Martha Lucia Alvarado v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 8, 2010
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-11376
_________________________
Agency Nos. A079-494-222,
A079-494-223
MARTHA LUCIA ALVARADO,
ANDRES FELIPE LAVERDE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_____________________________
(July 8, 2010)
Before DUBINA, Chief Judge, FAY, Circuit Judge, and ALBRITTON, District*
Judge.
ALBRITTON, District Judge:
Honorable W. Harold Albritton, III, United States District Judge for the Middle District*
of Alabama, sitting by designation.

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Martha Lucia Alvarado and Andres Felipe Laverde seek review of the
Board of Immigration Appeals’s (“BIA”) final order of removal affirming the
Immigration Judge’s (“IJ”) decision to deny them the opportunity to apply for
voluntary departure pursuant to Immigration and Nationality Act (“INA”) §
240B(b)(1), 8 U.S.C. § 1229c(b)(1). The IJ denied Alvarado and Laverde the
opportunity to apply for voluntary departure because they waited to request this
relief until after the IJ denied their request for asylum and witholding of removal
and issued an oral decision ordering their removal from the United States.
On appeal, Alvarado and Laverde argue that the IJ violated their due
process rights under the Fifth Amendment and the INA statutes governing
voluntary departure by refusing to permit them to apply for voluntary departure at
the conclusion of their removal proceedings. In response, the Government argues1
that Alvarado and Laverde did not timely request voluntary departure, and thus the
IJ correctly denied them the opportunity to make the request after the IJ rendered
his oral decision on removability.
The INA provides that an IJ may grant voluntary departure “at the
conclusion of a proceeding,” but otherwise does not specify when the alien must
Because we ultimately conclude that the IJ’s interpretation of the statutes governing1
voluntary departure was unreasonable and requires a remand to determine Alvarado and
Laverde’s eligibility for voluntary departure, we do not address whether the denial of voluntary
departure violated the Fifth Amendment.
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request voluntary departure pursuant to INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1).
Because the IJ and the BIA misinterpreted the phrase “at the conclusion of a
proceeding” in a way that improperly denied Alvarado and Laverde the
opportunity the statute provides them to request voluntary departure, we vacate
and remand the BIA’s order.
I. BACKGROUND
Alvarado and Laverde, natives and citizens of Colombia, were admitted to
the United States at Miami, Florida, on or about May 22, 2001, as visitors for
pleasure. The Department of Homeland Security served them with notices to
appear on September 13, 2007, charging them with removability under INA §
237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained in the United
States for a time longer than permitted. Alvarado and Laverde filed applications
for asylum and withholding of removal pursuant to INA § 241(b)(3), 8 U.S.C. §
1231(b)(3). In March 2008, Alvarado and Laverde appeared before an IJ at a
master calendar hearing, and neither the IJ nor Alvarado or Laverde mentioned
voluntary departure. In May 2008, Alvarado and Laverde appeared before the IJ
at a merits hearing and did not provide testimony regarding their qualifications for
voluntary departure or mention voluntary departure in their closing statement. The
IJ rendered an oral decision, in which he denied Alvarado and Laverde’s requests
for asylum and witholding of removal, thus ordering their removal from the United
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States. Immediately after the IJ rendered his decision, Alvarado and Laverde
requested that the IJ grant them voluntary departure as an alternative to removal.
The IJ refused to consider their request because they did not mention voluntary
departure at the master calendar hearing or at any point during the merits hearing
before the IJ rendered his oral decision.2
Alvarado and Laverde filed a notice of appeal to the BIA, appealing the IJ’s
denial of asylum and withholding of removal, as well as his refusal to permit them
to apply for voluntary departure at the conclusion of the removal proceedings.
The BIA affirmed the denial of asylum and withholding of removal. The BIA3
also affirmed the IJ’s refusal to allow Alvarado and Laverde to apply for voluntary
departure, finding that Alvarado and Laverde had several opportunities during the
proceedings to request voluntary departure and present evidence regarding their
“Judge to Counsel2
Q. Is there anything else from either side?
Mr. Jaramillo to Judge
Q. Your Honor, the remaining issue of voluntary departure that they would be
seeking in the alternative.
A. Well, counsel, this was never brought up before.
Q. Well, we were seeking as an alternative form of relief.
A. This was never brought up at master calendar. This was never brought up at
any time and it was not brought up until the Court had already basically gone through everything.
