                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2005

Castro Barrios v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-3211




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                         No. 03-3211
                         __________

      MIGUEL FRANCISCO CASTRO BARRIOS,
                             Petitioner,
                     v.
   ATTORNEY GENERAL OF THE UNITED STATES *,
                             Respondent.
                 __________

          On Petition for Review of Order of Removal
            from the Board of Immigration Appeals
                   U.S. Department of Justice
           Executive Office for Immigration Review
                    (BIA No. A73-048-242)
                          __________

           Argued: Wednesday, December 15, 2004
                      ___________

   Before: NYGAARD and GARTH, Circuit Judges, and
POLLAK, District Judge*


      *
         The Honorable Louis H. Pollak, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
             (Opinion Filed: February 25, 2005)
                       __________

                         OPINION
                        __________


ROBERT FRANK, Esq. (argued)
60 Park Place, Suite 1304
Newark, NJ 07102

      Attorney for Petitioner
      Miguel Castro Barrios

PETER D. KEISLER
Assistant Attorney General
Civil Division

MICHELLE E. GORDEN
Senior Litigation Counsel
Office of Immigration Litigation

THOMAS H. TOUSLEY (argued)
Attorney
Office of Immigration Litigation
Civil Division
United States Department of Justice
Ben Franklin Station, P.O. Box 878
Washington, D.C. 20044


                                -2-
       Attorneys for Respondent
       Attorney General of the United States

Garth, Circuit Judge:

        Section 242B(e) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996), prohibits
an alien who has remained in the United States after the
scheduled date of voluntary departure from applying for certain
forms of relief, including an adjustment of status, for a period of
five years.1 A proper showing of “exceptional circumstances”
is the only escape from the clear strictures of that provision. See
8 U.S.C. §§ 1252b(e)(2)(A), (f)(2) (repealed 1996).

        In this appeal, we must decide whether the failure of the
immigration authorities to adjudicate a timely and properly filed
motion to reopen during the pendency of the period of voluntary
departure falls within the “exceptional circumstances” exception
to section 242B(e). We hold that a motion to reopen that has not
been intentionally delayed and has been filed prior to the date
of voluntary departure, but not acted upon by the immigration
authorities, falls within the “exceptional circumstances”
exception, and thus we grant Barrios’s Petition for Review.

                                I.



       1
           Barrios’s petition is controlled by that now-repealed
section because he was charged by the INS with deportation
prior to its repeal.

                                -3-
        In December of 1988, Miguel Castro Barrios, a native
and citizen of Chile, was lawfully admitted to the United States
as a visitor for pleasure for the period ending on June 27, 1989.
At the time of his entry, Barrios was nine years of age. He has
remained in the United States since that time, receiving the
majority of his education in American schools.

       On July 1, 1996, the then-Immigration and Naturalization
Service (“INS”)2 served Barrios with an Order to Show Cause,
charging him with deportability under section 241(a)(1)(B) of
the INA, 8 U.S.C. § 1251(a)(1)(B), as an overstay. After the
conclusion of the deportation proceedings,3 in which the
Immigration Judge (“IJ”) and the Board of Immigration Appeals
(“BIA”) found Barrios deportable as charged and denied his
application for suspension of deportation, the BIA granted
Barrios voluntary departure in lieu of deportation through April
26, 2003.

      Barrios never left the United States, and on April 10,
2003, he married a United States citizen, Ms. Stacy Kuspiel.
Five days later, on April 15, 2003, Kuspiel filed an Alien


       2
         The INS is now the Bureau of Citizenship and
Immigration Services within the Department of Homeland
Security. 6 U.S.C. § 271. Because the INS commenced the
relevant proceedings, we will use INS herein, unless otherwise
indicated.
       3
         Barrios’s case was consolidated with the related cases
of his parents and sister into one deportation proceeding.

