Demetrio Reynoso-Lopez v. JOHN ASHCROFT, Attorney General of the United States of America

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 02-3278
___________
DEMETRIO REYNOSO-LOPEZ,
Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States of America,
Respondent
____________
On Petition for Review of an Order of
the Board of Immigration Appeals
(INS No. A73-115-357)
____________
Submitted Under Third Circuit LAR
34.1(a) June 2, 2003
Before: BARRY, FUENTES, and
ROSENN, Circuit Judges.
(Filed: May 25, 2004)
Michael Morrone, Esq.
899 South College Mall Road
Suite 252
Bloomington, IN 27201
Counsel for Petitioner
John D. Williams, Esq.
Michael P. Lindemann, Esq.
Jocelyn L. Wright, Esq.
Erica A. Franklin, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION OF THE COURT
___________
FUENTES, Circuit Judge.
The principal issue presented by
this appeal is whether this Court has the
authority to reinstate a grant of voluntary
departure and extend the departure date
previously ordered by an Immigration
Judge (“IJ”) and affirmed by the Board of
Immigration Appeals (“BIA”). In this
case, the petitioner, Demetrio Reynoso-
Lopez (hereinafter “Reynoso”), seeks
review of the BIA’s decision affirming the
IJ’s denial of his application for asylum
and withholding of removal under the
Immigration and Nationality Act (“INA”),
8 U.S.C. §§ 1158(a) and 1253(h), and
protection under the Convention Against
Torture (“CAT”). In the alternative,
Reynoso asks us to reinstate the now
expired thirty-day voluntary departure
order granted to him by the IJ and
reinstated by the BIA under 8 U.S.C. §
1229c(b)(1).

-- 1 of 10 --

2
According to Reynoso, he failed to
depart voluntarily because he wanted to
stay in this country to appeal the BIA’s
decision of his request for asylum. He
contends that, as a matter of due process,
we have jurisdiction to reinstate the
expired voluntary departure date in the
event that we affirm the BIA’s denial of
his asylum claim. We disagree. Based on
the plain language of the immigration
statutes and regulations, which clearly
grant the power to reinstate or extend
voluntary departure solely to the Attorney
General and his delegates at the
Immigration and Naturalization Service
(“INS”), we conclude that we lack the
jurisdictional authority to reinstate or
extend a voluntary departure order.
I.
Reynoso is a twenty-seven year old
native of Guatemala. He claims that when
he was ten years old, he was held in
confinement by Guatemalan guerrillas. He
claims to have escaped to Mexico, where
he lived for the next six years. In 1993, at
the age of sixteen, Reynoso entered the
United States without a visa.1 On March
19, 1994, he applied for asylum,
withholding of removal, and protection
under the CAT. In the alternative, he
requested voluntary departure. On
October 19, 1998, the INS charged him
with being removable for entering the
United States without having been
admitted or paroled.
In removal proceedings on January
28, 1999, Reynoso conceded removability
and requested reconsideration of his
previous petition for asylum. On January
20, 2000, the IJ denied all relief, but
granted Reynoso voluntary departure until
March 6, 2000. On July 23, 2002, the BIA
affirmed the IJ without opinion. The BIA
also granted Reynoso voluntary departure
within thirty days of the date of its order.
Reynoso now appeals the decision
of the BIA. He raises two primary issues
on appeal: (1) whether the BIA erred in
affirming the IJ’s denial of his petition for
asylum; and (2) whether this Court has the
jurisdictional authority to reinstate an
expired grant of voluntary departure.
We review the IJ’s decision to grant
or deny asylum for abuse of discretion.
8 U.S.C. § 1252(f)(4)(D). Thus, our
review of the IJ’s factual findings, which
were adopted by the BIA, is deferential.
Factual findings, such as credibility
determinations, are “conclusive unless any
reasonable adjudicator would be
compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). We must
establish whether the BIA’s factual
determinations are supported by
substantial evidence. See Senathirajah v.
INS, 157 F.3d 210, 216 (3d Cir. 1998).
This standard is “even more deferential”
than the “clearly erroneous” standard, and
requires us to sustain an adverse credibility
determination “unless . . . no reasonable
person” would have found the applicant
incredible. See Concrete Pipe & Products
1 Although the briefs describe him as
a twenty-three year old (Pet. Br. at 2), if he
was sixteen years old in 1993, he is
approximately twenty-seven years old now.

