2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-25-2004

Reynoso-Lopez v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-3278

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1

PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

___________

No. 02-3278

___________

DEMETRIO REYNOSO-LOPEZ,

Petitioner

v.

JOHN ASHCROFT, Attorney General of

the United States of America,

Respondent

____________

On Petition for Review of an Order of

the Board of Immigration Appeals 

(INS No. A73-115-357)

____________

Submitted Under Third Circuit LAR

34.1(a) June 2, 2003

Before: BARRY, FUENTES, and

ROSENN, Circuit Judges.

(Filed: May 25, 2004)

Michael Morrone, Esq.

899 South College Mall Road

Suite 252

Bloomington, IN 27201

Counsel for Petitioner

John D. Williams, Esq.

Michael P. Lindemann, Esq.

Jocelyn L. Wright, Esq.

Erica A. Franklin, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

___________

OPINION OF THE COURT

___________

FUENTES, Circuit Judge.

The principal issue presented by

this appeal is whether this Court has the

authority to reinstate a grant of voluntary

departure and extend the departure date

previously ordered by an Immigration

Judge (“IJ”) and affirmed by the Board of

Immigration Appeals (“BIA”). In this

case, the petitioner, Demetrio ReynosoLopez (hereinafter “Reynoso”), seeks

review of the BIA’s decision affirming the

IJ’s denial of his application for asylum

and withholding of removal under the

Immigration and Nationality Act (“INA”),

8 U.S.C. §§ 1158(a) and 1253(h), and

protection under the Convention Against

Torture (“CAT”). In the alternative,

Reynoso asks us to reinstate the now

expired thirty-day voluntary departure

order granted to him by the IJ and

reinstated by the BIA under 8 U.S.C. §

1229c(b)(1). 
2

According to Reynoso, he failed to

depart voluntarily because he wanted to

stay in this country to appeal the BIA’s

decision of his request for asylum. He

contends that, as a matter of due process,

we have jurisdiction to reinstate the

expired voluntary departure date in the

event that we affirm the BIA’s denial of

his asylum claim. We disagree. Based on

the plain language of the immigration

statutes and regulations, which clearly

grant the power to reinstate or extend

voluntary departure solely to the Attorney

General and his delegates at the

Immigration and Naturalization Service

(“INS”), we conclude that we lack the

jurisdictional authority to reinstate or

extend a voluntary departure order. 

I.

Reynoso is a twenty-seven year old

native of Guatemala. He claims that when

he was ten years old, he was held in

confinement by Guatemalan guerrillas. He

claims to have escaped to Mexico, where

he lived for the next six years. In 1993, at

the age of sixteen, Reynoso entered the

United States without a visa.1 On March

19, 1994, he applied for asylum,

withholding of removal, and protection

under the CAT. In the alternative, he

requested voluntary departure. On

October 19, 1998, the INS charged him

with being removable for entering the

United States without having been

admitted or paroled. 

In removal proceedings on January

28, 1999, Reynoso conceded removability

and requested reconsideration of his

previous petition for asylum. On January

20, 2000, the IJ denied all relief, but

granted Reynoso voluntary departure until

March 6, 2000. On July 23, 2002, the BIA

affirmed the IJ without opinion. The BIA

also granted Reynoso voluntary departure

within thirty days of the date of its order. 

 Reynoso now appeals the decision

of the BIA. He raises two primary issues

on appeal: (1) whether the BIA erred in

affirming the IJ’s denial of his petition for

asylum; and (2) whether this Court has the

jurisdictional authority to reinstate an

expired grant of voluntary departure. 

We review the IJ’s decision to grant

or deny asylum for abuse of discretion. 

 8 U.S.C. § 1252(f)(4)(D). Thus, our

review of the IJ’s factual findings, which

were adopted by the BIA, is deferential.

Factual findings, such as credibility

determinations, are “conclusive unless any

reasonable adjudicator would be

compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B). We must

establish whether the BIA’s factual

determinations are supported by

substantial evidence. See Senathirajah v.

INS, 157 F.3d 210, 216 (3d Cir. 1998).

