Seemabahen G. Patel v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1572
SEEMABAHEN G. PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A073-172-524)
Immigration Judge: Honorable Eugene Pugliese

-- 1 of 14 --

2
Argued July 12, 2010
Before: RENDELL, JORDAN and GREENAWAY, JR.,
Circuit Judges
(Filed: August 24, 2010)
Robert Frank, Esq. [ARGUED]
Frank & York
60 Park Place
Suite 1010
Newark, NJ 07102
Counsel for Petitioner
Seemabahen G. Patel
Kate Deboer Balaban, Esq.
Eric H. Holder, Jr. Esq.
Susan K. Houser, Esq.
Thomas W. Hussey, Esq.
John J. W. Inkeles, Esq. [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Attorney General of the United States

-- 2 of 14 --

3
OPINION OF THE COURT
RENDELL, Circuit Judge.
Seemabahen Patel has filed a petition for review of the
Board of Immigration Appeals’ (“BIA”) final order affirming
the denial of her application for cancellation of removal. She
has also requested a stay of the voluntary departure ordered by
the Immigration Judge (“IJ”). At issue is whether we have
jurisdiction over her petition for review, which challenges an
adverse “hardship” determination, and whether, pursuant to
8 C.F.R. § 1240.26(i), we have the ability to stay her voluntary
departure once she has filed a petition for review. We conclude
that we lack the ability to stay her voluntary departure because,
pursuant to that regulation, her voluntary departure terminated
upon her filing of a petition for review. We also conclude that
we lack jurisdiction to consider her challenge to the agency’s
discretionary determination as to her claim of hardship.
Background
Patel, a citizen of India, entered the United States
illegally in 1992. On April 29, 2006, Patel was issued a Notice
to Appear and was charged with being subject to removal. Patel

-- 3 of 14 --

4
conceded removability, but applied for cancellation of removal
pursuant to 8 U.S.C. § 1229b(b), claiming that her removal
would cause her husband and her son, both United States
citizens, “exceptional and extremely unusual hardship.” During
her hearing before the IJ, Patel presented evidence that her
11-year old son was a strong student and was engaged in local
community activities. She urged that moving her family to India
would deprive her son of educational opportunities that he could
only have in the United States. Additionally, Patel contended
that living in India would be a hardship to her husband, who
suffers from a thyroid condition, which is managed with daily
medication. After reviewing the evidence, the IJ concluded that
any hardship created by the prospect of Patel’s removal was not
“exceptional or extremely unusual.” App. 57, 62. In doing so,
the IJ noted that Patel’s son was a “good student” and a “bright
boy,” but that he was not a “budding genius” or “a prodigy of
any sort who is now going to be deprived of an opportunity to
develop [his] abilities” if required to live with his mother in
India. App. 9-10. Consequently, the IJ denied Patel’s
application for cancellation of removal and granted her
voluntary departure. The IJ’s decision was affirmed by the BIA
without opinion. The BIA’s final order included a warning, as
required by 8 C.F.R. § 1240.26(i), that:
if, prior to departing the United States, the
respondent filed any judicial challenge to this
administratively final order, such as a petition for
review pursuant to section 242 of the Act,

-- 4 of 14 --

Patel did not raise her claim that the IJ was predisposed1
against her on appeal to the BIA. She has thus failed to exhaust
her remedies as to this claim and we lack jurisdiction to review
it. See 8 U.S.C. § 1252(d)(1) (requiring the exhaustion of all
administrative remedies available to an alien before a court may
review a final order of removal); Bonhometre v. Gonzales, 414
F.3d 442, 448 (3d Cir. 2005) (holding that we lack jurisdiction
over a petition for review based on a claim that could have been,
but was not, brought before the BIA). Additionally, even if we
were to consider this claim on the merits we would not grant
relief because the IJ’s comments during the hearing do not
demonstrate a predisposition against Patel.
5
8 U.S.C. § 1252, the grant of voluntary departure
is automatically terminated, and the alternate
order of removal shall immediately take effect.
App. 3.
On appeal, Patel challenges the IJ’s hardship
determination, contends that the IJ was unfairly predisposed to
find against her, and seeks a stay of her voluntary departure1
period.
Discussion
I. Exceptional and Extremely Unusual Hardship
An alien who is removable from the United States is

-- 5 of 14 --

The IJ found that Patel satisfied 8 U.S.C. §§ 1229b(b)(1)(A)2
through (C), yet failed to establish “exceptional and extremely
unusual hardship” under § (D).
6
eligible for cancellation of removal if she:
(A) has been physically present in the United
States for a continuous period of not less than
10 years immediately preceding the date of such
application;
(B) has been a person of good moral character
during such period;
(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of
this title, subject to paragraph (5); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien lawfully
admitted for permanent residence.2
8 U.S.C. § 1229b(b)(1) (emphasis added).
We lack jurisdiction to review discretionary decisions
made pursuant to 8 U.S.C. § 1229b, including “exceptional and
extremely unusual” hardship determinations. 8 U.S.C.