-- 2 of 10 --

3
of CA v. Construction Laborers Pension
Trust for Southern CA, 508 U.S. 602, 623
(1993). “Adverse credibility findings are
afforded substantial deference so long as
the findings are supported by specific
cogent reasons.” Gao v. Ashcroft, 299
F.3d 266, 276 (3d Cir. 2002) (citation
omitted).
II.
In regard to Reynoso’s appeal from
the denial of his application for asylum,
the IJ, after assessing Reynoso’s
credibility, determined that Reynoso
“failed to establish a well-founded fear of
persecution as is necessary in order to be
statutorily eligible for asylum.” Because
Reynoso failed to establish eligibility for
asylum, he necessarily failed to meet the
more stringent standard for showing a
“clear probability of persecution” to be
eligible for withholding of deportation.
INS v. Stevic, 467 U.S. 407, 420 n.13
(1984). Similarly, based on the
respondent’s testimony and the evidence
of the record, he did not offer sufficient
evidence for withholding of removal under
the CAT. We have carefully reviewed the
entire record and find no basis for
disturbing the IJ’s thorough and well-
reasoned oral opinion. We add only the
following to underscore our agreement
with that decision.
At the hearing before the IJ,
Reynoso testified that, at the age of 10, he
and his family were captured by a band of
guerillas in Guatemala and taken from
their home town of Quilco to the guerillas’
encampment. He testified that about two
weeks after his capture, the family, which
apparently included both parents and two
sisters, escaped the encampment. In the
process, Reynoso became separated from
his family and managed to walk for three
days to Chiapas, Mexico, where he stayed
and worked for three years. Thereafter,
Reynoso moved to Mexico City, where he
lived for another three years, working in a
restaurant. At the age of 16, Reynoso left
Mexico City and crossed into the United
States.
Reynoso’s parents, with whom he is
in regular contact, now live in Cumil,
Guatemala, a town approximately five
hours from Quilco on foot. None of them
knows the whereabouts of his younger
sisters. Although formal resistance to the
Guatemalan government has ended,
Reynoso stated that he believes former
guerillas are still active in Guatemala. He
testified that, if he returned, he feared
persecution by these guerillas for failing to
join their resistance in 1987. The basis for
this assertion was a list that he claimed the
guerillas have kept which contains names
of people whom they plan to target for
retribution. He believed that both he and
his father were on this list. He also stated
that he had acquaintances who, after
returning to Guatemala in 1997, were
killed by former guerillas seeking revenge.
In addition, Reynoso testified that his
parents’ crops had been destroyed,
ostensibly by former guerillas.
In arriving at an adverse credibility
finding, the IJ pointed to several
deficiencies in Reynoso’s testimony.