This standard is “even more deferential”

than the “clearly erroneous” standard, and

requires us to sustain an adverse credibility

determination “unless . . . no reasonable

person” would have found the applicant

incredible. See Concrete Pipe & Products

1

 Although the briefs describe him as

a twenty-three year old (Pet. Br. at 2), if he

was sixteen years old in 1993, he is

approximately twenty-seven years old now. 
3

of CA v. Construction Laborers Pension

Trust for Southern CA, 508 U.S. 602, 623

(1993). “Adverse credibility findings are

afforded substantial deference so long as

the findings are supported by specific

cogent reasons.” Gao v. Ashcroft, 299

F.3d 266, 276 (3d Cir. 2002) (citation

omitted). 

II.

In regard to Reynoso’s appeal from

the denial of his application for asylum,

the IJ, after assessing Reynoso’s

credibility, determined that Reynoso

“failed to establish a well-founded fear of

persecution as is necessary in order to be

statutorily eligible for asylum.” Because

Reynoso failed to establish eligibility for

asylum, he necessarily failed to meet the

more stringent standard for showing a

“clear probability of persecution” to be

eligible for withholding of deportation.

INS v. Stevic, 467 U.S. 407, 420 n.13

(1984). Similarly, based on the

respondent’s testimony and the evidence

of the record, he did not offer sufficient

evidence for withholding of removal under

the CAT. We have carefully reviewed the

entire record and find no basis for

disturbing the IJ’s thorough and wellreasoned oral opinion. We add only the

following to underscore our agreement

with that decision. 

At the hearing before the IJ,

Reynoso testified that, at the age of 10, he

and his family were captured by a band of

guerillas in Guatemala and taken from

their home town of Quilco to the guerillas’

encampment. He testified that about two

weeks after his capture, the family, which

apparently included both parents and two

sisters, escaped the encampment. In the

process, Reynoso became separated from

his family and managed to walk for three

days to Chiapas, Mexico, where he stayed

and worked for three years. Thereafter,

Reynoso moved to Mexico City, where he

lived for another three years, working in a

restaurant. At the age of 16, Reynoso left

Mexico City and crossed into the United

States. 

Reynoso’s parents, with whom he is

in regular contact, now live in Cumil,

Guatemala, a town approximately five

hours from Quilco on foot. None of them

knows the whereabouts of his younger

sisters. Although formal resistance to the

Guatemalan government has ended,

Reynoso stated that he believes former

guerillas are still active in Guatemala. He

testified that, if he returned, he feared

persecution by these guerillas for failing to

join their resistance in 1987. The basis for

this assertion was a list that he claimed the

guerillas have kept which contains names

of people whom they plan to target for

retribution. He believed that both he and

his father were on this list. He also stated

that he had acquaintances who, after

returning to Guatemala in 1997, were

killed by former guerillas seeking revenge.

In addition, Reynoso testified that his

parents’ crops had been destroyed,

ostensibly by former guerillas. 

In arriving at an adverse credibility

finding, the IJ pointed to several

deficiencies in Reynoso’s testimony.
4

Specifically, the IJ found questionable

Reynoso’s testimony relating to (1) a “list”

that the guerillas created in 1987; (2) his

belief that guerillas are still active in

Guatemala; (3) the guerillas’ capture of the

entire family, including his two younger

sisters; and (4) his escape at the age of 10

and subsequent journey through Mexico

and into the United States. 

The IJ found this testimony

incredible for several reasons. First, he

doubted that Reynoso could have escaped

the guerilla camp by himself on foot and

then supported himself in Mexico from

ages ten to sixteen. Second, he did not

find that Reynoso’s account provided a

plausible basis for fearing a threat by

former guerillas. Third, he took judicial

notice of changed country conditions in

Guatemala, finding that the guerillas had

disbanded. Therefore, the IJ held that

Reynoso had failed to show either past

persecution or a well-founded fear of

future persecution, as is required to

establish statutory eligibility for asylum.

