Rene Adan Contreras-Aragon v. Immigration and Naturalization Service

852 F.2d 1088 57 USLW 2057 Rene Adan CONTRERAS-ARAGON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 85-7392. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted June 16, 1987. Decided July 15, 1988. Rosemary J. Esparza, Centro De Asuntos Migratorios, Chula Vista, Cal., for petitioner. James A. Hunolt, Office of Immigration Litigation, Civil Div., Washington, D.C., for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before BROWNING, Chief Judge, GOODWIN, SNEED, HUG, TANG, FLETCHER, PREGERSON, POOLE, REINHARDT, KOZINSKI, and NOONAN, Circuit Judges. HUG, Circuit Judge: 1 We took this case en banc to resolve an issue concerning the effect of affirming an order of deportation that also provides for voluntary departure. The Board of Immigration Appeals ("BIA") found Contreras-Aragon deportable and granted the alternative discretionary relief of 30 days' voluntary departure. A panel of our court affirmed the order of the BIA, but held that the voluntary departure period allowed by the BIA had expired and was no longer available to Contreras-Aragon. We voted sua sponte to take the case en banc to…

We took this case en banc to resolve an issue concerning the effect of affirming an order of deportation that also provides for voluntary departure. The Board of Immigration Appeals (“BIA”) found Contreras-Aragon deportable and granted the alternative discretionary relief of 30 days’ voluntary departure. A panel of our court affirmed the order of the BIA, but held that the voluntary departure period allowed by the BIA had expired and was no longer available to Contreras-Aragon. We voted sua sponte to take the case en banc to determine whether the affirmance of the BIA order permitted Contreras-Aragon to voluntarily depart during the pendency of his petition and the 30-day period following the issuance of our mandate affirming the BIA. We hold that it does.

I.

The panel’s decision reversed a practice that we have followed for many years without objection by the Immigration and Naturalization Service (“INS”). The long-standing practice was to permit an alien afforded the right of voluntary departure by the BIA the opportunity to depart voluntarily until a fixed time after the issuance of our mandate affirming the order of deportation. More precisely, the period did not end until…

with whom SNEED, Circuit Judge, joins, dissenting:

There is no mystery about what the majority is doing in this case: It is reinstating a grant of voluntary departure that long ago expired. That’s what petitioner asks us to do, see Petitioner’s Opening Brief at 36; Petitioner’s Brief for Rehearing En Banc at 4, 11, 13, 14; 1 that’s what the original panel held we had no authority to do, see Contreras-Aragon v. INS, 789 F.2d 777, 779 (9th Cir.1986); that’s what we ordered the parties to brief upon taking the case en banc, see Order of Mar. 10, 1987 (parties to brief “whether this court may reinstate a lapsed grant of voluntary departure”). That’s what this case is all about.

Daunted, perhaps, by the fact that neither statute nor regulation nor Supreme Court opinion authorizes such an action, the majority disavows any intention of reinstating anything, purporting merely to affirm the grant of voluntary departure once issued by the BIA. Since we surely have the power to review and affirm, the majority claims, we are doing nothing extraordinary or unprecedented; we are merely per *1098 forming our normal function of judicial review.

Saying so won’t make it so.

Courts, particularly…

concurring in part:

I concur in the majority opinion with the exception of Part IV, which I believe is unnecessary to the decision.

dissenting:

I do not question the majority’s sincerity or its purpose to ameliorate what it deems to be a harsh facet of the immigration laws. But no matter how intellectually crafted the majority opinion, I disagree with its conclusion because it is a very present fact that only the Attorney General of the United States, or his designee, has the authority by law to grant to an alien the privilege of voluntary departure. That authority has in fact been given to the Board of Immigration Appeals. Thus designated, the Board granted a 30-day voluntary departure to the petitioner. He neither departed within that time nor sought an extension from the Board. As Judge Kozinski has pointed out in his dissent, the order of extension expired by its own terms. I do not think we can give it resurrection. If the Congress had authorized the United States Courts of Appeals to grant voluntary departure, I would concur in a decision doing so. We do not have the authority; we should not venture to create such power.

With deference to the majority of this en banc court, I believe today’s opinion to be erroneous. Therefore, I respectfully dissent.