-- 3 of 10 --

4
Specifically, the IJ found questionable
Reynoso’s testimony relating to (1) a “list”
that the guerillas created in 1987; (2) his
belief that guerillas are still active in
Guatemala; (3) the guerillas’ capture of the
entire family, including his two younger
sisters; and (4) his escape at the age of 10
and subsequent journey through Mexico
and into the United States.
The IJ found this testimony
incredible for several reasons. First, he
doubted that Reynoso could have escaped
the guerilla camp by himself on foot and
then supported himself in Mexico from
ages ten to sixteen. Second, he did not
find that Reynoso’s account provided a
plausible basis for fearing a threat by
former guerillas. Third, he took judicial
notice of changed country conditions in
Guatemala, finding that the guerillas had
disbanded. Therefore, the IJ held that
Reynoso had failed to show either past
persecution or a well-founded fear of
future persecution, as is required to
establish statutory eligibility for asylum.
Moreover, the IJ found that any harm
Reynoso suffered was not “on account of”
any of the five grounds enumerated by the
INA (i.e., race, religion, nationality,
membership in a particular social group, or
political opinion). Instead, the guerillas
mistreated his family in an attempt to
recruit the family to join their rebellion.
The IJ analyzed each of
these areas of Reynoso’s testimony and
supplied specific reasons for his adverse
credibility findings. In particular, the IJ
found that Reynoso’s testimony was
exaggerated, embellished, and not
particularly believable. The IJ accordingly
concluded that Reynoso had not met his
burden to establish a well-founded fear of
persecution if returned to Guatemala.
We find no abuse of discretion in
any of the IJ’s credibility determinations.
We accordingly conclude that substantial
evidence supports the IJ’s determination
that Reynoso failed to support his asylum,
withholding of deportation and CAT
claims with credible evidence.
III.
A.
We now turn to the question of
whether we can reinstate Reynoso’s
voluntary departure date. Under certain
circumstances, the Attorney General will
grant an alien voluntary departure as an
alternative to deportation. This allows the
alien to depart the United States at his or
her own expense without being subject to
the penalties and restrictions that
deportation imposes. An alien who is
deported may not reenter the United States
for ten years unless the Attorney General
permits it. However, an alien who departs
voluntarily is not bound by this restriction
and may reenter the United States once he
or she has obtained proper documentation.
See Ramsay v. INS, 14 F.3d 206, 211 n.7
(4th Cir. 1994). As an alternative to
granting his petition for asylum, Reynoso
requests that we extend the thirty-day
voluntary departure order granted him by
the IJ and reinstated by the BIA. Before
his voluntary departure period had expired,
Reynoso timely appealed to this Court.
However, his departure period ended

-- 4 of 10 --

5
before appellate review of his asylum
application was completed.
Reynoso’s request raises an issue of
first impression in our Circuit: whether we
have the authority to extend a voluntary
departure order pending our review of a
denial of a request for asylum. Several
other courts of appeals have considered
this question and are divided as to whether
this authority exists under the current INS
regulations. These regulations state that
the “[a]uthority to extend the time within
which to depart voluntarily specified
initially by an immigration judge or the
Board is only within the jurisdiction of the
district director, the Deputy Executive
Associate Commissioner for Detention and
Removal, or the Director of the Office of
Juvenile Affairs. . . .” 8 C.F.R. §
1240.26(f). The Government argues that
we do not have jurisdiction to extend the
voluntary departure period because the
language of the regulation makes clear that
the power to grant, extend or reinstate
voluntary departure is within the sole
authority of the Attorney General and his
delegates at the INS and Executive Office
f o r I m m igration Rev iew, w hic h
encompasses the IJs and the BIA. Resp.
Br. at 28-30. Reynoso counters that due
process requires that this Court have the
power to extend voluntary departure, or
else his decision to appeal the BIA’s denial
of his asylum application will have caused
him to lose “the privilege of voluntary
departure.” Pet. Br. at 16 (quoting Matter
of Villeagas-Aguirre, 13 I. & N. Dec. 139
(BIA 1969)). We hold that because
Congress has not provided statutory
authority for appellate courts to reinstate or
extend the voluntary departure period
prescribed by an IJ or the BIA, this Court
lacks jurisdiction to reinstate Reynoso’s
voluntary departure period.
B.
In 1996, Congress passed the Illegal
Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”). Under the
plain language of the INA, as amended by
IIRIRA, the authority to reinstate or extend
voluntary departure falls solely within the
discretion of the Attorney General and his
delegates at the INS. These delegates,
including the IJ and BIA, granted Reynoso
a thirty-day voluntary departure period.
Any extension of this time period would
clearly conflict with the explicit language
of IIRIRA, which provides that only the
district director may determine the time
period for voluntary departure.
The Immigration Regulations, as
amended by IIRIRA, state:
Authority to extend the time within which
to depart voluntarily specified initially by
an immigration judge or the Board is only
within the jurisdiction of the district
director, the Deputy Executive Associate
Commissioner for Detention and Removal,
or the Director of the Office of Juvenile
Affairs. An immigration judge or the
Board may reinstate voluntary departure in
a removal proceeding that has been
reopened for a purpose other than solely
making an application for voluntary
departure if reopening was granted prior to