Moreover, the IJ found that any harm

Reynoso suffered was not “on account of”

any of the five grounds enumerated by the

INA (i.e., race, religion, nationality,

membership in a particular social group, or

political opinion). Instead, the guerillas

mistreated his family in an attempt to

recruit the family to join their rebellion.

The IJ analyzed each of

these areas of Reynoso’s testimony and

supplied specific reasons for his adverse

credibility findings. In particular, the IJ

found that Reynoso’s testimony was

exaggerated, embellished, and not

particularly believable. The IJ accordingly

concluded that Reynoso had not met his

burden to establish a well-founded fear of

persecution if returned to Guatemala.

We find no abuse of discretion in

any of the IJ’s credibility determinations.

We accordingly conclude that substantial

evidence supports the IJ’s determination

that Reynoso failed to support his asylum,

withholding of deportation and CAT

claims with credible evidence. 

III.

A.

We now turn to the question of

whether we can reinstate Reynoso’s

voluntary departure date. Under certain

circumstances, the Attorney General will

grant an alien voluntary departure as an

alternative to deportation. This allows the

alien to depart the United States at his or

her own expense without being subject to

the penalties and restrictions that

deportation imposes. An alien who is

deported may not reenter the United States

for ten years unless the Attorney General

permits it. However, an alien who departs

voluntarily is not bound by this restriction

and may reenter the United States once he

or she has obtained proper documentation.

See Ramsay v. INS, 14 F.3d 206, 211 n.7

(4th Cir. 1994). As an alternative to

granting his petition for asylum, Reynoso

requests that we extend the thirty-day

voluntary departure order granted him by

the IJ and reinstated by the BIA. Before

his voluntary departure period had expired,

Reynoso timely appealed to this Court.

However, his departure period ended
5

before appellate review of his asylum

application was completed. 

Reynoso’s request raises an issue of

first impression in our Circuit: whether we

have the authority to extend a voluntary

departure order pending our review of a

denial of a request for asylum. Several

other courts of appeals have considered

this question and are divided as to whether

this authority exists under the current INS

regulations. These regulations state that

the “[a]uthority to extend the time within

which to depart voluntarily specified

initially by an immigration judge or the

Board is only within the jurisdiction of the

district director, the Deputy Executive

Associate Commissioner for Detention and

Removal, or the Director of the Office of

Juvenile Affairs. . . .” 8 C.F.R. §

1240.26(f). The Government argues that

we do not have jurisdiction to extend the

voluntary departure period because the

language of the regulation makes clear that

the power to grant, extend or reinstate

voluntary departure is within the sole

authority of the Attorney General and his

delegates at the INS and Executive Office

for Immigration Rev iew, w hich

encompasses the IJs and the BIA. Resp.

Br. at 28-30. Reynoso counters that due

process requires that this Court have the

power to extend voluntary departure, or

else his decision to appeal the BIA’s denial

of his asylum application will have caused

him to lose “the privilege of voluntary

departure.” Pet. Br. at 16 (quoting Matter

of Villeagas-Aguirre, 13 I. & N. Dec. 139

(BIA 1969)). We hold that because

Congress has not provided statutory

authority for appellate courts to reinstate or

extend the voluntary departure period

prescribed by an IJ or the BIA, this Court

lacks jurisdiction to reinstate Reynoso’s

voluntary departure period. 

B.

In 1996, Congress passed the Illegal

Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). Under the

plain language of the INA, as amended by

IIRIRA, the authority to reinstate or extend

voluntary departure falls solely within the

discretion of the Attorney General and his

delegates at the INS. These delegates,

including the IJ and BIA, granted Reynoso

a thirty-day voluntary departure period.

Any extension of this time period would

clearly conflict with the explicit language

of IIRIRA, which provides that only the

district director may determine the time

period for voluntary departure. 

 The Immigration Regulations, as

amended by IIRIRA, state:

Authority to extend the time within which

to depart voluntarily specified initially by

an immigration judge or the Board is only

within the jurisdiction of the district

director, the Deputy Executive Associate

Commissionerfor Detention and Removal,

or the Director of the Office of Juvenile

Affairs. An immigration judge or the

Board may reinstate voluntary departure in

a removal proceeding that has been

reopened for a purpose other than solely

making an application for voluntary

departure if reopening was granted prior to
6

the expiration of the original period of

voluntary departure. 