                               -4-
Relative Petition (Form I-130) on Barrios’s behalf with the
United States Bureau of Citizenship and Immigration Services,
seeking to secure him permanent resident status as the spouse of
a United States citizen. Thereafter, on April 18, 2003, eight
days before his voluntary departure period expired, Barrios filed
a motion to reopen his deportation proceedings with the BIA to
allow for consideration (by the IJ) of his application for
adjustment of status based upon his recent marriage.4


       4
           Section 245 of the INA is the proper statutory
framework for adjudicating an application for adjustment of
status filed by an alien in deportation proceedings. Under
section 245, an alien may be eligible for adjustment of status if,
among other prerequisites, an immigrant visa is immediately
available. 8 U.S.C. § 1255(a). One of the ways by which an
alien may become eligible to receive an immigrant visa is
through marriage to a United States citizen. 8 U.S.C. §
1151(b)(2)(A)(i). An approved I-130 filed by the spouse
satisfies the requirement that a visa be immediately available.
INS v. Miranda, 459 U.S. 14, 15 (1982).

       However, approval of the I-130 petition does not
automatically entitle the alien to adjustment of status. INS v.
Chadha, 462 U.S. 919, 937 (1983) (citing Menezes v. INS, 601
F.2d 1028 (9th Cir. 1979)). While an I-130 establishes eligibility
for adjustment of status, the Attorney General--or in the context
of deportation proceedings, the IJ-- still has discretion to accord
the status. 8 U.S.C. § 1255(a); Agyeman v. INS, 296 F.3d 871,
879 (9th Cir. 2002) (citing Amarante v. Rosenberg, 326 F.2d 58,
62 (9th Cir. 1964)).

                                -5-
        When the BIA finally considered the motion to reopen on
June 30, 2003, it denied the motion based on section 242B(e) of
the INA, 8 U.S.C. § 1252b(e). That section prohibits an alien
who has remained in the United States past the relevant period
of voluntary departure from applying for an adjustment of status
for a period of five years, absent a showing of exceptional
circumstances for failing to depart. Inasmuch as Barrios
remained in the United States beyond his voluntary departure
date, the BIA determined that he was statutorily ineligible for an
adjustment of status, notwithstanding his then-recent marriage
to a United States citizen. See 8 U.S.C. § 1252b(e)(2)(A). The
BIA relied heavily on its prior decision in Matter of Shaar, 21
I & N Dec. 541 (BIA 1996), aff’d, 141 F.3d 953 (9th Cir. 1998),
which held that the pendency of a request for relief–in that case,
a motion to reopen deportation proceedings filed just prior to the
departure date–failed to constitute an “exceptional
circumstance” justifying a failure to timely depart.5




       5
         On July 30, 2003, Barrios also filed a motion to
reconsider the BIA’s June 30, 2003 order denying reopening.
That motion was denied on September 26, 2003. Barrios,
however, did not seek an extension of his voluntary departure
period. We are aware that in Shaar v. INS, 141 F.3d 953,
mention was made of the petitioners’ failure to move to extend
their voluntary departure period. Our result as expressed here
does not require such a motion.

                               -6-
       This Petition for Review followed.6

                               II.

        Because Barrios was placed in deportation proceedings
prior to April 1, 1997, and his final order of deportation was
entered by the BIA after October 31, 1996, we have jurisdiction
pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional
rules established by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009 (Sept. 30, 1996) (“IIRIRA”). See Sandoval v. Reno,
166 F.3d 225, 229-31 (3d Cir. 1999) (applying IIRIRA’s
transitional rules to jurisdiction).

       We review the BIA’s denial of a motion to reopen for
abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992).
We review the BIA’s legal conclusions de novo, with
appropriate deference to the agency’s interpretation of the
underlying statute in accordance with administrative law
principles. Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d Cir.
2001). We are also mindful of “‘the longstanding principle of
construing any lingering ambiguities in deportation statutes in
favor of the alien.’” INS v. St. Cyr, 533 U.S. 289, 320 (2001)
(quoting INS v. Cardoza--Fonseca, 480 U.S. 421, 449 (1987)).