-- 5 of 10 --

6
the expiration of the original period of
voluntary departure.
8 C.F.R. § 1240.26(f) (emphasis added).
Therefore, under IIRIRA, the
executive branch, not the judiciary, is
given the sole authority to determine when
an alien must depart. Further, IIRIRA
specifically limits the role of the courts as
to when an alien, under an order of
voluntary departure, must leave the
country. Id. For example, under 8 U.S.C.
§ 1229c(f), “[n]o court shall have
jurisdiction over an appeal from denial of
a request for an order of voluntary
departure . . . , nor shall any court order a
stay of an alien’s removal pending
consideration of any claim with respect to
voluntary departure.” Additionally, “no
court shall have jurisdiction to review . . .
any judgment regarding the granting of
relief” under section 1229c. 8 U.S.C. §
1252(a)(2)(B)(i). Reynoso is not
appealing a denial of a request for
voluntary departure or a claim with respect
to voluntary departure. Thus, these
provisions do not divest this Court of
jurisdiction in this case. However, they do
underscore the fact that, in enacting
IIRIRA, Congress intended to vest the
right to set deadlines for an alien’s
voluntary departure solely with the
executive branch, and not the courts. See
Zazueta-Carrillo v. Ashcroft, 322 F.3d
1166, 1172 (9th Cir. 2003) (“Neither the
statute nor the regulations give courts any
designated role in this process of setting
the deadline for departure.”). In granting
the authority to set voluntary departure
dates to the executive branch, it is fair to
say that Congress intended the authority to
be exclusive.
Our inability to grant Reynoso the
relief he seeks does not leave him without
a remedy. Under IIRIRA, Reynoso may
apply for reinstatement or extension of
voluntary departure directly to the district
director. See 8 C.F.R. § 1244.2(f)(2);
Castaneda, 23 F.3d at 1582. Seeking relief
from the district director is, in fact, the
procedure that Congress intended for a
petitioner such as Reynoso to follow.
Indeed, in this case, the BIA informed
Reynoso that any extension of the
voluntary departure time period “may be
granted by the district director,” thus
putting him on notice that any relief from
the voluntary departure set by the BIA
would have to be granted administratively,
not judicially. BIA Order at 2. Further,
this statement by the BIA shows that the
BIA has interpreted the INA as giving the
district director sole authority to set and
extend voluntary departure periods. Even
if one were to argue that the statutory
language were unclear, we would still be
required to give deference to the BIA’s
interpretation of IIRIRA. Chevron U.S.A.,
Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984); see
also Zazueta-Carrillo, 322 F.3d at 1173
(same); see also Faddoul v. INS, 37 F.3d
185, 192, 191-93 (5th Cir. 1995) (stating
that there was “[n]o reason to augment the
administrative remedy which the alien had