8 C.F.R. § 1240.26(f) (emphasis added). 

Therefore, under IIRIRA, the

executive branch, not the judiciary, is

given the sole authority to determine when

an alien must depart. Further, IIRIRA

specifically limits the role of the courts as

to when an alien, under an order of

voluntary departure, must leave the

country. Id. For example, under 8 U.S.C.

§ 1229c(f), “[n]o court shall have

jurisdiction over an appeal from denial of

a request for an order of voluntary 

departure . . . , nor shall any court order a

stay of an alien’s removal pending

consideration of any claim with respect to

voluntary departure.” Additionally, “no

court shall have jurisdiction to review . . .

any judgment regarding the granting of

relief” under section 1229c. 8 U.S.C. §

1252(a)(2)(B)(i). Reynoso is not

appealing a denial of a request for

voluntary departure or a claim with respect

to voluntary departure. Thus, these

provisions do not divest this Court of

jurisdiction in this case. However, they do

underscore the fact that, in enacting

IIRIRA, Congress intended to vest the

right to set deadlines for an alien’s

voluntary departure solely with the

executive branch, and not the courts. See

Zazueta-Carrillo v. Ashcroft, 322 F.3d

1166, 1172 (9th Cir. 2003) (“Neither the

statute nor the regulations give courts any

designated role in this process of setting

the deadline for departure.”). In granting

the authority to set voluntary departure

dates to the executive branch, it is fair to

say that Congress intended the authority to

be exclusive. 

Our inability to grant Reynoso the

relief he seeks does not leave him without

a remedy. Under IIRIRA, Reynoso may

apply for reinstatement or extension of

voluntary departure directly to the district

director. See 8 C.F.R. § 1244.2(f)(2);

Castaneda, 23 F.3d at 1582. Seeking relief

from the district director is, in fact, the

procedure that Congress intended for a

petitioner such as Reynoso to follow.

Indeed, in this case, the BIA informed

Reynoso that any extension of the

voluntary departure time period “may be

granted by the district director,” thus

putting him on notice that any relief from

the voluntary departure set by the BIA

would have to be granted administratively,

not judicially. BIA Order at 2. Further,

this statement by the BIA shows that the

BIA has interpreted the INA as giving the

district director sole authority to set and

extend voluntary departure periods. Even

if one were to argue that the statutory

language were unclear, we would still be

required to give deference to the BIA’s

interpretation of IIRIRA. Chevron U.S.A.,

Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984); see

also Zazueta-Carrillo, 322 F.3d at 1173

(same); see also Faddoul v. INS, 37 F.3d

185, 192, 191-93 (5th Cir. 1995) (stating

that there was “[n]o reason to augment the

administrative remedy which the alien had
7

neglected,” and denying reinstatement of

voluntary departure because the petitioner

did not apply to the BIA or district director

for an extension and waited until the last

day of his departure period before filing

his appeal (citing Farzad v. INS, 808 F.2d

1071, 1072 (5th Cir. 1987))); Alsheweikh

v. INS 990 F.2d 1025, 1028 (8th Cir.

1993) (declining consideration of the

petitioner’s application for reinstatement

of voluntarily departure, and stating that

the petitioner “may request this relief from

the INS”). 

Further, under IIRIRA, appellate

courts retain jurisdiction to review an

alien’s appeal after he voluntarily departs.

8 U.C.C. § 1252(b)(3)(B). This remedy

was not available in the pre-IIRIRA

regime because, under the former INA, an

appellate court lost jurisdiction once a

petitioner left the country. See 8 U.S.C. §

1105a(c) (1994). Thus, before IIRIRA, an

alien was forced to choose between

exercising his right to appeal and taking

advantage of voluntary departure. Because

IIRIRA eliminates this concern, Reynoso

was free to voluntarily depart and still

pursue a petition for review, preserving his

appellate rights. See Zazueta-Carrillo, 322

F.3d at 1171; Moore v. Ashcroft, 251 F.3d

919 (11th Cir. 2001); Tapia Garcia v. INS,

237 F.3d 1216 (10th Cir. 2001). 

C.

