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 SUMMARY ORDER

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of New

York, on the 22nd 4 day of March, two thousand eleven.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _________________________________________

12

13 MELISSA DASHNIE MANIKAM,

14 Petitioner, 

15

16 v. 10-570-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Robert C. Ross, West Haven, Conn.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney General;

26 Mark C. Walters, Senior Litigation

27 Counsel; Glen T. Jaeger, Trial

28 Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, Washington, D.C.
1 Manikam 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

2 UPON DUE CONSIDERATION of this petition for review of a

3 Board of Immigration Appeals (“BIA”) decision, it is hereby

4 ORDERED, ADJUDGED, AND DECREED, that the petition for review

5 is DENIED. 

6 Melissa Dashnie Manikam, a native and citizen of South

7 Africa, seeks review of a January 21, 2010, decision of the

8 BIA affirming the April 22, 2008, decision of Immigration

9 Judge (“IJ”) Michael W. Straus denying her motion for a

10 continuance and granting her request for voluntary departure

11 with an alternate order of removal. In re Melissa Dashnie

12 Manikam, No. A088 190 058 (B.I.A. Jan. 21, 2010), aff’g No.

13 A088 190 058 (Immigr. Ct. Hartford Apr. 22, 2008). We assume

14 the parties’ familiarity with the underlying facts and

15 procedural history in this case. 

16 The sole claim that the petitioner raises on appeal is

17 that her decision to file a petition for review in this Court

18 should not have had the effect, pursuant to 8 C.F.R. §

19 1240.26(i), of terminating the BIA’s grant of voluntary

departure.1 20 She argues that the application of this
3

1 regulation to her case was impermissibly retroactive, because

2 she had applied for and accepted voluntary departure from the

3 IJ prior to the regulation’s effective date. The government

4 contends that we lack jurisdiction to hear the petitioner’s

5 appeal on this issue.

6 As a general matter, we lack jurisdiction to review any

7 regulation issued by the Attorney General that limits an

8 alien’s eligibility for voluntary departure pursuant to 8

9 U.S.C. § 1229c(e). However, we retain jurisdiction to review

10 constitutional claims and “questions of law,” 8 U.S.C. §

11 1252(a)(2)(D), although this exception does not extend to a

12 “legal argument that is so insubstantial and frivolous as to

13 be inadequate to invoke federal-question jurisdiction.”

14 Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).

15 Here, while we conclude that the petitioner’s retroactivity

16 claim is ultimately without merit, it is not so frivolous as

17 to deny us jurisdiction over the claim. See id. at 41 n.6 (“If

18 an asserted constitutional claim or question of law is

19 colorable, we have jurisdiction to review it, whether or not

20 it is ultimately found to be meritorious.”). 