-- 6 of 10 --

7
neglected,” and denying reinstatement of
voluntary departure because the petitioner
did not apply to the BIA or district director
for an extension and waited until the last
day of his departure period before filing
his appeal (citing Farzad v. INS, 808 F.2d
1071, 1072 (5th Cir. 1987))); Alsheweikh
v. INS 990 F.2d 1025, 1028 (8th Cir.
1993) (declining consideration of the
petitioner’s application for reinstatement
of voluntarily departure, and stating that
the petitioner “may request this relief from
the INS”).
Further, under IIRIRA, appellate
courts retain jurisdiction to review an
alien’s appeal after he voluntarily departs.
8 U.C.C. § 1252(b)(3)(B). This remedy
was not available in the pre-IIRIRA
regime because, under the former INA, an
appellate court lost jurisdiction once a
petitioner left the country. See 8 U.S.C. §
1105a(c) (1994). Thus, before IIRIRA, an
alien was forced to choose between
exercising his right to appeal and taking
advantage of voluntary departure. Because
IIRIRA eliminates this concern, Reynoso
was free to voluntarily depart and still
pursue a petition for review, preserving his
appellate rights. See Zazueta-Carrillo, 322
F.3d at 1171; Moore v. Ashcroft, 251 F.3d
919 (11th Cir. 2001); Tapia Garcia v. INS,
237 F.3d 1216 (10th Cir. 2001).
C.
A number of circuits addressing the
voluntary departure issue have similarly
found that they lack jurisdiction to extend
a voluntary departure order. In Nkacoang
v. INS, the Eleventh Circuit stressed the
fact that Congress has not empowered the
courts of appeals to reinstate voluntary
departure orders that have expired. 83
F.3d 353, 357 (11th Cir. 1996). The Court
held that absent explicit Congressional
empowerment to act, an appellate court
lacks the jurisdictional authority to extend
or reinstate voluntary departure. Similarly,
in Castaneda v. INS, the Tenth Circuit held
that it lacked the authority to review a
request for reinstatement of a voluntary
departure order, stating that “none of the
pertinent statutes . . . provide any basis
whatsoever for this court to assume
authority for affording the discretionary,
administrative relief sought by petitioner.”
23 F.3d 1576, 1580 (10th Cir. 1994). The
Tenth Circuit went on to reiterate that “[i]f
an act can be performed by a [federal]
court, it is because it was permitted and
not because it was not prohibited by
Congress. Federal courts operate only in
the presence rather than the absence of
statutory authority.” Id. at 1580 (internal
citation and quotations omitted).
In Kaczmarczyk v. INS, the
Seventh Circuit affirmed an order of
deportation and held that the Court lacked
jurisdiction to reinstate or extend voluntary
departure, thus requiring the alien to file a
motion with the INS district director
requesting reinstatement of voluntary
departure. 933 F.2d 588, 598 (7th Cir.
1991), cert. denied, 502 U.S. 981 (1991).
The Seventh Circuit did note its concern
that the INS might use its discretionary
authority to discourage petitioners from
seeking judicial review. The Court stated
that “[d]eportable aliens should not be

-- 7 of 10 --

8
faced with the choice between enjoying the
voluntary departure privilege and securing
judicial review of Board determinations;”
thus “[s]hould it come to our attention that
the INS is wielding its discretion to
withhold voluntary departure [in order] to
deter applicants from seeking review of
BIA decisions, our scrutiny of that
discretionary exercise might expand.” Id.
(citation omitted). However, as discussed
above, the passage of IIRIRA has
eliminated this concern as aliens may now
pursue their appeals from abroad, avoiding
their having to choose between exercising
their right to appeal and taking voluntary
departure.
The Ninth Circuit also addressed
this issue in Zazueta-Carrillo v. Ashcroft,
in which it overruled its previous decision
in Contreras-Aragon v. INS and held that,
in light of IIRIRA, appellate courts lack
authority to reinstate voluntary departure.
322 F.3d at 1172. In Contreras-Aragon v.
INS, the Ninth Circuit had held that when
an appeals court otherwise has jurisdiction
over a final order of deportation it may
reinstate a grant of voluntary departure
originally entered by the IJ and BIA. 852
F.2d 1088, 1092-93 (9th Cir. 1988). After
IIRIRA, however, the Ninth Circuit
reconsidered its decision in Contreras-
Aragon and concluded that a petitioner’s
voluntary departure period begins when an
IJ or the BIA enters its order granting
voluntary departure. See Zazueta-Carrillo,
322 F.3d at 1168. The Zazueta-Carrillo
Court examined the rationales on which
Contreras-Aragon relied, and concluded
that these rationales were no longer valid
in the context of IIRIRA. Examining the
relevant imm igratio n statutes and
regulations post-IIRIRA, the Ninth Circuit
held that appellate courts lack the authority
to extend the time period for voluntary
departure, and that aliens granted
voluntary departure must continue their
appeals from abroad. Id.
While other circuits have taken the
opposite stance, holding that they have
authority to reinstate voluntary departure,
these holdings predate IIRIRA. For
example, the Fourth Circuit in Ramsay v.
INS held that an appellate court should
extend voluntary departure when (1) it
finds that the INS has used its discretion to
withhold voluntary departure in order to
deter applicants from seeking judicial
review of BIA decisions; and (2) the INS
does not indicate that it will present the
district director with any other reason for
refusing reinstatement. 14 F.3d at 213
(internal quotation marks and citations
omitted). Similarly, in Umanzor-Alvarado
v. INS, the First Circuit held that it had the
authority to extend voluntary departure
when the INS offered no evidence
suggesting that the alien had become
ineligible for departure in the interim
between the BIA’s opinion and the
appellate court’s opinion. 896 F.2d 14, 16
(1st Cir. 1990); see also Aiyadurai v. INS,
683 F.2d 1195, 1201 (8th Cir. 1982)
(restoring voluntary departure status
despite the fact that this issue was not
raised on appeal, and noting that the
petitioner “qualified for voluntary status at
the . . . deportation hearing and there is no
indication in the record that she does not

