10-570-ag Manikam v. Holder BIA Straus, IJ A088 190 058 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR**  **AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF**  **APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN**  **ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUM** **MARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of New** 3 **York, on the 22 nd** **day of March, two thousand eleven.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_________________________________________** 11 12 **MELISSA DASHNIE MANIKAM,** 13 Petitioner**,** 14 15 **v. 10-570-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Robert C. Ross, West Haven, Conn.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 25 **Mark C. Walters, Senior Litigation** 26 **Counsel; Glen T. Jaeger, Trial** 27 **Attorney, Office of Immigration** 28 **Litigation, United States Department** 29 **of Justice, Washington, D.C.** 301Manikam abandoned in her opening brief the claim that presumably prompted this appeal, that the agency’s denial of her motion for a continuance constituted an abuse of discretion, conceding that it would be frivolous to maintain the argument on appeal. 2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Melissa Dashnie Manikam, a native and citizen of South 6 Africa, seeks review of a January 21, 2010, decision of the 7 BIA affirming the April 22, 2008, decision of Immigration 8 Judge (“IJ”) Michael W. Straus denying her motion for a 9 continuance and granting her request for voluntary departure 10 with an alternate order of removal. In re Melissa Dashnie 11 Manikam , No. A088 190 058 (B.I.A. Jan. 21, 2010), aff’gNo. 12 A088 190 058 (Immigr. Ct. Hartford Apr. 22, 2008). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 The sole claim that the petitioner raises on appeal is 16 that her decision to file a petition for review in this Court 17 should not have had the effect, pursuant to 8 C.F.R. § 18 1240.26(i), of terminating the BIA’s grant of voluntary 19 departure. 1She argues that the application of this 203 regulation to her case was impermissibly retroactive, because 1 she had applied for and accepted voluntary departure from the 2 IJ prior to the regulation’s effective date. The government 3 contends that we lack jurisdiction to hear the petitioner’s 4 appeal on this issue. 5 As a general matter, we lack jurisdiction to review any 6 regulation issued by the Attorney General that limits an 7 alien’s eligibility for voluntary departure pursuant to 8 8 U.S.C. § 1229c(e). However, we retain jurisdiction to review 9 constitutional claims and “questions of law,” 8 U.S.C. § 10 1252(a)(2)(D), although this exception does not extend to a 11 “legal argument that is so insubstantial and frivolous as to 12 be inadequate to invoke federal-question jurisdiction.” 13 Barco-Sandoval v. Gonzales , 516 F.3d 35, 40 (2d Cir. 2008). 14 Here, while we conclude that the petitioner’s retroactivity 15 claim is ultimately without merit, it is not so frivolous as 16 to deny us jurisdiction over the claim. See id. at 41 n.6 (“If 17 an asserted constitutional claim or question of law is 18 colorable, we have jurisdiction to review it, whether or not 19 it is ultimately found to be meritorious.”). 20 Whether the challenged regulation has retroactive effect 21 is a legal question, which we review de novo, see Manzur v. 224 DHS , 494 F.3d 281, 288 (2d Cir. 2007). While Congress can 1 delegate to an agency the power to engage in retroactive 2 rulemaking through a sufficiently clear statement, see City of 3 New York v. Permanent Mission of India to United Nations , 618 4 F.3d 172, 195 (2d Cir. 2010), the regulation at issue here 5 specifically disclaims any retroactive effect, seeVoluntary 6 Departure: Effect of a Motion to Reopen or Reconsider or a 7 Petition for Review, 73 Fed. Reg. 76,927, 76,936 (Dec. 18, 8 2008) (codified at 8 C.F.R. pts 1240 & 1241). The inquiry 9 thus becomes whether this regulation, despite claiming to 10 operate prospectively only, has retroactive effect in its 11 application in this case. A regulation has such an effect 12 “when it takes away or impairs vested rights acquired under 13 existing laws, or creates a new obligation, imposes a new 14 duty, or attaches a new disability, in respect to transactions 15 or considerations already past.” Samuels v. Chertoff , 550 16 F.3d 252, 260 (2d Cir. 2008) (quoting INS v. St. Cyr, 533 U.S. 17 289, 321 (2001)). In deciding whether a particular statute or 18 regulation acts retroactively, we are “informed and guided by 19 familiar considerations of fair notice, reasonable reliance, 20 and settled expectations.” St. Cyr, 533 U.S. at 321 (internal 21 quotation marks omitted). 