9th Circuit: Motion For Stay Of Removal Treated As Motion For Stay Of Voluntary Departure

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit: Motion for stay of removal treated as motion for stay of voluntary departure
Immigrants' Rights Update, Vol. 18, No. 3, May 20, 2004

The U.S. Court of Appeals for the Ninth Circuit has ruled that a motion for a stay of removal pending consideration of a petition for review should be treated as also constituting a motion for a stay of voluntary departure. The ruling resolves a question that was not addressed in several opinions over the past year that changed the circuit’s treatment of voluntary departure.

As background, in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003), the court found that because of the statutory framework of removal proceedings, the filing of a petition for review no longer automatically stays voluntary departure, as had been the case with deportation proceedings. Judge Berzon filed a concurrence, emphasizing her conviction that if the court grants a stay of removal, it has equitable jurisdiction to stay voluntary departure. In Zazueta’s case, no stay motion had been filed. (For more on Zazueta, see “9th Circuit Finds Filing of Petition for Review Does Not Suspend Deadline for Voluntary Departure Granted by BIA,” Immigrants’ Rights Update, Apr. 8, 2003, p. 5).

Subsequently, in El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir. 2003), the court followed Judge Berzon’s reasoning to find that it did have equitable power to grant a timely motion to stay the period of voluntary departure. The court also found that the traditional standard for granting a stay of removal also applies to a stay of voluntary departure (see “9th Circuit Rules Court Can Stay the Period for Voluntary Departure Pending Review of a Removal Order,” IRU, Oct. 21, 2003, p. 7).

In the most recent case, the petitioner filed a motion for stay of removal before the voluntary departure granted by the Board of Immigration Appeals expired, but did not file a motion to stay voluntary departure until later. The government had not opposed the stay of removal, but it did oppose the motion to stay voluntary departure. Stating that “[w]hether and in what circumstances this court has the power to entertain a motion to stay voluntary departure when that motion is filed after the period for voluntary departure has expired is an issue of first impression in this circuit,” the court noted that other circuits have disagreed on this issue. Compare Velasquez v. Ashcroft, 342 F.3d 55 (1st Cir. 2003) (finding plenary authority to reinstate an expired period of voluntary departure) with Svridov v. Ashcroft, 358 F.3d 722 (10th Cir. 2004) (declining to grant untimely motion to stay voluntary departure, where petitioner provided no explanation for failing to file a timely motion).

However, in this case the court decided to treat the petitioner’s timely motion for a stay of removal as also a motion to stay voluntary departure, thus avoiding the need to resolve whether the court has authority to stay voluntary departure where no timely motion has been made. The court noted that under El Himri the same standards and the same procedures apply to motions for stays of removal and motions to stay voluntary departure. The court also considered that where a petitioner files a motion for stay of removal before the expiration of voluntary departure, “it would border on ineffective assistance of counsel to fail to file a motion to stay voluntary departure simultaneously.” The court noted that there was no ineffective assistance in this case, because the petitioner applied for a stay of removal before Zazueta was decided and had no reason to believe that a motion to stay voluntary departure was also needed.

The court therefore granted the motion to stay voluntary departure nunc pro tunc to the date of the motion to stay removal. Because the court also dismissed the petition for review, upholding the BIA’s denial of asylum in this case, the court noted that the stays of voluntary departure and removal will expire upon issuance of the mandate.

The ruling leaves unresolved whether and in what circumstances the court may grant a stay of voluntary departure where no stay motion was filed prior to the expiration of voluntary departure. The American Immigration Law Foundation has published an updated practice advisory that provides a more extensive treatment of this issue and addresses related recent developments in the Eighth Circuit. This is available at www.ailf.org.

Desta v. Ashcroft, No. 03-70477, 2004 U.S. App. LEXIS 7204
(9th Cir. Apr. 14, 2004).