-- 8 of 10 --

9
continue to qualify”).
The arguments presented by the
Fourth and First Circuits, in pre-IIRIRA
decisions, are unpersuasive in light of the
plain language of the INA, as amended by
IIRIRA. As discussed above, the Fourth
Circuit’s concern that the INS may use its
discretion over voluntary departure in
order to deter judicial review of BIA
decisions was eliminated by IIRIRA’s
provision that appellate courts retain
jurisdiction over an alien’s appeal after he
has departed the country.
In addition, both the Fourth and
First Circuits conclude that there is no
reason for an appellate court not to toll the
initial departure period granted by an IJ or
the BIA when the INS has offered no
evidence to suggest that the alien had
become ineligible for voluntary departure
during the course of the appeal. See
Ramsay v. INS, 14 F.3d at 213; Umanzor-
Alvarado v. INS, 896 F.2d at 16. This
approach, however, conflicts with the
specific procedures provided for in the
statute. Whether the relief sought by
Reynoso in this appeal is characterized as
a “reinstatement and extension” of the
voluntary departure period or as a
“tolling,” the effect is the same. See
Zazueta-Carrillo, 322 F.3d at 1176
(Berzon, J., concurring). The INA is clear
that this type of relief may only be sought
from the district director. Further, as the
Tenth Circuit points out, the approach of
the Ramsay and Umanzor-Alvarado Courts
misplaces the burden of persuasion in a
petition for extension of voluntary
departure, as the INS does not bear the
burden of showing an alien to be ineligible
for voluntary departure. On the contrary,
“it is the alien who bears the burden of
proving statutory eligibility for this form
of relief and demonstrating that it is
warranted.” Castaneda, 23 F.3d at 1582
(citing Rivera-Zurita v. INS, 946 F.2d 118,
120 (10th Cir. 1991) (internal quotations
omitted)).
Finally, the policy considerations
surrounding voluntary departure support
our conclusion that Congress did not
intend for appellate courts to have
authority to extend voluntary departure
orders. These considerations were stated
by the Ninth Circuit as follows:
The purpose of a uthorizing
voluntary departure in lieu of
deportation is to effect the alien’s
prompt departure without further
trouble to the Service. Both the
aliens and the Service benefit
thereby. But if the alien does not
depart promptly, so that the Service
becomes involved in further and
more costly procedures by his
attempts to continue his illegal stay
here, the original benefit to the
Service is lost. And if, after years
of delay, he is again rewarded with
the opportunity for voluntary
departure which he has previously
spurned, what incentive is there for
any alien similarly circumstanced to
depart promptly when first given
the opportunity?

-- 9 of 10 --

10
See Zazueta-Carrillo, 322 F.3d at 1173
(quoting Ballenilla-Gonzalez v. INS, 546
F.2d 515, 521 (2d Cir. 1976)). If voluntary
departure periods could be extended until
after the completion of an appeal, it would
discourage prompt departure and even
encourage frivolous appeals in an attempt
to continue extending an alien’s departure
date. Id. at 1173-74. This result would
conflict with the INS’ goal of having
expeditious removal proceedings. This
goal underlies voluntary departure, and is
reflected in the clear procedures for
extending voluntary departure set out by
Congress in IIRIRA.
IV.
The BIA’s order affirming the IJ’s
denial of Reynoso’s application for
asylum, withholding of removal, and
protection under the Convention Against
Torture is affirmed. Under the INA, we
lack jurisdiction to reinstate the IJ’s grant
of voluntary departure and to extend
Reynoso’s date for departure.

-- 10 of 10 --