-- 6 of 14 --

7
§ 1252(a)(2)(B)(i); Mendez-Moranchel v. Ashcroft, 338 F.3d
176, 179 (3d Cir. 2003). Our review is limited to “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Francois
v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006).
Patel concedes that we cannot review the IJ’s
discretionary determinations, yet urges that the IJ’s
misapplication of the hardship standard presents a question of
law. Patel contends that the IJ failed to consider all of the
consequences of moving her family to India and that the IJ
“undervalued the severity of hardship when considering the
extraordinary academic achievement of [Patel’s] son and the
emotional and financial impact on him and [Patel’s] husband”
of moving to India. Pet’r Br. 5-6.
Challenges to “exceptional and extremely unusual”
hardship determinations constitute “quarrels over the exercise of
discretion and the correctness of factual findings” and do not
raise constitutional claims or questions of law. Cospito v. Att’y
Gen., 539 F.3d 166, 170 (3d Cir. 2008), quoting Camara v.
Dep’t of Homeland Sec., 497 F.3d 121, 124 (2d Cir. 2007). We
do not have jurisdiction to review the IJ’s discretionary
determination that the hardship to Patel’s son and husband did
not satisfy the “exceptional and extremely unusual”
requirements of 8 U.S.C. § 1229b(b)(1)(D). Id. at 179. We
recently clarified that, while we do not have jurisdiction to
“rehash” the IJ’s determination of whether an alien meets this
hardship requirement, we do have jurisdiction to review whether

-- 7 of 14 --

8
the IJ used the correct legal standard to reach this determination.
Pareja v. Att’y Gen., _ F.3d _ , No. 08-4598, 2010 WL 2947239
at *4 (3d Cir. July 29, 2010). Although Patel claims to be
challenging the IJ’s misapplication of a legal standard, she is
actually asserting that she met her burden of showing an
exceptional hardship. We do not have jurisdiction to review this
claim because it challenges a discretionary determination and
does not present a constitutional question or a question of law.
Id.; see also Mendez-Moranchel, 338 F.3d at 179; Sukwanputra
v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).
II. Stay of Voluntary Departure
Our ability to grant a stay of voluntary departure is
limited by a recent regulation, 8 C.F.R. § 1240.26(i), that took
effect on January 20, 2009 and states, in relevant part:
(i) Effect of filing a petition for review. If, prior
to departing the United States, the alien files a
petition for review pursuant to section 242 of the
Act (8 U.S.C. 1252) or any other judicial
challenge to the administratively final order, any
grant of voluntary departure shall terminate
automatically upon the filing of the petition or
other judicial challenge and the alternate order of
removal entered pursuant to paragraph (d) of this
section shall immediately take effect, except that
an alien granted the privilege of voluntary
departure under 8 C.F.R. 1240.26(c) will not be

-- 8 of 14 --

Also, subsection (f) of 8 C.F.R. § 1240.26 deals with3
extending the time to depart and states that “the filing of a
petition for review has the effect of automatically terminating
the grant of voluntary departure, and accordingly also does not
toll, stay, or extend the period allowed for voluntary departure.”
9
deemed to have departed under an order of
removal if the alien departs the United States no
later than 30 days following the filing of a petition
for review, provides to DHS such evidence of his
or her departure as the ICE Field Office Director
may require, and provides evidence DHS deems
sufficient that he or she remains outside of the
United States. The Board shall advise the alien of
the condition provided in this paragraph in writing
if it reinstates the immigration judge’s grant of
voluntary departure. . . . Since the grant of
voluntary departure is terminated by the filing of
the petition for review, the alien will be subject to
the alternate order of removal, but the penalties
for failure to depart voluntarily under section
240B(d) of the Act shall not apply to an alien who
files a petition for review, and who remains in the
United States while the petition for review is
pending. 3
(Emphasis added). The Attorney General has the authority to
promulgate regulations that limit eligibility for voluntary
departure. 8 U.S.C. § 1229c(e). Our review of such regulations

-- 9 of 14 --

10
is, again, limited to constitutional claims or questions of law.
Id.; 8 U.S.C. § 1252(a)(2)(D). Under the plain language of
8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary
departure after a petitioner seeks judicial review because the
grant has already terminated.
Patel concedes that this regulation is unambiguous, yet
cites Obale v. Attorney General, in which we held that we had
jurisdiction to grant a stay of voluntary departure. 453 F.3d 151
(3d Cir. 2006). However, Obale predated the effective date of
8 C.F.R. § 1240.26 and our holding was based on the fact that
there was “no indication that Congress intended to eliminate this
court’s equitable jurisdiction to grant a stay of the voluntary
departure period.” Id. at 157. The regulation now controls, and
requires a contrary finding.
Patel next challenges the propriety of the regulation,
explaining that an alien’s statutory right to seek judicial review
“should not prevent [her] from availing [herself] of forms of
relief to which [she] would otherwise be entitled.” Pet’r Mem.
in Support of Jurisdiction to Stay, 4. As the Supreme Court has
explained, however, a voluntary departure arrangement between
an alien and the government is a quid pro quo. See Dada v.
Mukasey, 128 S.Ct. 2307, 2319 (2008) (“Voluntary departure is
an agreed-upon exchange of benefits, much like a settlement
agreement. In return for anticipated benefits, including the
possibility of readmission, an alien who requests voluntary
departure represents that he or she has the means to depart the