225 As a preliminary matter, the challenged regulation does 1 not in fact prevent a petitioner in Manikam’s position from 2 bringing a petition for review of the BIA’s decision to this 3 Court while remaining entitled to a grant of voluntary 4 departure. It merely requires that, to pursue such an appeal, 5 the alien depart the United States within 30 days of filing 6 the petition for review and provide evidence to DHS that she 7 has departed and remains outside the United States while her 8 appeal is pending. See8 C.F.R. § 1240.26(i); cf. Samuels , 9 550 F.3d at 260 (noting, in finding a regulation not to have 10 retroactive effect, that it did not make it impossible for an 11 immigrant to obtain a certain waiver but rather simply made it 12 more difficult). 13 Conditioning entitlement to voluntary departure on such 14 a restriction of the petitioner’s ability to seek review of a 15 BIA decision simply does not constitute an impairment of any 16 settled expectation on the petitioner’s part. As the 17 government notes, the decision to grant voluntary departure is 18 a discretionary one, such that a petitioner cannot ordinarily 19 be thought to have a settled expectation in receiving this 20 “discretionary form of relief.” Dada v. Mukasey, 554 U.S. 1, 21 8 (2008). Even after the petitioner was initially granted 226 voluntary departure by the IJ in April 2008, she cannot be 1 said to have a settled expectation of a stay of the order 2 while pursuing an appeal before this Court, as such a stay is 3 also a discretionary remedy that depends in part on the 4 petitioner’s likelihood of success on appeal. See Thapa v. 5 Gonzales , 460 F.3d 323, 329, 334 (2d Cir. 2006); see also Nken 6 v. Holder, 129 S. Ct. 1749, 1757 (2009) (“A stay . . . ‘is not 7 a matter of right . . . .’” (quoting Virginian Ry. Co. v. 8 United States , 272 U.S. 658, 672 (1926)). 9 Further, despite the petitioner’s contention, the 10 regulation at issue in this case “does not alter the quid pro 11

quobetween the Government and the alien.” Dada , 554 U.S. at 12 21. Here, the government has not “received benefits without 13 costs,” id. , but rather simply conditionally granted the 14 petitioner voluntary departure as an alternative to 15 deportation after both the IJ and BIA denied her request for 16 a continuance. There is simply no basis for concluding that 17 in deciding to accept voluntary departure under these 18 circumstances the petitioner was reasonably relying on a 19 continued ability to seek a stay of the voluntary departure 20 order while seeking judicial review of a BIA decision or that 21 her quid pro quowith the government was otherwise altered. 227 Finally, the BIA provided Manikam with fair notice that 1 filing a petition for review would terminate the agency’s 2 grant of voluntary departure. Whatever ambiguity existed as 3 to the new rule’s scope of application when it was originally 4 published for comment, at the time Manikam decided to bring a 5 petition for review to this Court, she had clear notice from 6 the text of the regulation as well as from the BIA decision 7 itself that in doing so she would lose her entitlement to 8 voluntary departure. In light of these considerations, it is 9 evident that 8 C.F.R. § 1240.26(i) did not have an 10 impermissible retroactive effect in its application to the 11 proceedings in Manikam’s case. 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of removal 14 that the Court previously granted in this petition is VACATED, 15 and any pending motion for a stay of removal in this petition 16 is DISMISSED as moot. Any pending request for oral argument in 17 this petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2) and Second Circuit Local Rule 19 34.1(b). 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23