                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-24-2003

Barker v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3927




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                                                                  NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 02-3927
                                     ____________

                                  SANDRA BARKER,

                                             Petitioner

                                             v.

                           John Ashcroft, Attorney General of
                                   the United States,
                                            Respondent
                                     ____________

        On Petition for Review of an Order of the Board of Immigration Appeals
                                INS No. A28-913-939
                                    ____________

            Submitted Under Third Circuit LAR 34.1(a) December 16, 2003

                 Before: ROTH, M cKEE, and ROSENN, Circuit Judges

                               (Filed December 24, 2003 )
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       The petitioner-appellant, Sandra Barker, appeals from a final order by the Board

of Immigration Appeals (“Board”) denying her motion to reopen her deportation

proceedings. The Board denied Barker’s motion to reopen its decision, dismissing her

appeal from an immigration court’s order of deportation, because of her failure to depart

voluntarily from this country as ordered. We affirm.

                                            I.

       Barker, a native and citizen of Jamaica, entered the United States on January 1,
1989, with a fiancé visa, with permission to remain in this country until April 14, 1989.

She did not marry her fiancé and remained in the United States longer than permitted. On

June 26, 1996, the Immigration and Naturalization Service (INS), the predecessor to the

Bureau of Citizenship and Immigration Services, commenced deportation proceedings

against her with the filing of an Order to Show Cause why she should not be deported.

          Barker appeared before an immigration judge (IJ) in September 1996. She

admitted the allegations contained in the Order to Show Cause. Based on the admissions,

the IJ found her deportable as charged. She requested relief and protection from

deportation in the form of political asylum, withholding of deportation, and suspension of

deportation. In the alternative, she sought the privilege of voluntary departure.

          Barker offered testimony and documentary evidence in support of her applications

for relief and protection from deportation. She sought asylum and withholding of

deportation based on her claim of having been persecuted, and having a fear of

persecution, in Jamaica on account of her political opinion and her family’s alleged

involvement with the Jamaica National Party. She sought suspension of deportation

based on a claim of extreme hardship if deported from the United States.

          Upon a hearing, the IJ denied Barker’s application for asylum in all of its aspects.

The IJ, however, granted Barker’s alternative request for voluntary departure until

October 4, 1997. In granting voluntary departure, the immigration judge informed Barker

orally:

          I have granted you voluntary departure for a period of six months. If you do not
          appeal your case, or if you appeal your case and lose, then you will have to leave
          the United States. Okay. It may be possible to get more time beyond October 4th,
          but you would have to ask the Immigration Service for that not me, I have no
          authority to extend that time. . . . If you remain beyond the departure date without
          a very good excuse, for example, if you get seriously sick or injured, then there
          will be penalties, you’ll be ordered deported back to Jamaica and you’ll also lose
          the right to apply for certain kinds of important immigration benefits for a period

                                               2
         of five years. I’m giving you forms in English and in Spanish, that describes
         those penalties and I’m also giving you a copy of the order that I’m entering today
         denying the asylum and withholding, and suspension and granting you voluntary
         departure for six months. Ms. Barker, do you have any questions?

         As noted by the IJ, he provided Barker with written notice of the limitations on

discretionary relief if she failed to depart voluntarily by October 4, 1997.

         Written notice was provided to Barker in English and Spanish and that “[o]ral

notice of the contents of this notice was given to the alien in his/her native language, or in

a language he/she understands.”

         Barker appealed the IJ’s decision to the Board. The Board dismissed the appeal

on October 29, 2001. The Board’s dismissal decision, however, “permitted [Barker] to

depart from the United States voluntarily within 30 days from the [date of the Board’s

decision] or any extension beyond that time as may be granted by the district director; and

in the event of failure so to depart, [Barker] shall be deported as provided in the

