Zazueta-Carrillo v. Ashcroft: 9th Circuit Finds Filing of Petition for Review Does Not Suspend Deadline...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

ZAZUETA-CARRILLO V. ASHCROFT: 9TH CIRCUIT FINDS FILING OF PETITION FOR REVIEW DOES NOT SUSPEND DEADLINE FOR VOLUNTARY DEPARTURE GRANTED BY BIA
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that when the Board of Immigration Appeals issues a final order including a grant of voluntary departure, the time for departure is not suspended by the filing of a petition for review. The panel concluded that the court's prior decision in Castillo-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988) (en banc), has been undermined by changes in the law enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In Castillo-Aragon, the court found that when a petition for review is timely filed before the BIA's grant of voluntary departure has expired, the BIA's order, including the grant of voluntary departure, is stayed and does not take effect unless and until the order is upheld on appeal.

The serious consequences of failing to depart before the expiration of voluntary departure include the entry of an order of removal and bars to future discretionary relief, including adjustment of status.

The panel found that several changes in the law subsequent to the ruling in Castillo-Aragon serve to undermine that decision. Among other things, the decision in Castillo-Aragon was based on the fact that the court would lose jurisdiction over the petition for review if the petitioner departed the United States; after the IIRIRA, that is no longer the case. Castillo-Arragon was also based on the fact that under pre-IIRIRA law the filing of a petition for review automatically stayed the BIA's order pending resolution of the appeal. That also was changed by the IIRIRA, and the BIA's order now is stayed only if the court decides to grant a stay.

Because in this case the court had denied a stay, the panel majority did not address whether the period of voluntary departure would be suspended under its ruling if a stay is granted. Judge Martha Berzon wrote a separate concurrence to emphasize her conviction that if the court grants a stay of the removal order, it has equitable jurisdiction to stay the availability of voluntary departure.

Zazueta-Carrillo v. Ashcroft, No. 02-70259 (9th Cir. Mar. 13, 2003).