On Petition for Review of Order of Removal from the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review (BIA No. A73-048-242)
Before: Nygaard and Garth, Circuit Judges, and
Pollak, District Judge*fn1
The opinion of the court was delivered by: Garth, Circuit Judge
Argued: Wednesday, December 15, 2004
Section 242B(e) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996), prohibits an alien who has remained in the United States after the scheduled date of voluntary departure from applying for certain forms of relief, including an adjustment of status, for a period of five years.*fn2 A proper showing of "exceptional circumstances" is the only escape from the clear strictures of that provision. See 8 U.S.C. §§ 1252b(e)(2)(A), (f)(2) (repealed 1996).
In this appeal, we must decide whether the failure of the immigration authorities to adjudicate a timely and properly filed motion to reopen during the pendency of the period of voluntary departure falls within the "exceptional circumstances" exception to section 242B(e). We hold that a motion to reopen that has not been intentionally delayed and has been filed prior to the date of voluntary departure, but not acted upon by the immigration authorities, falls within the "exceptional circumstances" exception, and thus we grant Barrios's Petition for Review.
In December of 1988, Miguel Castro Barrios, a native and citizen of Chile, was lawfully admitted to the United States as a visitor for pleasure for the period ending on June 27, 1989. At the time of his entry, Barrios was nine years of age. He has remained in the United States since that time, receiving the majority of his education in American schools.
On July 1, 1996, the then-Immigration and Naturalization Service ("INS")*fn3 served Barrios with an Order to Show Cause, charging him with deportability under section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B), as an overstay. After the conclusion of the deportation proceedings,*fn4 in which the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") found Barrios deportable as charged and denied his application for suspension of deportation, the BIA granted Barrios voluntary departure in lieu of deportation through April 26, 2003.
Barrios never left the United States, and on April 10, 2003, he married a United States citizen, Ms. Stacy Kuspiel. Five days later, on April 15, 2003, Kuspiel filed an Alien Relative Petition (Form I-130) on Barrios's behalf with the United States Bureau of Citizenship and Immigration Services, seeking to secure him permanent resident status as the spouse of a United States citizen. Thereafter, on April 18, 2003, eight days before his voluntary departure period expired, Barrios filed a motion to reopen his deportation proceedings with the BIA to allow for consideration (by the IJ) of his application for adjustment of status based upon his recent marriage.*fn5
When the BIA finally considered the motion to reopen on June 30, 2003, it denied the motion based on section 242B(e) of the INA, 8 U.S.C. § 1252b(e). That section prohibits an alien who has remained in the United States past the relevant period of voluntary departure from applying for an adjustment of status for a period of five years, absent a showing of exceptional circumstances for failing to depart. Inasmuch as Barrios remained in the United States beyond his voluntary departure date, the BIA determined that he was statutorily ineligible for an adjustment of status, notwithstanding his then-recent marriage to a United States citizen. See 8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir. 1998), which held that the pendency of a request for relief–in that case, a motion to reopen deportation proceedings filed just prior to the departure date–failed to constitute an "exceptional circumstance" justifying a failure to timely depart.*fn6
This Petition for Review ...