                             III.



       6
        On March 16, 2004, the Alien Relative Petition (I-130)
was approved by the immigration authorities.

                              -7-
       Barrios argues that he is eligible for an adjustment of
status based on his marriage to a United States citizen. He
further argues that he filed the motion to reopen with the BIA in
a timely manner, prior to his voluntary departure date, and that
the administrative delay of the BIA in adjudicating his motion
should not deprive him of the relief to which he is entitled.
Insofar as Matter of Shaar compels a contrary conclusion, he
argues that it should be rejected as a draconian and unreasonable
interpretation of 8 U.S.C. § 1252b(e)(2)(A).

       Inasmuch as Barrios’s deportation proceedings
commenced prior to the effective date of the IIRIRA, the
governing statutory provisions are found in the now-repealed
section 242B(e)(2)(A) of the INA,7 which provides, in relevant
part:

       [A]ny alien allowed to depart voluntarily under
       section 1254(e)(1) of this title or who has agreed
       to depart voluntarily at his own expense under
       section 1252(b)(1) of this title who remains in the
       United States after the scheduled date of
       departure, other than because of exceptional
       circumstances, shall not be eligible for relief
       described in paragraph (5) for a period of 5 years
       after the scheduled date of departure or the date of
       unlawful reentry, respectively.


       7
        The IIRIRA repealed 8 U.S.C. § 1252b and replaced it
with a new voluntary departure provision codified at 8 U.S.C. §
1229c.

                               -8-
INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed
1996) (emphasis added). The relief that is unavailable due to a
failure to voluntarily depart includes adjustment of status. Id. §
242B(e)(5)(C), 8 U.S.C. § 1252b(e)(5)(C) (repealed 1996). For
purposes of the voluntary departure provisions, “[t]he term
‘exceptional circumstances’ refers to exceptional circumstances
(such as serious illness of the alien or death of an immediate
relative of the alien, but not including less compelling
circumstances) beyond the control of the alien.” Id. §
242B(f)(2), 8 U.S.C. § 1252b(f)(2) (repealed 1996).

        Here, the precise question is whether Barrios’s timely
filing of a motion to reopen deportation proceedings before his
scheduled voluntary departure date constitutes the requisite
“exceptional circumstances” to overcome the statutory bar. We
conclude that it does, thereby rejecting the BIA’s construction
of the statute in Matter of Shaar.

       We begin our discussion with Matter of Shaar, 21 I & N
Dec. 541, a case involving substantially similar facts to those of
the present appeal. There, after the completion of deportation
proceedings, the INS granted the Shaars the privilege of
voluntary departure. Three days prior to the expiration of their
voluntary departure period, the Shaars moved to reopen their
case in order to apply for suspension of deportation. By that
time, they had accrued the requisite seven years to qualify for
such relief. See 8 U.S.C. § 1254(a)(1) (repealed 1996).

       However, the en banc BIA, in a 7-5 decision, with four
strong separate dissenting opinions, held that an alien who has
filed a motion to reopen during the pendency of a voluntary

                               -9-
departure period, but who subsequently remains in the United
States after the scheduled date of departure, is statutorily
ineligible for suspension of deportation pursuant to section
1252b, absent a showing that the alien’s failure to depart timely
was due to “exceptional circumstances.” Id. at 548-49. The
BIA further held that neither the filing of a motion to reopen
during the pendency of a period of voluntary departure, nor the
IJ’s failure to adjudicate the motion prior to the expiration of the
alien’s voluntary departure period, constituted an “exceptional
circumstance.” Id. Accordingly, the BIA denied the Shaars’
motion to reopen. Id.