You had an opportunity to, you had your client on the stand. You could have qualified your
client. You did nothing. So the Court is going to preclude you from going forward with that.
Okay.”
See Admin. R. 96-97, In Re Martha Lucia Alvarado, A079 494 222, Miami, FL (B.I.A. Feb. 26,
2009).
Alvarado and Laverde do not appeal the decision of the BIA denying asylum and3
withholding of removal.
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qualifications for voluntary departure, but failed to do so.
II. JURISDICTION
We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam) (citing Brooks
v. U.S. Att’y Gen., 283 F.3d 1268, 1272 (11th Cir. 2002)). Section 1252 of Title 8
limits our jurisdiction over denials of discretionary relief in immigration
proceedings, including the denial of voluntary departure. See INA §
242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). This statute, however, does not strip us of
jurisdiction over the issue in this case. Although we lack jurisdiction to review a
discretionary decision denying voluntary departure, we retain jurisdiction to
review non-discretionary legal determinations as to statutory eligibility for
discretionary relief. Gonzalez-Oropeza, 321 F.3d at 1332 (citing Al Najjar v. U.S.
Att’y Gen., 257 F.3d 1262, 1297-98 (11th Cir. 2001)). In this case, the IJ
concluded that Alvarado and Laverde failed to timely request voluntary departure,
and thus refused to permit them to apply for such discretionary relief and prove
their eligibility. This conclusion was a non-discretionary judgment regarding
Alvarado and Laverde’s statutory eligibility to request discretionary relief, and
therefore, we have jurisdiction.4
Because we have jurisdiction on this basis, we need not consider whether jurisdiction is4
proper on the ground that Alvarado and Laverde have a substantial constitutional claim pursuant
to INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).
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III. STANDARD OF REVIEW
Where the BIA issues its own decision, we review only that decision,
“except to the extent that it expressly adopts the IJ’s opinion.” Reyes-Sanchez v.
U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting Al Najjar, 257
F.3d at 1284).
We review issues of statutory interpretation de novo, but we defer to a
reasonable interpretation of the statute by the agency that administers it.
Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005) (citing
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44,
104 S. Ct. 2778, 2781–83 (1984)).
IV. DISCUSSION
Voluntary departure is a discretionary form of relief that permits certain
aliens to depart the United States at their own expense. INA § 240B, 8 U.S.C. §
1229c; see also Dada v. Mukasey, __ U.S. __ , 128 S. Ct. 2307, 2312 (2008). The
immigration laws distinguish between a grant of voluntary departure at two
different stages of removal proceedings. See INA § 240B(a)(1)–(b)(1), 8 U.S.C. §
1229c(a)(1)–(b)(1); Narine v. U.S. Att’y Gen., 559 F.3d 246, 248 n.1 (4th Cir.
2009); Hashish v. U.S. Att’y Gen., 442 F.3d 572, 577-78 (7th Cir. 2006).
“Pre-conclusion voluntary departure” allows an alien charged with
removability to depart the country voluntarily, at his own expense, instead of
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going through removability proceedings, or prior to the completion of
removability proceedings, pursuant to INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1).5
In order to be granted voluntary departure at this stage, an alien must make his or
her request prior to or at the master calendar hearing at which the case is
scheduled for a hearing on the merits. 8 C.F.R. § 1240.26(b)(1)(i)(A).6
“Post-conclusion voluntary departure” is separately provided for in INA §
240B(b)(1), 8 U.S.C. § 1229c(b)(1), which allows an IJ to enter an order granting
voluntary departure at the conclusion of a removal proceeding. The statute and7
8 U.S.C. § 1229c(a)(1) states:5
The Attorney General may permit an alien voluntarily to depart the United States at
the alien’s own expense under this subsection, in lieu of being subject to proceedings
under section 1229a of this title or prior to the completion of such proceedings, if the
alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of
this title.
In addition to the explicit timeliness requirement regarding the request for voluntary6
removal prior to the completion of removal proceedings, regulations require the alien to make no
additional requests for relief, or to withdraw any such requests before voluntary departure may be
granted; concede removability; waive appeal of all issues; and not be deportable as an aggravated
felon or on security grounds. See 8 C.F.R. § 1240.26(b)(1)(i)(B)-(E).
