                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-1-2004

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Precedential or Non-Precedential: Precedential

Docket No. 02-3927




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Recommended Citation
"Barker v. Atty Gen USA" (2004). 2004 Decisions. Paper 293.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/293


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                         PRECEDENTIAL                  ____________

IN THE UNITED STATES COURT OF                  OPINION OF THE COURT
            APPEALS                                 ____________
     FOR THE THIRD CIRCUIT
          ____________
                                         ROSENN, Circuit Judge.
             No. 02-3927                        The petitioner-appellant, Sandra
            ____________                 Barker, appeals from a final order by the
                                         Board of Immigration Appeals (“Board”)
         SANDRA BARKER,                  denying her motion to reopen her
                Petitioner               deportation proceedings.       The Board
                                         denied Barker’s motion to reopen its
                    v.                   decision, dismissing her appeal from an
                                         immigration court’s order of deportation,
   John Ashcroft, Attorney General of    because of her failure to depart voluntarily
           the United States,            from this country as ordered. We affirm.
                    Respondent
                                                              I.
             ____________
                                                Barker, a native and citizen of
 On Petition for Review of an Order of   Jamaica, entered the United States on
  the Board of Immigration Appeals       January 1, 1989, with a fiancée visa, with
        INS No. A23 913 939              permission to remain in this country until
            ____________                 April 14, 1989. She did not marry her
                                         fiancé and remained in the United States
  Submitted Under Third Circuit LAR      longer than permitted. On June 26, 1996,
     34.1(a) December 16, 2003           the Immigration and Naturalization
                                         Service (INS), the predecessor to the
Before: ROTH, McKEE, and ROSENN,         Bureau of Citizenship and Immigration
           Circuit Judges                Services, com men ced d epor tation
                                         proceedings against her with the filing of
            (Filed 12/24/03 )            an Order to Show Cause why she should
                                         not be deported.
Alan M. Strauss
                                                 Barker appeared before an
Law Office of Stanley H. Wallenstein
                                         immigration judge (IJ) in September 1996.
41-43 Beekman Street, 3rd Floor
                                         She admitted the allegations contained in
New York, NY 10038
                                         the Order to Show Cause. Based on the
                                         admissions, the IJ found her deportable as
       Counsel for Petitioner
                                         charged.      She requested relief and
                                         protection from deportation in the form of
David V. Bernal
                                         political a sylum, withholding of
William C. Minick
                                         deportation, and suspension of deportation.
Anthony C. Payne
                                         In the alternative, she sought the privilege
United States Department of Justice
                                         of voluntary departure.
Office of Immigration Litigation
P.O. Box 878 Ben Franklin Station               Barker offered testimony and
Washington, DC 20044                     documentary evidence in support of her
                                         applications for relief and protection from
       Counsel for Respondent            deportation. She sought asylum and
                                         withholding of deportation based on her
claim of having been persecuted, and                Barker with written notice of the
having a fear of persecution, in Jamaica on         limitations on discretionary relief if she
account of her political opinion and her            failed to depart voluntarily by October 4,
family’s alleged involvement with the               1997.
Jamaica National Party.        She sought
                                                           Written notice was provided to
suspension of deportation based on a claim
                                                    Barker in English and Spanish and that
of extreme hardship if deported from the
                                                    “[o]ral notice of the contents of this notice
United States.
                                                    was given to the alien in his/her native
        Upon a hearing, the IJ denied               language, or in a language he/she
Barker’s application for asylum in all of its       understands.”
aspects. The IJ, however, granted Barker’s
                                                            Barker appealed the IJ’s decision to
alternative request for voluntary departure
                                                    the Board. The Board dismissed the
until October 4, 1997.         In granting
                                                    appeal on October 29, 2001. The Board’s
voluntary departure, the immigration judge
                                                    dismissal decision, however, “permitted
informed Barker orally:
                                                    [Barker] to depart from the United States
        I have granted you voluntary                voluntarily within 30 days from the [date
        departure for a period of six               of the Board’s decision] or any extension
        months. If you do not appeal your           beyond that time as may be granted by the
        case, or if you appeal your case            district director; and in the event of failure
        and lose, then you will have to             so to depart, [Barker] shall be deported as
        leave the United States. Okay. It           provided in the Immigration Judge’s
        may be possible to get more time            order.” 1
        beyond October 4th, but you
                                                            Barker did not depart but filed a
        would have to ask the Immigration
                                                    motion to reopen h er deportation
        Service for that not me, I have no
                                                    proceedings with the Board. The motion
        authority to extend that time. . . .
                                                    requested reconsideration of her eligibility
        If you remain beyond the departure
                                                    for suspension of deportation in light of
        date without a very good excuse,
                                                    new evidence unavailable at the time of
        for example, if you get seriously
                                                    the IJ’s decision. Barker acknowledged in
        sick or injured, then there will be
                                                    the motion that her “previous period of
        penalties, you’ll be ordered
                                                    voluntary departure has expired.” The
        deported back to Jamaica and
                                                    motion, therefore, alternatively requested
        you’ll also lose the right to apply
                                                    that “the Board extend her voluntary
        for certain kinds of important
                                                    departure until a day 30 days following
        immigration benefits for a period
                                                    adjudication of the instant Motion,
        of five years. I’m giving you
                                                    including any judicial review thereof.”
        forms in English and in Spanish,
                                                    Barker subsequently supplemented her
        that describes those penalties and
                                                    motion, indicating that she would be
        I’m also giving you a copy of the
                                                    seeking to adjust her immigration statute
        order that I’m entering today
                                                    based on her recent marriage to a United
        d e n y in g t h e a s yl u m a n d
                                                    States citize n.       The motion, as
        withholding, and suspension and
                                                    supplemented, did not indicate that she had
        granting you voluntary departure
        for six months. Ms. Barker, do
        you have any questions?
                                                    1
        As noted by the IJ, he provided              Barker never sought a judicial review
                                                    of the Board’s dismissal decision.

