Chan Geum Jung v. JOHN ASHCROFT, Attorney General of the United States

* The Honorable Louis F. Oberdorfer, Senior District Judge for the District of
Columbia, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4469
CHAN GEUM JUNG,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
APPEALS
(No. A78 495 710)
Submitted Under Third Circuit LAR 34.1(a)
DECEMBER 4, 2003
Before: SLOVITER and ALITO, Circuit Judges, and OBERDORFER, District Judge*
(Opinion Filed: March 2, 2004)

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OPINION OF THE COURT
PER CURIAM:
I.
Chang Geum Jung (“Jung”) challenges a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of Jung’s motion to
reopen her removal proceedings. Though the procedural background of this petition is a
bit convoluted and Jung provides a detailed argument in support of her position, this is in
actuality a simple case. Jung failed to depart after she was granted voluntary departure,
and therefore the IJ properly denied Jung’s motion to reopen. Because we conclude that
Jung’s motion to reopen was properly denied, we deny Jung’s petition to review.
II.
We review the denial of motions to reopen deportation proceedings for abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323 (1992) (“The granting of a motion to
reopen is thus discretionary and the Attorney General has ‘broad discretion’ to grant or
deny such motions.”) (internal citations omitted); Lu v. Ashcroft, 259 F.3d 127, 131 (3d
Cir. 2001) (“Thus, we review the BIA’s decision to deny reopening for abuse of
discretion, mindful of the ‘broad’ deference that the Supreme Court would have us
afford.”).

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III.
Jung’s primary argument is that the BIA erred by affirming the IJ’s denial of her
motion to reopen her removal proceedings. Jung spends much of her brief arguing that
the IJ erred in denying her motion to reopen because she had a pending application for the
adjustment of her visa status. See Brief of Jung at 6. She states that the IJ’s denial of her
motion to reopen was based on the since-overruled holding of Matter of Arthur, 20 I&N
Dec. 475 (BIA 1992), in which the BIA denied a motion to reopen because a visa
application was still pending. Because that holding was subsequently modified by Matter
of Velarde, 23 I&N Dec. 253 (BIA 2002), in which the BIA stated that a petitioner’s
motion to reopen could be granted during the pendency of a I-130 visa petition, Jung
argues that she is entitled to a reopening of her deportation hearing.
While it is true that Jung would be entitled to a reopening of her hearing if all that
were at issue were the pendency of her visa application, the facts in her case are decidedly
different from those in Matter of Velarde. The IJ’s denial of Jung’s motion was only
partly based on the reasoning in Matter of Arthur, a fact that Jung overlooks. As the IJ
stated, Jung was “statutorily barred from reopening the case for another, independent
reason.” See AR at 97 (emphasis added). That independent reason was that Jung failed
to depart voluntarily, as she had agreed, something which Jung does not dispute. On this
point the immigration statutes are clear. Where an alien fails to depart voluntarily within
the specified time period, he or she is “ineligible for a period of 10 years” for adjustment

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1 In Matter of Shaar, the issue before the BIA was whether the “expiration of the
period of voluntary departure while a motion to reopen [was] pending render[ed]” the
petitioners “ineligible for suspension of deportation.” The BIA held that the IJ had
properly denied the petitioners’ motion to reopen where they had exceeded the time
granted them to voluntarily depart. Though they had filed their motion to reopen three
days before they were required to depart, their motion was not entertained until after the
period for departure had expired, and the BIA held that the IJ had properly denied their
motion because they had not shown any “‘exceptional circumstances’ for having
remained” past their required departure date.
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of status. 8 U.S.C. § 1229c(d). This crucial fact distinguishes Jung’s motion from those
in both Matter of Arthur and Matter of Velarde. In Matter of Arthur, the petitioner
moved to reopen before the end of his voluntary departure period. See Matter of Arthur.
In Matter of Velarde the BIA explicitly stated that “[t]he respondent was not granted
voluntary departure during proceedings before the Immigration Judge, and [that]
therefore [he was] not barred from adjustment of status for overstaying a voluntary
departure period.” Id. Furthermore, in Matter of Velarde, the BIA stated that a motion to
reopen could not be granted if barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA
1996).1 Here, unlike the petitioners in Matter of Shaar, Jung cannot even show that she
filed her motion to reopen before her required date of departure. Therefore, under the
holding in Matter of Velarde, her motion to reopen could not be granted because it was
barred by Matter of Shaar.
Given all this, it is perfectly clear that the BIA did not err in affirming the IJ’s

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2 We have also reviewed Jung’s claim that the IJ violated her due process rights
by ordering her voluntary departure. This argument is without merit. Jung was
represented by counsel at her hearing, and there is no allegation that counsel was not
authorized to proceed as she did or that Jung did not agree with the strategy employed by
her counsel.
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denial of Jung’s motion to reopen.2
IV.
We have reviewed all of Jung’s arguments and see no grounds for granting her
petition. Therefore, her petition to review will be denied.

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