-- 10 of 14 --

At the time of the Dada decision, voluntary departure4
automatically withdrew an alien’s motion to reopen, but if an
alien overstayed her departure date, she would be subject to
penalties. Therefore, an alien was forced to choose between
departing and foregoing her motion to reopen, or staying in the
United States and incurring penalties for failing to timely depart.
The Supreme Court found this conflict “untenable” and resolved
(continued...)
11
United States and intends to do so promptly.”) (internal
quotation marks omitted); see also Reynoso-Lopez v. Ashcroft,
369 F.3d 275, 283 (3d Cir. 2004) (explaining that the “purpose
of authorizing voluntary departure in lieu of deportation is to
effect the alien’s prompt departure without further trouble to the
[government]. Both the aliens and the [government] benefit
thereby.”) (quoting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166,
1173 (9th Cir. 2003)).
We conclude that, given the mutual benefit envisioned in
the grant of voluntary departure, there is nothing wrong with
conditioning the right to voluntarily depart on the alien’s
relinquishing the right to engage in appeal proceedings. In
Dada, the Court noted the choices available to the alien, stating
that an alien “has the option either to abide by the terms, and
receive the agreed-upon benefits, of voluntary departure; or,
alternatively, to forgo those benefits and remain in the United
States to pursue an administrative motion.” 128 S.Ct. at 2319-
20. Dada anticipated the enactment of 8 C.F.R. § 1240.26 ,4 5

-- 11 of 14 --

(...continued)4
it by allowing an alien an opportunity to withdraw her motion
for voluntary departure before the time for her to depart had
expired. Dada, 128 S. Ct. at 2311.
“[T]he DOJ has proposed an amendment to 8 C.F.R.5
§ 1240.26 that, prospectively, would ‘provide for the automatic
termination of a grant of voluntary departure upon the timely
filing of a motion to reopen or reconsider, as long as the motion
is filed prior to the expiration of the voluntary departure
period.’” Dada, 128 S.Ct. at 2318. Section 1240.26 thus
eliminates one of the Dada Court’s primary concerns, i.e. that an
alien who fails to timely depart in order to pursue a motion to
reopen would be subject to penalties. By automatically
terminating a grant of voluntary departure upon the filing of a
motion to reopen or a petition for review, the regulation at issue
protects an alien from penalties for failure to depart within the
allotted time period.
The right to file a petition for review and the right to file a6
motion to reopen are both provided by statute. 8 U.S.C. § 1252;
(continued...)
12
recognizing that the automatic termination of an alien’s grant of
voluntary departure upon the filing of a motion to reopen was
permissible. Therefore, it follows that the automatic termination
of an alien’s grant of voluntary departure upon the filing of a
petition for review, and conditioning the grant of voluntary
departure upon the alien’s foregoing that right, is similarly
unobjectionable.6

-- 12 of 14 --

(...continued)6
8 U.S.C. § 1229a(c)(7).
We previously noted, in dicta, that 8 C.F.R. § 1240.26(i)
clarifies:
that the filing of a petition for review
automatically terminates the grant of voluntary
departure. The new regulation thus reinforces the
nature of voluntary departure as an ‘agreed-upon
exchange of benefits,’ and stresses the choice an
alien must make between the benefits of voluntary
departure, with its concomitant obligation to
depart promptly, on one hand, or pursuing
litigation without agreeing to depart promptly, on
the other.
Sandie v. Att’y Gen., 562 F.3d 246, 252 n. 5 (3d Cir. 2009).
“[A]n alien granted the privilege of voluntary departure7
under 8 C.F.R. 1240.26(c) will not be deemed to have departed
under an order of removal if the alien departs the United States
no later than 30 days following the filing of a petition for
review, provides to DHS such evidence of his or her departure
(continued...)
13
Furthermore, under 8 C.F.R. § 1240.26(i), an alien does
not necessarily lose her right to file a petition for review. If she
voluntarily departs within 30 days of filing a petition for review
and provides evidence that she remains outside of the United
States, she will not be deemed to have departed under an order
of removal, and can thus pursue her petition for review.7

-- 13 of 14 --

(...continued)7
as the ICE Field Office Director may require, and provides
evidence DHS deems sufficient that he or she remains outside
of the United States.” 8 C.F.R. § 1240.26(i).
14
For the foregoing reasons, we will DISMISS Patel’s
petition for review for lack of jurisdiction, and DENY her
motion for a stay of voluntary departure in light of 8 C.F.R.
§ 1240.26(i).

-- 14 of 14 --