8 U.S.C. § 1229c(b)(1) states:7
The Attorney General may permit an alien voluntarily to depart the United States at
the alien’s own expense if, at the conclusion of a proceeding under section 1229a of
this title, the immigration judge enters an order granting voluntary departure in lieu
of removal and finds that –
(A) the alien has been physically present in the United States for a period of
at least one year immediately preceding the date the notice to appear was served
under section 1229(a) of this title;
(B) the alien is, and has been, a person of good moral character for at least 5
years immediately preceding the alien’s application for voluntary departure;
(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section
1227(a)(4) of this title; and
(D) the alien has established by clear and convincing evidence that the alien
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corresponding regulation do not specify when an alien must make a request for
this type of voluntary departure. Indeed, the question in this case is whether an
alien who has not sought pre-conclusion voluntary departure may, for the first
time, request post-conclusion voluntary departure at the end of a removal
proceeding, after the IJ issues an oral decision ordering the alien’s removal from
the United States.
Post-conclusion voluntary departure permits an immigration judge to enter
an order granting voluntary departure in lieu of removal “at the conclusion of a
proceeding.” INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1). The Government
argues that Alvarado and Laverde’s request for voluntary departure was untimely
under the statute because the request came after the IJ issued an oral decision
denying their asylum application and ordering them removed from the United
States. According to the Government’s interpretation of the statute, the
proceeding concluded the moment the IJ rendered his oral decision and ordered
Alvarado and Laverde removed from the United States; therefore, after this
moment, Petitioners could not request voluntary departure.
Under the rules of statutory construction, the plain meaning is conclusive,
except when the literal interpretation will produce a result at odds with the intent
has the means to depart the United States and intends to do so.
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of the statute. In re Hoggle, 12 F.3d 1008, 1010 (11th Cir. 1994) (citing United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 1031 (1989)).
When interpreting a statute, we do not analyze a particular clause in isolation, but
we must consider it in light of the entire statute. Dada, 128 S. Ct. at 2317 (citing
Kokoszka v. Belford, 417 U.S. 642, 650, 94 S. Ct. 2431, 2436 (1974)).
Additionally, we look not only to plain meaning of the statute, but also its design,
object, and policy. Crandon v. United States, 494 U.S. 152, 158, 110 S. Ct. 997,
1001 (1990).
Considering the statutory scheme governing voluntary departure as a whole,
the Government’s argument that an alien cannot request post-conclusion voluntary
departure immediately after the IJ issues an oral decision on removal is
unreasonable. First, the statutes and regulations governing voluntary departure
never state that an alien must request post-conclusion voluntary departure before
an IJ issues an oral decision on removal. Rather, the statute speaks to when an IJ
may enter an order regarding post-conclusion voluntary departure, and specifies
that the IJ may enter the order “at the conclusion of a proceeding.” See INA §
240B(b)(1), 8 U.S.C. § 1229c(b)(1). A corresponding regulation further provides
that an application for voluntary departure “shall be made only during the
hearing.” See 8 C.F.R. § 1240.11(b) and (e). Together these provisions permit an
alien to request post-conclusion voluntary departure at any time during the
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hearing. Here, Alvarado and Laverde requested voluntary departure during the
hearing, as their request is reflected on the hearing transcript. See Admin. R. at
96-97. Unless there is a statute or regulation that requires an alien to request post-
conclusion voluntary departure as soon as the opportunity presents itself, the
failure to do so does not forfeit an alien’s ability to apply for such relief.
Under the current statutory scheme for voluntary departure, the two
categories differ in the availability of appeals, the requirements that must be
satisfied, and the number of days available for voluntary departure. See INA
§240B(a)-(b), 8 U.S.C. § 1229(a)-(b). Additionally, the statute does not give a
preference as to which form of voluntary departure an alien should request. The
alien has complete discretion to strategically choose when to request voluntary
departure, if at all, because each form carries different consequences.
Moreover, allowing an alien to apply for voluntary departure immediately
after the IJ issues an oral decision on removability is consistent with the design,
object, and policy of the statutes and regulations governing such relief.