                                                2
not received oral and written notice of the        Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
consequences for failing to voluntarily            1994). In reviewing the Board’s findings
depart. Nor did she explain why she                of fact under the substantial evidence
remained in the United States beyond her           standard, this Court’s scope of review is
voluntary departure period.                        narrow. Sevoian, at 171. An alien seeking
                                                   judicial reversal of findings of facts by the
        The Board denied Barker’s motion
                                                   Board must show that the evidence was
to reopen on two grounds. First, the Board
                                                   “so compelling that the no reasonable
concluded that the motion was filed
                                                   factfinder could fail to find” in her favor.
untimely. Second, the Board concluded
                                                   Elias-Zacarias v. INS, 502 U.S. 478, 483-
that Barker was statutorily barred, under §
                                                   84 (1992).
240B(d) of the Immigration and
Nationality Act, 8 U.S.C. § 1229c(d), from                 The Supreme Court has identified
applying for certain forms of discretionary        three independent grounds for the denial of
relief, absent a showing of exceptional            a motion to reop en im mig ration
circumstances for failing to depart                proceedings: (1) the movant’s failure to
voluntarily. Specifically, the Board noted,        establish a prima facie case for the relief
contrary to Barker’s assertion, that she           sought; (2) the movant’s failure to
may otherwise qualify for an adjustment of         introduce previously available, material
status “[was] not sufficient to establish          evidence that justifies reopening; or (3) a
exceptional circumstances,” “such as               determination that even if the above two
serious illness of the alien or death of an        requirements were met, the movant would
immediate relative of the alien, but not           not be entitled to the discretionary grant of
including less compelling circumstances            relief sought. INS v. Abudu, 485 U.S. 94,
beyond the control of the alien.” (Brackets        105 (1988); Sevoian, at 169-70. “Motions
omitted.) The Board noted that Barker had          for reopening of immigration proceedings
received both oral and written notice of the       are disfavored. . . . This is especially true
consequences of failure to depart                  in a deportation proceeding, where, as a
voluntarily and she had failed to depart           general matter, every delay works to the
voluntarily as ordered.        The Board           disadvantage of the deportable alien who
therefore concluded that Barker was                wishes merely to remain in the United
statutorily barred from applying for               States.” INS v. Doherty, 502 U.S. 314,
suspension of deportation and adjustment           323 (1992).
of status. This appeal followed.
                                                                        A.
                    II.
                                                           On appeal, Barker argues first that
        This Court has appellate                   the Board erred in denying her motion to
jurisdiction to review the Board’s denial of       reopen because the IJ failed to provide her
a motion to reopen. Sevoian v. Ashcroft,           with proper notice of the consequences for
290 F.3d 166, 169 (3d Cir. 2002). This             failing to depart voluntarily. 2 Specifically,
Court reviews the Board’s denial of a
motion to reopen on grounds of failure to          2
make out a prima facie case for abuse of             Barker also argues on appeal that her
discretion, and the Board’s findings of fact       motion to reopen was timely filed. The
for substantial evidence. Id. at 173. Under        respondent-appellee, John D. Ashcroft,
the abuse of discretionary standard, the           Attorney General of the United States,
Board’s decision is reversible only if it is       agrees with her argument in this regard,
“arbitrary, irrational, or contrary to law.”       conceding that the Board erred in
                                                   concluding that Barker’s motion to

