Manuel Zazueta-Carrillo v. John D. Ashcroft, U.S. Attorney General

322 F.3d 1166 Manuel ZAZUETA-CARRILLO, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent. No. 02-70259. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 6, 2002. Filed March 13, 2003. As Amended April 25, 2003. Kevin A. Bove, Escondido, CA, for petitioner Manuel Zazueta-Carrillo. Robert D. McCallum, Jr., Assistant Atty. Gen., Civil Division, Washington, DC, David V. Bernal, Asst. Dir., Office of Immigration Litigation, Washington, DC, Barry J. Pettinato, Trial Attorney, Office of Immigration Litigation, Washington, DC, for respondent John D. Ashcroft. On Petition for Review of an Order of the Board of Immigration Appeals. D.C. No. Aqu-yta-dcu. Before: CANBY, GOULD, and BERZON, Circuit Judges. Opinion by Judge GOULD; Concurrence by Judge BERZON. GOULD, Circuit Judge. 1 When the Board of Immigration Appeals (BIA) decides that an alien is removable from the United States, the BIA may have discretion under 8 U.S.C. § 1229c to grant the alien the privilege of "voluntary departure." Voluntary departure is a time period during which the alien may leave the United States voluntarily rather than be removed. In this case, we are asked to…

Opinion by Judge GOULD; Concurrence by Judge BERZON.

When the Board of Immigration Appeals (BIA) decides that an alien is removable from the United States, the BIA may have discretion under 8 U.S.C. § 1229c to grant the alien the privilege of “voluntary departure.” Voluntary departure is a time period during which the alien may leave the United States voluntarily rather than be removed. In this case, we are asked to decide when that voluntary departure period begins to run. Does it begin when the BIA enters its order granting voluntary departure? Or does it begin when we conclude our review of the BIA’s decision on an alien’s status? Although we held in Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir.1988) (en banc), that the voluntary departure period begins to run on the latter date, Congress dramatically rewrote immigration law eight years after our decision. Congress’s revisions have undermined the Contreras-Aragon holding, so it is proper for us to reexamine the question of when the voluntary departure period begins. We hold today that, after Congress’s recent changes to immigration law, the voluntary departure period begins when the BIA enters its order granting…

concurring:

I concur in the opinion’s analysis of our prior decision in Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir.1988) (en banc). Our holding in the present case is based on extensive changes to the Immigration and Nationality Act (“INA”) brought about by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Of particular pertinence are the current absence of an automatic stay of removal in response to an alien’s petition for judicial review and the critical consideration that leaving the country no longer voids an alien’s petition.

I write separately, however, to emphasize my conviction that this court retains equitable jurisdiction to stay the availability of a voluntary departure period if the merits of an alien’s underlying case justify a stay of his or her removal order. It is critical to the result in this case that the petitioner applied for and was denied a stay of removal. This court has thus determined that petitioner’s merits petition was not strong enough to support a stay of removal. The only question presented, therefore, is whether petitioner’s voluntary departure grant was…