departure.
      We find this case similar to James. It is to this court that Keller for the
first time argues that the BIA’s sua sponte decision to grant relief was beyond
its authority. As in James, because the alien did not have reason to anticipate

                                        7
the action taken by the BIA, the only time to have raised the issue would have
been in a motion to reopen. On these facts, that motion was not required.
      In summary, we said in Toldeo-Hernandez that James should not be read
to excuse a motion to reopen when a critical event occurred after the BIA’s initial
decision that would change the basis for the decision. On the other hand, we do
not read Toledo-Hernandez to mandate a motion to reopen when there is nothing
new to present to the BIA other than alleged ultra vires legal error in the
manner in which it decided the issue before it. The basic point is that when the
BIA acts beyond its authority, a petitioner will usually not need to anticipate
that action in initial briefing or respond to it with a motion to reopen.
      We now address the other jurisdictional bar raised by the government.
            2. Jurisdiction Under 8 U.S.C. § 1252(a)(2)(B)(i)
      One of the immigration statutes contains a provision entitled “Denials of
discretionary relief.” 8 U.S.C. § 1252(a)(2)(B). The statutory text then denies
courts jurisdiction to review “any judgment regarding the granting of relief”
under Section 1229c – the statute governing voluntary departure. Id. §
1252(a)(2)(B)(i). The BIA did not deny a voluntary departure, which is what the
title to the statutory subsection seems to require, but the BIA did enter a
judgment “regarding the granting of” the relief of a voluntary departure. That
judgment went further than the relief Keller requested from the BIA. According
to Keller, the BIA also went further than it legally could go.
      So our first question is whether judicial review is barred by this statutory
subparagraph. We find the answer in a later subparagraph of the same statute.
It provides that subparagraph (B), which we quoted, is not to be “construed as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance with
this section.” Id. § 1252(a)(2)(D). A claim that an agency has acted ultra vires,

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i.e., beyond its legal authority, is of course a question of law. Jean v. Gonzales,
452 F.3d 392, 396 (5th Cir. 2006) (finding that ultra vires claims are questions
of law and permitting the exercise of jurisdiction).
      Keller’s argument presents a legal question over which this court has
jurisdiction. We now seek the answer to that question.
      C. Ultra Vires Acts; Consistency with Precedent
      A grant of voluntary departure after a hearing has been conducted
requires the immigration judge to set an amount for a departure bond and
establish a deadline for voluntary departure at no more than 60 days from her
order. 8 C.F.R. § 1240.26. Though voluntary departure was granted to Keller
after a hearing, he was given twice the maximum amount of time to depart, and
no bond was set.     On appeal, the BIA sought to correct these errors by
establishing a bond and a proper departure deadline. The crux of Keller’s
argument is that the BIA neither made nor could it make the findings that are
required before post-hearing voluntary departure may legitimately be ordered.
Keller argues that the only proper order after the BIA found these defects in the
immigration judge’s decision was to remand for additional presentation of
evidence and fact-finding. The four findings required are these:
      (A) the alien has been physically present in the United States for a
      period of at least one year immediately preceding the date the notice
      to appear was served under section 1229(a) of this title;
      (B) the alien is, and has been, a person of good moral character for
      at least 5 years immediately preceding the alien’s application for
      voluntary departure;
      (C) the alien is not deportable under section 1227(a)(2)(A)(iii) or
      section 1227(a)(4) of this title; and
      (D) the alien has established by clear and convincing evidence that
      the alien has the means to depart the United States and intends to
      do so.
8 U.S.C. § 1229c(b). Neither the immigration judge nor the BIA made these


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findings. By regulation, the BIA can review questions of law and the exercise of
discretion. 8 C.F.R. § 1003.1(d)(3)(ii). It cannot find facts, however, and must
remand if those are needed:
      Except for taking administrative notice of commonly known facts
      such as current events or the contents of official documents, the
      Board will not engage in factfinding in the course of deciding
      appeals. A party asserting that the Board cannot properly resolve
      an appeal without further factfinding must file a motion for remand.
      If further factfinding is needed in a particular case, the Board may
      remand the proceeding to the immigration judge or, as appropriate,
      to the Service.
Id. § 1003.1(d)(3)(iv).
      Though the BIA is not to make find facts, another circuit concluded that,
“[p]rovided the BIA can do so without additional fact-finding,” the BIA could
decide whether an alien would merit a favorable exercise of discretion. Wood v.
Mukasey, 516 F.3d 564, 569 (7th Cir. 2008).       We see no basis to apply such
reasoning here. The defect we have noted is the absence of findings, and Wood
agreed that the BIA could not undertake additional fact-finding.
      Looking at our missing findings, we see that Keller had the burden of
proof. The deportable alien has “the burden of establishing that he or she is
eligible for any requested benefit or privilege and that it should be granted in the
exercise of discretion.” 8 C.F.R. § 1240.8(d). This burden specifically applies in
the context of a request for voluntary departure. See id. § 1240.11(b), (e). An
examination of this record does not reveal clear evidence to support each of the
four findings that must be made. Had the continuance properly been denied,
Keller would have needed to present his evidence at that hearing. Because the
continuance was denied on an improper basis, we conclude that any current
absence of evidence in the record is not fatal to Keller’s petition.
      In summary, the necessary fact-findings for the voluntary departure

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authorized by the BIA were never made. The BIA could not properly state
findings to replace the omitted ones. Thus, it was an ultra vires act for the BIA
to grant post-hearing voluntary departure.
      Keller also argues that the BIA’s decision was inconsistent with its own
precedents, but we need not reach that issue.
                              III. CONCLUSION
      Allowing an alien to depart with a right to return under certain conditions
is the purpose of the voluntary departure scheme. Significant questions about
the validity of this voluntary departure order existed and were properly the
subject of appeal. We grant Keller’s petition for review, REVERSE the order of
the BIA, and REMAND with instructions that the BIA remand to an
immigration judge for proceedings consistent with this opinion.




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