         The Ninth Circuit affirmed, in a 2-1 panel decision,
finding no fault with the BIA’s reading of the statute. Shaar v.
INS, 141 F.3d 953, 956 (9th Cir. 1998). That court concluded
that the language of the statute was unambiguous and evinced a
congressional intent to “control untoward delays” in the
immigration system. Id. In addition, the court acknowledged
that Congress provided “a single escape from the strictures of
the provision–exceptional circumstances.” Id. at 957. That
escape, however, was foreclosed because no such circumstances
were present in the case. Id.

        Of particular relevance here, the Ninth Circuit held that
the mere filing of a motion to reopen does not constitute
“exceptional circumstances” within the meaning of the statute.
Id. Nor was the court impressed with the Shaars’ claim that the
hearing date scheduled for their request to reopen was beyond
their control, and thus compelling. As the court stated, “[i]t was
hardly exceptional that the IJ could not reach [the Shaars’]
petition to reopen within the two or three days . . . which they

                               -10-
saw fit to give him.” Id.

       Although mindful of the deference normally due to the
agency’s interpretation of the INA, we cannot agree that Matter
of Shaar is a permissible interpretation of the statute, at least
insofar as the BIA narrowly construed the “exceptional
circumstances” provision to exclude the good faith filing of a
motion to reopen deportation proceedings within the voluntary
departure period. Such an interpretation is unwarranted for two
principal reasons. First, the statute does not define “exceptional
circumstances” other than to provide that they should be at least
as compelling as those caused by serious illness or the death of
an immediate relative. See 8 U.S.C. § 1252b(f)(2). Second, and
more importantly, the BIA’s construction of the statute elevates
and promotes the date of adjudication over the date of filing.
We cannot agree that such a construction is reasonable and
comports with congressional intent.

       Judge Browning, who wrote in dissent in Shaar, went to
great lengths to expose the flaws of the BIA’s interpretation.
See Shaar, 141 F.3d at 959-64 (Browning, J., dissenting). The
dissent charged:

       [The majority’s] interpretation ignores Congress’
       intent that aliens be permitted to file, and the
       Immigration and Naturalization Service . . . be
       required to hear, a single, timely-filed,
       meritorious motion to reopen; it treats similarly
       situated aliens in a disparate manner, and forces
       aliens to forgo congressionally-authorized relief
       or face a substantial penalty.        It is both

                              -11-
       unreasonable and arbitrary.

Id. at 959.     The interpretation was unreasonable, Judge
Browning argued, because it “rests on the premise that Congress
intended to allow aliens to file certain motions to reopen, but to
preclude immigration judges from hearing them.” Id. (citing 8
U.S.C. § 1229a(c)(6); 8 C.F.R. § 3.2 (authorizing aliens to file
motions to reopen)). It was arbitrary because it “assumes
Congress intended that an alien’s opportunity to obtain relief
depend not on the merits of the alien’s application, but on
whether a randomly assigned tribunal happens to act on the
motion within the alien’s period of voluntary departure.” Id. at
960.

       The dissenting opinion noted another respect in which the
majority’s interpretation was arbitrary: the disparate treatment
of appeals and motions to reopen. The BIA has preserved an
alien’s right to pursue a meritorious appeal without sacrificing
the benefits of voluntary departure. See M atter of Chouliaris,
16 I. & N. Dec. 168, 170 (BIA 1977) (holding that an appeal
from an immigration judge’s decision tolls the voluntary
departure period). “Yet the majority presents aliens with an
even starker dilemma: Leave at the end of the voluntary
departure period and thereby forfeit the right to suspension of
deportation granted by Congress, or remain, forgo a hearing on
the merits, and be precluded from relief for five years.” Shaar,
141 F.3d at 960 (Browning, J., dissenting).8 According to Judge


       8
        Judge Browning also noted that “[t]he irrationality of
allowing motions to reopen to be filed but not heard, and of

                              -12-
Browning, such disparate treatment lacks sufficient justification,
especially in light of the shared “critical similarity – Congress
has authorized both.” Id.