Immigration Judge’s order.” 1

         Barker did not depart but filed a motion to reopen her deportation proceedings

with the Board. The motion requested reconsideration of her eligibility for suspension of

deportation in light of new evidence unavailable at the time of the IJ’s decision. Barker

acknowledged in the motion that her “previous period of voluntary departure has

expired.” The motion, therefore, alternatively requested that “the Board extend her

voluntary departure until a day 30 days following adjudication of the instant Motion,

including any judicial review thereof.” Barker subsequently supplemented her motion,

indicating that she would be seeking to adjust her immigration statute based on her recent

marriage to a United States citizen. The motion, as supplemented, did not indicate that



   1
       Barker never sought a judicial review of the Board’s dismissal decision.
                                              3
she had not received oral and written notice of the consequences for failing to voluntarily

depart. Nor did she explain why she remained in the United States beyond her voluntary

departure period.

        The Board denied Barker’s motion to reopen on two grounds. First, the Board

concluded that the motion was filed untimely. Second, the Board concluded that Barker

was statutorily barred, under § 240B(d) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229c(d), from applying for certain forms of discretionary relief, absent a showing of

exceptional circumstances for failing to depart voluntarily. Specifically, the Board noted,

contrary to Barker’s assertion, that she may otherwise qualify for an adjustment of status

“[was] not sufficient to establish 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.” (Brackets omitted.) The Board noted that

Barker had received both oral and written notice of the consequences of failure to depart

voluntarily and she had failed to depart voluntarily as ordered. The Board therefore

concluded that Barker was statutorily barred from applying for suspension of deportation

and adjustment of status. This appeal followed.

                                              II.

        This Court has appellate jurisdiction to review the Board’s denial of a motion to

reopen. Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir. 2002). This Court reviews the

Board’s denial of a motion to reopen on grounds of failure to make out a prima facie case

for abuse of discretion, and the Board’s findings of fact for substantial evidence. Id. at

173. Under the abuse of discretionary standard, the Board’s decision is reversible only if

it is “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994). In reviewing the Board’s findings of fact under the substantial evidence standard,


                                              4
this Court’s scope of review is narrow. Sevoian, at 171. An alien seeking judicial

reversal of findings of facts by the Board must show that the evidence was “so

compelling that the no reasonable factfinder could fail to find” in her favor. Elias-

Zacarias v. INS, 502 U.S. 478, 483-84 (1992).

        The Supreme Court has identified three independent grounds for the denial of a

motion to reopen immigration proceedings: (1) the movant’s failure to establish a prima

facie case for the relief sought; (2) the movant’s failure to introduce previously available,

material evidence that justifies reopening; or (3) a determination that even if the above

two requirements were met, the movant would not be entitled to the discretionary grant of

relief sought. INS v. Abudu, 485 U.S. 94, 105 (1988); Sevoian, at 169-70. “Motions for

reopening of immigration proceedings are disfavored. . . . This is especially true in a

deportation proceeding, where, as a general matter, every delay works to the disadvantage

of the deportable alien who wishes merely to remain in the United States.” INS v.

Doherty, 502 U.S. 314, 323 (1992).

                                              A.

        On appeal, Barker argues first that the Board erred in denying her motion to

reopen because the IJ failed to provide her with proper notice of the consequences for

failing to depart voluntarily. 2 Specifically, she argues that the IJ failed to provide the

requisite oral notice to her of each of the consequences of failing to depart voluntarily,

specifically the consequences of losing the benefits of suspension of deportation or




   2
    Barker also argues on appeal that her motion to reopen was timely filed. The
   respondent-appellee, John D. Ashcroft, Attorney General of the United States,
   agrees with her argument in this regard, conceding that the Board erred in
   concluding that Barker’s motion to reopen was untimely filed.

                                               5
adjustment of status.3 She argues that the IJ’s general warning that she would “lose the

right to apply for certain kinds of important immigration benefits for a period of five

years” is insufficient. In addition, she argues that the IJ’s oral warning of a failure to

depart voluntarily “without a very good excuse, for example, if you get seriously sick or

injured” is insufficient explanation of the statutory requirement of “exceptional

circumstances” because the judge’s words were “vague.” Barker argues next that the

Board erred in holding that she was ineligible for filing a motion to reopen.

                                              B.