                                               3
she argues that the IJ failed to provide the       voluntarily “without a very good excuse,
requisite oral notice to her of each of the        for example, if you get seriously sick or
consequences of failing to depart                  injured” is insufficient explanation of the
voluntarily, specifically the consequences         statutory requirement of “exceptional
of losing the benefits of suspension of            circumstances” because the judge’s words
deportation or adjustment of status.3 She          were “vague.” Barker argues next that the
argues that the IJ’s general warning that          Board erred in holding that she was
she would “lose the right to apply for             ineligible for filing a motion to reopen.
certain kinds of important immigration
                                                                       B.
benefits for a period of five years” is
insufficient. In addition, she argues that                 Contrary to Barker’s second
the IJ’s oral warning of a failure to depart       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
reopen was untimely filed.                         on her statutory ineligibility to apply for
3
 Section 242B(e)(2), 8 U.S.C. §                    suspension of deportation or adjustment of
1252b(e)(2) (1994) provides:                       status, absent a showing of “exceptional
                                                   circumstances,” for her failure to depart
(A) In General                                     voluntarily as ordered.        The Board
Subject to subparagraph (B), any alien             concluded that she showed no statutorily
allowed to depart voluntarily under                defined “exceptional circumstances.”
section 1254(e)(1) of this title or who has        Barker has not disputed this conclusion on
agreed to depart voluntarily at his own            appeal.     Barker’s extensive second
expense under section 1252(b)(1) of this           argument is, therefore, misguided.4
title who remains in the United States                    As correctly noted by the appellee,
after the scheduled date of departure,             Barker failed to raise in her previous
other than because of exceptional                  motion to reopen that she did not receive
circumstances, shall not be eligible for           adequate or sufficient oral notice of the
relief described in paragraph (5) for a            consequences of failing to depart
period of 5 years after the scheduled date         voluntarily. Her failure to raise this issue
of departure or the date of unlawful               before the Board bars this Court’s
reentry, respectively.                             consideration of this claim now. Alleyne
                                                   v. INS, 879 F.2d 1177, 1182 (3d Cir.
(B) Written and oral notice required               1989) (citing Campos-Guardado v. INS,
Subparagraph (A) shall not apply to an
alien allowed to depart voluntarily
unless, before such departure, the                 4
Attorney General has provided written                Because Barker misinterprets the basis
notice to the alien in English and Spanish         of the Board’s denial of her motion to
and oral notice either in the alien's native       reopen, this Court will not consider
language or in another language the alien          another argument of hers on appeal that
understands of the consequences under              the Board’s construction of §§
subparagraph (A) of the alien's remaining          242B(e)(2(A) of the Immigration and
in the United States after the scheduled           Nationality Act violates the Equal
date of departure, other than because of           Protection Clause of the United States
exceptional circumstances.                         Constitution, which is based on such
                                                   misinterpretation.

                                               4
809 F.2d 285, 291 (5th Cir.), cert. denied,        deportation proceedings because of her
484 U.S. 826 (1987); Florez-De Solis v.            failure to abide by the Order of Voluntary
INS, 796 F.2d 330, 335 (9th Cir. 1986).            Departure. See Fiallo v. Bell, 430 U.S.
This Court will not, therefore, review             787, 792 (1977) (immigration legislation is
Barker’s first argument; it was not raised         “subject only to narrow judicial review”);
before the Board.5                                 United States v. Pollard, 326 F.3d 397,
                                                   405-406 (3d Cir. 2003).
                    III.
                                                          Accordingly, the Board’s decision
         In conclusion, we emphasize that
                                                   of denying Barker’s motion to reopen her
what bars the reopening of Barker’s
                                                   deportation proceedings will be affirmed.
deportation proceedings is her unexcused
                                                   Costs taxed against the appellant.
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 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

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.

                                               5