                               IV.

        We find the reasoning in the Shaar dissent persuasive.
We thus hold that the failure of the immigration authorities to
act on a legitimate application for relief filed within the
voluntary departure period is an exceptional circumstance
“beyond the control of the alien.” 8 U.S.C. § 1252b(f)(2); see
Shaar, 141 F.3d at 964 (Browning, J., dissenting). The loss of
a legitimate claim for relief from deportation, based solely on


conditioning the grant or denial of relief on reasons unrelated to
the merits also raises serious questions of due process and the
equal protection of the laws.” Id. at 961. These questions are
troubling indeed, and lend further support to the conclusion that
the BIA’s interpretation in Matter of Shaar was unreasonable.
See Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even
aliens whose presence in this country is unlawful, have long
been recognized as ‘persons’ guaranteed due process of law by
the Fifth and Fourteenth Amendments.”); Reno v. Flores, 507
U.S. 292, 306 (1993) (“Of course, the INS regulation must still
meet the (unexacting) standard of rationally advancing some
legitimate governmental purpose . . .”); see also Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J.,
concurring, but in a context different from immigration) (“We
are confronted here with a statute which, if interpreted literally,
produces an absurd, and perhaps unconstitutional, result.”).

                               -13-
the INS’s failure to act within the period in question, is, in our
view, sufficiently compelling to invoke the exception provided
in section 1252b(e)(2)(A). In so holding, we reject the
reasoning of the Ninth Circuit in Shaar v. INS,9 which affirmed
Matter of Shaar as a permissible construction of section
1252b(e)(2)(A). 10

      We are satisfied that the critical date in this case is the
date a motion to reopen is filed rather than the date it is
adjudicated by the immigration authorities. Interpreting
“exceptional circumstances,” as we do, to include the loss of a


       9
          See also Stewart v. U.S. INS, 181 F.3d 587, 596 (4th
Cir. 1999) (finding that filing of motion to reopen failed to
constitute “exceptional circumstances”– based on “the
persuasive reasoning” of Shaar); Rojas-Reynoso v. INS, 235
F.3d 26, 30 n.3 (1st Cir. 2000) (citing Shaar and Stewart and
concluding that the “mere filing of a motion to reopen
deportation proceedings does not itself constitute ‘exceptional
circumstances’”). Inasmuch as both the First and Fourth
Circuits have found the Ninth Circuit’s reasoning in Shaar
persuasive, we likewise express our disagreement with those
respective decisions.
       10
         The Government contends this Court recently cited to
Matter of Shaar with approval in Bhiski v. Ashcroft, 373 F.3d
363, 372 n.6 (3d Cir. 2004). While it is true that we have cited
to Matter of Shaar as an example of a procedural bar justifying
the BIA’s denial of a motion to remand, we have never
expressly adopted its holding. We refuse to do so here.

                              -14-
legitimate claim for relief from deportation based on no fault of
the alien and on no intent to delay deportation is consistent with
that understanding. Moreover, such an interpretation, as Judge
Browning properly noted, would be “consistent with Congress’
intent to allow aliens with valid claims to reopen their
deportation proceedings, and would avoid the absurd, arbitrary,
and likely unconstitutional results that will follow from the
interpretation adopted by [the Ninth Circuit in Shaar v. INS].” 11
Shaar, 141 F.3d at 964 (Browning, J., dissenting).

                               V.

