         10-570-ag
         Manikam v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A088 190 058
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 22nd day of March, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _________________________________________
12
13       MELISSA DASHNIE MANIKAM,
14                Petitioner,
15
16                           v.                                   10-570-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Robert C. Ross, West Haven, Conn.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney General;
26                                     Mark C. Walters, Senior Litigation
27                                     Counsel;   Glen   T.   Jaeger,   Trial
28                                     Attorney,    Office   of   Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 1
 2         UPON DUE CONSIDERATION of this petition for review of a

 3   Board of Immigration Appeals (“BIA”) decision, it is hereby

 4   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 5   is DENIED.

 6         Melissa Dashnie Manikam, a native and citizen of South

 7   Africa, seeks review of a January 21, 2010, decision of the

 8   BIA affirming the April 22, 2008, decision of Immigration

 9   Judge (“IJ”) Michael W. Straus denying her motion for a

10   continuance and granting her request for voluntary departure

11   with an alternate order of removal.           In re Melissa Dashnie

12   Manikam, No. A088 190 058 (B.I.A. Jan. 21, 2010), aff’g No.

13   A088 190 058 (Immigr. Ct. Hartford Apr. 22, 2008).            We assume

14   the   parties’   familiarity     with   the   underlying      facts    and

15   procedural history in this case.

16         The sole claim that the petitioner raises on appeal is

17   that her decision to file a petition for review in this Court

18   should not have had the effect, pursuant to 8 C.F.R. §

19   1240.26(i),   of   terminating    the   BIA’s    grant   of   voluntary

20   departure.1      She   argues    that   the     application    of     this


           1
           Manikam abandoned in her opening brief the claim that
     presumably prompted this appeal, that the agency’s denial of
     her motion for a continuance constituted an abuse of
     discretion, conceding that it would be frivolous to maintain
     the argument on appeal.
                                       2
 1   regulation to her case was impermissibly retroactive, because

 2   she had applied for and accepted voluntary departure from the

 3   IJ prior to the regulation’s effective date.         The government

 4   contends that we lack jurisdiction to hear the petitioner’s

 5   appeal on this issue.

 6        As a general matter, we lack jurisdiction to review any

 7   regulation issued by the Attorney General that limits an

 8   alien’s eligibility for voluntary departure pursuant to 8

 9   U.S.C. § 1229c(e).     However, we retain jurisdiction to review

10   constitutional claims and “questions of law,” 8 U.S.C. §

11   1252(a)(2)(D), although this exception does not extend to a

12   “legal argument that is so insubstantial and frivolous as to

13   be   inadequate   to   invoke    federal-question    jurisdiction.”

14   Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).

15   Here, while we conclude that the petitioner’s retroactivity

16   claim is ultimately without merit, it is not so frivolous as

17   to deny us jurisdiction over the claim. See id. at 41 n.6 (“If

18   an   asserted   constitutional    claim   or   question   of   law   is

19   colorable, we have jurisdiction to review it, whether or not

20   it is ultimately found to be meritorious.”).

21        Whether the challenged regulation has retroactive effect

22   is a legal question, which we review de novo, see Manzur v.


                                       3
 1   DHS, 494 F.3d 281, 288 (2d Cir. 2007).     While Congress can

 2   delegate to an agency the power to engage in retroactive

 3   rulemaking through a sufficiently clear statement, see City of

 4   New York v. Permanent Mission of India to United Nations, 618

 5   F.3d 172, 195 (2d Cir. 2010), the regulation at issue here

 6   specifically disclaims any retroactive effect, see Voluntary

 7   Departure: Effect of a Motion to Reopen or Reconsider or a

 8   Petition for Review, 73 Fed. Reg. 76,927, 76,936 (Dec. 18,

 9   2008) (codified at 8 C.F.R. pts 1240 & 1241).     The inquiry

10   thus becomes whether this regulation, despite claiming to

11   operate prospectively only, has retroactive effect in its

12   application in this case.   A regulation has such an effect

13   “when it takes away or impairs vested rights acquired under

14   existing laws, or creates a new obligation, imposes a new

15   duty, or attaches a new disability, in respect to transactions

16   or considerations already past.”    Samuels v. Chertoff, 550

17   F.3d 252, 260 (2d Cir. 2008) (quoting INS v. St. Cyr, 533 U.S.

18   289, 321 (2001)). In deciding whether a particular statute or

19   regulation acts retroactively, we are “informed and guided by

20   familiar considerations of fair notice, reasonable reliance,

21   and settled expectations.” St. Cyr, 533 U.S. at 321 (internal

22   quotation marks omitted).