21 Whether the challenged regulation has retroactive effect

22 is a legal question, which we review de novo, see Manzur v.
4

1 DHS, 494 F.3d 281, 288 (2d Cir. 2007). While Congress can

2 delegate to an agency the power to engage in retroactive

3 rulemaking through a sufficiently clear statement, see City of

4 New York v. Permanent Mission of India to United Nations, 618

5 F.3d 172, 195 (2d Cir. 2010), the regulation at issue here

6 specifically disclaims any retroactive effect, see Voluntary

7 Departure: Effect of a Motion to Reopen or Reconsider or a

8 Petition for Review, 73 Fed. Reg. 76,927, 76,936 (Dec. 18,

9 2008) (codified at 8 C.F.R. pts 1240 & 1241). The inquiry

10 thus becomes whether this regulation, despite claiming to

11 operate prospectively only, has retroactive effect in its

12 application in this case. A regulation has such an effect

13 “when it takes away or impairs vested rights acquired under

14 existing laws, or creates a new obligation, imposes a new

15 duty, or attaches a new disability, in respect to transactions

16 or considerations already past.” Samuels v. Chertoff, 550

17 F.3d 252, 260 (2d Cir. 2008) (quoting INS v. St. Cyr, 533 U.S.

18 289, 321 (2001)). In deciding whether a particular statute or

19 regulation acts retroactively, we are “informed and guided by

20 familiar considerations of fair notice, reasonable reliance,

21 and settled expectations.” St. Cyr, 533 U.S. at 321 (internal

22 quotation marks omitted).
5

1 As a preliminary matter, the challenged regulation does

2 not in fact prevent a petitioner in Manikam’s position from

3 bringing a petition for review of the BIA’s decision to this

4 Court while remaining entitled to a grant of voluntary

5 departure. It merely requires that, to pursue such an appeal,

6 the alien depart the United States within 30 days of filing

7 the petition for review and provide evidence to DHS that she

8 has departed and remains outside the United States while her

9 appeal is pending. See 8 C.F.R. § 1240.26(i); cf. Samuels,

10 550 F.3d at 260 (noting, in finding a regulation not to have

11 retroactive effect, that it did not make it impossible for an

12 immigrant to obtain a certain waiver but rather simply made it

13 more difficult).

14 Conditioning entitlement to voluntary departure on such

15 a restriction of the petitioner’s ability to seek review of a

16 BIA decision simply does not constitute an impairment of any

17 settled expectation on the petitioner’s part. As the

18 government notes, the decision to grant voluntary departure is

19 a discretionary one, such that a petitioner cannot ordinarily

20 be thought to have a settled expectation in receiving this

21 “discretionary form of relief.” Dada v. Mukasey, 554 U.S. 1,

22 8 (2008). Even after the petitioner was initially granted
6

1 voluntary departure by the IJ in April 2008, she cannot be

2 said to have a settled expectation of a stay of the order

3 while pursuing an appeal before this Court, as such a stay is

4 also a discretionary remedy that depends in part on the

5 petitioner’s likelihood of success on appeal. See Thapa v.

6 Gonzales, 460 F.3d 323, 329, 334 (2d Cir. 2006); see also Nken

7 v. Holder, 129 S. Ct. 1749, 1757 (2009) (“A stay . . . ‘is not

8 a matter of right . . . .’” (quoting Virginian Ry. Co. v.

9 United States, 272 U.S. 658, 672 (1926)).

10 Further, despite the petitioner’s contention, the

11 regulation at issue in this case “does not alter the quid pro

12 quo between the Government and the alien.” Dada, 554 U.S. at

13 21. Here, the government has not “received benefits without

14 costs,” id., but rather simply conditionally granted the

15 petitioner voluntary departure as an alternative to

16 deportation after both the IJ and BIA denied her request for

17 a continuance. There is simply no basis for concluding that

18 in deciding to accept voluntary departure under these

19 circumstances the petitioner was reasonably relying on a

20 continued ability to seek a stay of the voluntary departure

21 order while seeking judicial review of a BIA decision or that

22 her quid pro quo with the government was otherwise altered.
7

1 Finally, the BIA provided Manikam with fair notice that

2 filing a petition for review would terminate the agency’s

3 grant of voluntary departure. Whatever ambiguity existed as

4 to the new rule’s scope of application when it was originally

5 published for comment, at the time Manikam decided to bring a

6 petition for review to this Court, she had clear notice from

7 the text of the regulation as well as from the BIA decision

8 itself that in doing so she would lose her entitlement to

9 voluntary departure. In light of these considerations, it is

10 evident that 8 C.F.R. § 1240.26(i) did not have an

11 impermissible retroactive effect in its application to the

12 proceedings in Manikam’s case. 

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any stay of removal

15 that the Court previously granted in this petition is VACATED,

16 and any pending motion for a stay of removal in this petition

17 is DISMISSED as moot. Any pending request for oral argument in

18 this petition is DENIED in accordance with Federal Rule of

19 Appellate Procedure 34(a)(2) and Second Circuit Local Rule

20 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23