       Our holding finds further support in a very recent
decision from the Ninth Circuit, which revisited the same
problem addressed in Shaar, albeit in the context of a different


       11
          As this Court has observed, “a blind adherence to the
literal meaning of a statute [could] lead to a patently absurd
result that no rational legislature could have intended.
Following the letter, rather than the spirit, of the law in such
cases would go against the court’s role of construing statutes to
effectuate the legislature’s intent.” Fogleman v. Mercy Hosp.,
Inc., 283 F.3d 561, 569 (3d Cir. 2002) (citing United States v.
Schneider, 14 F.3d 876, 880 (3d Cir. 1994) (“It is the obligation
of the court to construe a statute to avoid absurd results, if
alternative interpretations are available and consistent with the
legislative purpose.”)). Because we adopt a broad interpretation
of “exceptional circumstances,” we depart from the holding
reached by the majority in Shaar with which Judge Browning
expressed disagreement.

                              -15-
statutory scheme. In Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.
2005), the Ninth Circuit was dealing with the post-IIRIRA
voluntary departure provision, 8 U.S.C. § 1229c(d), whereas
here we deal with the pre-IIRIRA voluntary departure provision,
8 U.S.C. § 1252b(e)(2)(A). Although our holding must be
limited to the pre-IIRIRA statutory scheme, and thus we express
no opinion with respect to the post-IIRIRA provisions, we
believe that the Azarte rationale is fully applicable here.

          In Azarte, the Ninth Circuit, interpreting the post-IIRIRA
voluntary departure provision, held “that in cases in which a
motion to reopen is filed within the voluntary departure period
. . . the voluntary departure period is tolled during the period the
BIA is considering the motion.” 394 F.3d at 1289. In reaching
that holding, the court refused to apply Shaar, which concerned
the pre-IIRIRA statute, 8 U.S.C. § 1252b(e)(2)(A) (repealed
1996), to post-IIRIRA cases, stating that certain changes in both
the statute and practice compelled a new interpretation. Id. at
1286-87.

       Prior to the IIRIRA, the court noted, there was no
statutory authorization for motions to reopen. With the
enactment of the IIRIRA in 1996, motions to reopen were
transformed from a regulatory to a statutory form of relief. Id.
(citing 8 U.S.C. §1229a(c)(6)(A) (1996)). Quoting Judge
Browning’s dissent in Shaar, the court found it “absurd to
conclude that Congress ‘intended to allow motions to reopen to
be filed but not heard.’” Id. (citing Shaar, 141 F.3d at 960
(Browning, J., dissenting)).

       We agree that it is contrary to congressional intent to

                               -16-
allow aliens to file motions to reopen but afford them no
reasonable opportunity to receive a ruling on the merits. The
Ninth Circuit reached this conclusion only after the
promulgation of the relevant statutory changes in the IIRIRA,
focusing on a possible statutory conflict between the voluntary
departure and motion to reopen provisions.

       Contrary to Azarte, which was concerned primarily with
the post-IIRIRA statutes,12 we believe, as we have stated, that
the Azarte result should obtain in the pre-IIRIRA context as well.
This is because both statutory schemes implicate a deeper
juridical problem, which results from placing greater emphasis
on the date of adjudication rather than on the date of filing.

       We thus conclude that the proper construction of the pre-
IIRIRA voluntary departure provision requires that aliens be
afforded a reasonable opportunity to receive a ruling on the
merits of a timely-filed motion to reopen.13


       12
            See Azarte, 394 F.3d at 1286-87.
       13
          As a final matter, we note that the new voluntary
departure provision does not contain an “exceptional
circumstances” exception. See 8 U.S.C. § 1229c(d). In Azarte,
the Ninth Circuit thus construed § 1229c(d) so as to toll the
voluntary departure period during the period the BIA is
considering a timely-filed motion to reconsider. While we could
have taken this same approach in interpreting the pre-IIRIRA
voluntary departure provision, we believe that our broad
construction of the “exceptional circumstances” exception is

                               -17-
                               VI.

       Accordingly, we will GRANT the Petition for Review of
the BIA’s decision, and remand this matter to the BIA for
further proceedings consistent with this opinion.




more principled given the present circumstances. We recognize,
however, that either construction would effectuate our position
that the critical date here is the date of filing, not the date of
adjudication.

                              -18-
