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Barker v. Ashcroft

December 24, 2003

SANDRA BARKER, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of the Board of Immigration Appeals INS No. A23 913 939

Before: Roth, McKEE, and Rosenn, Circuit Judges

The opinion of the court was delivered by: Rosenn, Circuit Judge

PRECEDENTIAL - Released for publication September 1, 2004

Submitted Under Third Circuit LAR 34.1(a) December 16, 2003

OPINION OF THE COURT

The petitioner-appellant, Sandra Barker, appeals from a final order by the Board of Immigration Appeals ("Board") denying her motion to reopen her deportation proceedings. The Board denied Barker's motion to reopen its decision, dismissing her appeal from an immigration court's order of deportation, because of her failure to depart voluntarily from this country as ordered. We affirm.

I.

Barker, a native and citizen of Jamaica, entered the United States on January 1, 1989, with a fiancée visa, with permission to remain in this country until April 14, 1989. She did not marry her fiancé and remained in the United States longer than permitted. On June 26, 1996, the Immigration and Naturalization Service (INS), the predecessor to the Bureau of Citizenship and Immigration Services, com men ced d epor tation proceedings against her with the filing of an Order to Show Cause why she should not be deported.

Barker appeared before an immigration judge (IJ) in September 1996. She admitted the allegations contained in the Order to Show Cause. Based on the admissions, the IJ found her deportable as charged. She requested relief and protection from deportation in the form of political asylum, withholding of deportation, and suspension of deportation. In the alternative, she sought the privilege of voluntary departure.

Barker offered testimony and documentary evidence in support of her applications for relief and protection from deportation. She sought asylum and withholding of deportation based on her claim of having been persecuted, and having a fear of persecution, in Jamaica on account of her political opinion and her family's alleged involvement with the Jamaica National Party. She sought suspension of deportation based on a claim of extreme hardship if deported from the United States.

Upon a hearing, the IJ denied Barker's application for asylum in all of its aspects. The IJ, however, granted Barker's alternative request for voluntary departure until October 4, 1997. In granting voluntary departure, the immigration judge informed Barker orally:

I have granted you voluntary departure for a period of six months. If you do not appeal your case, or if you appeal your case and lose, then you will have to leave the United States. Okay. It may be possible to get more time beyond October 4th, but you would have to ask the Immigration Service for that not me, I have no authority to extend that time.... If you remain beyond the departure date without a very good excuse, for example, if you get seriously sick or injured, then there will be penalties, you'll be ordered deported back to Jamaica and you'll also lose the right to apply for certain kinds of important immigration benefits for a period of five years. I'm giving you forms in English and in Spanish, that describes those penalties and I'm also giving you a copy of the order that I'm entering today den ying the asylum an d withholding, and suspension and granting you voluntary departure for six months. Ms. Barker, do you have any questions?

As noted by the IJ, he provided Barker with written notice of the limitations on discretionary relief if she failed to depart voluntarily by October 4, 1997.

Written notice was provided to Barker in English and Spanish and that "[o]ral notice of the contents of this notice was given to the alien in his/her native ...


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