“Voluntary departure, under the current structure, allows the Government and the
alien to agree upon a quid pro quo.” Dada, 128 S. Ct. at 2314. From the
Government’s perspective, voluntary departure expedites the deportation process
and avoids the expense of deportation. Id. From the alien’s perspective, voluntary
departure allows him or her to avoid extended detention prior to departure, choose
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when to depart (subject to certain constraints), select the country of destination,
and facilitate readmission at a later date by avoiding some of the penalties
attendant to deportation. Id. Allowing an alien to request voluntary departure
immediately after an IJ denies him or her asylum is consistent with this quid pro
quo arrangement. It allows the alien to vigorously urge the granting of asylum and
withholding of removal, and then, only after having been denied that relief, to seek
leave to voluntarily depart, in lieu of the ordered removal. And, it does not
compromise the Government’s interest in a “prompt and costless departure.”
Dada, 128 S. Ct. at 2319.8
The Government argues that 8 U.S.C. § 1229a(c)(4) supports requiring an
alien to request post-conclusion voluntary departure before the IJ issues an oral
decision ordering the alien removed. It does not. That code section provides,
among other things, that the alien has the burden of proof to establish that he or
she is eligible for discretionary relief, but that section says nothing of when the
alien must request voluntary departure pursuant to INA § 240B(b)(1), 8 U.S.C. §
1229c(b)(1).
We stress that Petitioners in this case requested post-conclusion voluntary departure8
immediately after the IJ issued his oral decision on removal, and prior to the conclusion of the
hearing. We express no opinion on the validity of a later request, which may compromise the
government’s interest in a prompt and costless departure. See, e.g., 8 C.F.R. § 1240.26(e) (“If
voluntary departure is granted at the conclusion of proceedings, the immigration judge may grant
a period not to exceed 60 days.”).
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The Government also argues that, because the statute requires certain
criteria to be met before voluntary departure may be granted, the request for
voluntary departure must necessarily be made prior to the IJ’s oral decision. This
argument also fails. The Government is correct that the statute clearly requires an
alien to prove that he or she is qualified for voluntary departure. See 8 U.S.C. §
1229c(b)(1)(A)-(D). But, requiring an alien to prove that he or she is qualified for
voluntary departure speaks to what an alien must prove to be eligible, not when it
must be proved.
The Government next argues that, because an IJ may grant an order of
voluntary departure “in lieu of removal” at the conclusion of a proceeding under
INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1), the request for voluntary departure
must be made before the IJ’s order on removal. The phrase “in lieu of removal”
sheds no light on the issue of when an alien must request voluntary departure. The
phrase simply means that voluntary departure is an alternative form of relief that
may take the place of a removal order. The phrase has no bearing on the timing of
a request for voluntary departure.
Lastly, the Government argues that allowing an alien to request voluntary
departure immediately after an IJ’s oral decision ordering removal would “mandate
reopening” of the removal proceedings, forcing the IJ to permit an alien to testify
about his or her statutory eligibility for voluntary departure after the proceedings
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concluded. This “mandatory reopening,” according to the Government, would
upset the statutory scheme that Congress has established to address removability
and the granting of relief from removal. This argument is unpersuasive. The
statute permits an IJ to grant an order of voluntary departure “at the conclusion of a
proceeding,” and the proceeding does not necessarily conclude, for purposes of
requesting voluntary departure, the moment an IJ issues an oral decision on
removal. Thus, allowing an alien to request voluntary departure immediately after
the IJ’s oral decision does not mandate reopening of the proceeding, because the
proceeding has not yet concluded.
In sum, interpreting the phrase “at the conclusion of a proceeding” to allow
an alien to request voluntary departure after an IJ denies an asylum application
recognizes the incentives both of the Government and the alien, and it ensures the
smoothest working of the statute as a whole.
V. CONCLUSION
Alvarado and Laverde requested asylum and withholding of removal. They
lost. They then requested voluntary departure, immediately after the IJ rendered
his oral decision on removal, and prior to the conclusion of the hearing. Allowing
them to make their request at that time is consistent with the statutory requirement
that an IJ may grant voluntary departure “at the conclusion of a proceeding”
pursuant to INA § 240(b)(1), 8 U.S.C. § 1229c(b)(1). We conclude that the BIA’s
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interpretation of “at the conclusion of a proceeding” was unreasonable because it
denied Alvarado and Laverde the opportunity to request voluntary departure
immediately after the IJ’s oral decision and prior to the conclusion of the hearing.
The request was timely made. We vacate the BIA’s order and remand for a
determination on Alvarado’s and Laverde’s application for voluntary departure.
VACATED AND REMANDED
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