                                   4
 1       As a preliminary matter, the challenged regulation does

 2   not in fact prevent a petitioner in Manikam’s position from

 3   bringing a petition for review of the BIA’s decision to this

 4   Court   while   remaining     entitled    to   a   grant   of   voluntary

 5   departure. It merely requires that, to pursue such an appeal,

 6   the alien depart the United States within 30 days of filing

 7   the petition for review and provide evidence to DHS that she

 8   has departed and remains outside the United States while her

 9   appeal is pending.      See 8 C.F.R. § 1240.26(i); cf. Samuels,

10   550 F.3d at 260 (noting, in finding a regulation not to have

11   retroactive effect, that it did not make it impossible for an

12   immigrant to obtain a certain waiver but rather simply made it

13   more difficult).

14       Conditioning entitlement to voluntary departure on such

15   a restriction of the petitioner’s ability to seek review of a

16   BIA decision simply does not constitute an impairment of any

17   settled   expectation    on    the   petitioner’s     part.       As   the

18   government notes, the decision to grant voluntary departure is

19   a discretionary one, such that a petitioner cannot ordinarily

20   be thought to have a settled expectation in receiving this

21   “discretionary form of relief.”          Dada v. Mukasey, 554 U.S. 1,

22   8 (2008).   Even after the petitioner was initially granted


                                          5
 1   voluntary departure by the IJ in April 2008, she cannot be

 2   said to have a settled expectation of a stay of the order

 3   while pursuing an appeal before this Court, as such a stay is

 4   also a discretionary remedy that depends in part on the

 5   petitioner’s likelihood of success on appeal.                 See Thapa v.

 6   Gonzales, 460 F.3d 323, 329, 334 (2d Cir. 2006); see also Nken

 7   v. Holder, 129 S. Ct. 1749, 1757 (2009) (“A stay . . . ‘is not

 8   a matter of right . . . .’” (quoting Virginian Ry. Co. v.

 9   United States, 272 U.S. 658, 672 (1926)).

10         Further,     despite        the   petitioner’s      contention,     the

11   regulation at issue in this case “does not alter the quid pro

12   quo between the Government and the alien.”                Dada, 554 U.S. at

13   21.    Here, the government has not “received benefits without

14   costs,” id., but rather simply conditionally granted the

15   petitioner       voluntary        departure     as   an    alternative     to

16   deportation after both the IJ and BIA denied her request for

17   a continuance.         There is simply no basis for concluding that

18   in    deciding    to     accept     voluntary    departure    under     these

19   circumstances the petitioner was reasonably relying on a

20   continued ability to seek a stay of the voluntary departure

21   order while seeking judicial review of a BIA decision or that

22   her quid pro quo with the government was otherwise altered.


                                             6
 1       Finally, the BIA provided Manikam with fair notice that

 2   filing a petition for review would terminate the agency’s

 3   grant of voluntary departure.           Whatever ambiguity existed as

 4   to the new rule’s scope of application when it was originally

 5   published for comment, at the time Manikam decided to bring a

 6   petition for review to this Court, she had clear notice from

 7   the text of the regulation as well as from the BIA decision

 8   itself that in doing so she would lose her entitlement to

 9   voluntary departure.     In light of these considerations, it is

10   evident    that   8   C.F.R.   §    1240.26(i)    did   not   have   an

11   impermissible retroactive effect in its application to the

12   proceedings in Manikam’s case.

13       For the foregoing reasons, the petition for review is

14   DENIED.    As we have completed our review, any stay of removal

15   that the Court previously granted in this petition is VACATED,

16   and any pending motion for a stay of removal in this petition

17   is DISMISSED as moot. Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

19   Appellate Procedure 34(a)(2) and Second Circuit Local Rule

20   34.1(b).

21                                      FOR THE COURT:
22                                      Catherine O’Hagan Wolfe, Clerk
23


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