         Contrary to Barker’s second argument, the Board never held in its decision

denying her motion to reopen that she was ineligible for filing a motion to reopen. The

Board’s decision was based on her statutory ineligibility to apply for suspension of

deportation or adjustment of status, absent a showing of “exceptional circumstances,” for

her failure to depart voluntarily as ordered. The Board concluded that she showed no

statutorily defined “exceptional circumstances.” Barker has not disputed this conclusion


   3
       Section 242B(e)(2), 8 U.S.C. § 1252b(e)(2) (1994) provides:

            (A) In General
            Subject to subparagraph (B), any 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.
            (B) Written and oral notice required
            Subparagraph (A) shall not apply to an alien allowed to depart voluntarily
            unless, before such departure, the Attorney General has provided written
            notice to the alien in English and Spanish and oral notice either in the
            alien's native language or in another language the alien understands of the
            consequences under subparagraph (A) of the alien's remaining in the United
            States after the scheduled date of departure, other than because of
            exceptional circumstances.

                                               6
on appeal. Barker’s extensive second argument is, therefore, misguided.4

        As correctly noted by the appellee, Barker failed to raise in her previous motion to

reopen that she did not receive adequate or sufficient oral notice of the consequences of

failing to depart voluntarily. Her failure to raise this issue before the Board bars this

Court’s consideration of this claim now. Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.

1989) (citing Campos-Guardado v. INS, 809 F.2d 285, 291 (5th Cir.), cert. denied, 484

U.S. 826 (1987); Florez-De Solis v. INS, 796 F.2d 330, 335 (9th Cir. 1986). This Court

will not, therefore, review Barker’s first argument; it was not raised before the Board.5

                                             III.

        In conclusion, we emphasize that what bars the reopening of Barker’s deportation

proceedings is her unexcused failure to comply with the Order of Voluntary Departure. It

was granted to her as a privilege in response to her request. “A grant of voluntary

departure allows a deportable alien to leave the country without suffering the

consequences of a formal deportation order. A deported alien is excludable from the

country for five years, 8 U.S.C. § 1182(a)(17) (1982), and commits a felony if he or she

ever returns without permission. 8 U.S.C. §§ 1252(f), 1326 (1982).” Cunanan v. INS,

856 F.2d 1373, 1374 n.1 (9th Cir. 1988). Unfortunately, Barker did not avail herself of

the privilege of voluntary departure. The penalty for her unexcused failure may appear to

be harsh in view of her recent marriage, but this Court notes that her failure to depart



   4
     Because Barker misinterprets the basis of the Board’s denial of her motion to
   reopen, this Court will not consider another argument of hers on appeal that the
   Board’s construction of §§ 242B(e)(2(A) of the Immigration and Nationality Act
   violates the Equal Protection Clause of the United States Constitution, which is
   based on such misinterpretation.
   5
     We note here, however, that Barker’s first argument has no merit because the
   record clearly shows that the IJ provided both adequate oral and written notice as
   statutorily required.
                                              7
voluntarily has also caused INS to “[become] involved in further and more costly

procedures” by expending additional resources in removing her that could have been

avoided had she complied with the original order requested by herself. See Zazueta-

Carrillo v. Ashcroft, 322 F.3d 1166, 1173 (9th Cir. 2003) (quoting Ballenilla-Gonzalez v.

INS, 546 F.2d 515, 521 (2d Cir.1976)). We do not have the discretionary power to lift the

statutory bar against reopening her deportation proceedings because of her failure to abide

by the Order of Voluntary Departure. See Fiallo v. Bell, 430 U.S. 787, 792 (1977)

(immigration legislation is “subject only to narrow judicial review”); United States v.

Pollard, 326 F.3d 397, 405-406 (3d Cir. 2003).

       Accordingly, the Board’s decision of denying Barker’s motion to reopen her

deportation proceedings will be affirmed. Costs taxed against the appellant.




                                             8
TO THE CLERK:

Please file the foregoing opinion.


                                     /s/, Max Rosenn, Circuit Judge




                                     9