A number of circuits addressing the

voluntary departure issue have similarly

found that they lack jurisdiction to extend

a voluntary departure order. In Nkacoang

v. INS, the Eleventh Circuit stressed the

fact that Congress has not empowered the

courts of appeals to reinstate voluntary

departure orders that have expired. 83

F.3d 353, 357 (11th Cir. 1996). The Court

held that absent explicit Congressional

empowerment to act, an appellate court

lacks the jurisdictional authority to extend

or reinstate voluntary departure. Similarly,

in Castaneda v. INS, the Tenth Circuit held

that it lacked the authority to review a

request for reinstatement of a voluntary

departure order, stating that “none of the

pertinent statutes . . . provide any basis

whatsoever for this court to assume

authority for affording the discretionary,

administrative relief sought by petitioner.”

23 F.3d 1576, 1580 (10th Cir. 1994). The

Tenth Circuit went on to reiterate that “[i]f

an act can be performed by a [federal]

court, it is because it was permitted and

not because it was not prohibited by

Congress. Federal courts operate only in

the presence rather than the absence of

statutory authority.” Id. at 1580 (internal

citation and quotations omitted). 

In Kaczmarczyk v. INS, the

Seventh Circuit affirmed an order of

deportation and held that the Court lacked

jurisdiction to reinstate or extend voluntary

departure, thus requiring the alien to file a

motion with the INS district director

requesting reinstatement of voluntary

departure. 933 F.2d 588, 598 (7th Cir.

1991), cert. denied, 502 U.S. 981 (1991).

The Seventh Circuit did note its concern

that the INS might use its discretionary

authority to discourage petitioners from

seeking judicial review. The Court stated

that “[d]eportable aliens should not be
8

faced with the choice between enjoying the

voluntary departure privilege and securing

judicial review of Board determinations;”

thus “[s]hould it come to our attention that

the INS is wielding its discretion to

withhold voluntary departure [in order] to

deter applicants from seeking review of

BIA decisions, our scrutiny of that

discretionary exercise might expand.” Id.

(citation omitted). However, as discussed

above, the passage of IIRIRA has

eliminated this concern as aliens may now

pursue their appeals from abroad, avoiding

their having to choose between exercising

their right to appeal and taking voluntary

departure. 

The Ninth Circuit also addressed

this issue in Zazueta-Carrillo v. Ashcroft,

in which it overruled its previous decision

in Contreras-Aragon v. INS and held that,

in light of IIRIRA, appellate courts lack

authority to reinstate voluntary departure.

322 F.3d at 1172. In Contreras-Aragon v.

INS, the Ninth Circuit had held that when

an appeals court otherwise has jurisdiction

over a final order of deportation it may

reinstate a grant of voluntary departure

originally entered by the IJ and BIA. 852

F.2d 1088, 1092-93 (9th Cir. 1988). After

IIRIRA, however, the Ninth Circuit

reconsidered its decision in ContrerasAragon and concluded that a petitioner’s

voluntary departure period begins when an

IJ or the BIA enters its order granting

voluntary departure. See Zazueta-Carrillo,

322 F.3d at 1168. The Zazueta-Carrillo

Court examined the rationales on which

Contreras-Aragon relied, and concluded

that these rationales were no longer valid

in the context of IIRIRA. Examining the

relevant immigration statutes and

regulations post-IIRIRA, the Ninth Circuit

held that appellate courts lack the authority

to extend the time period for voluntary

departure, and that aliens granted

voluntary departure must continue their

appeals from abroad. Id.

While other circuits have taken the

opposite stance, holding that they have

authority to reinstate voluntary departure,

these holdings predate IIRIRA. For

example, the Fourth Circuit in Ramsay v.

INS held that an appellate court should

extend voluntary departure when (1) it

finds that the INS has used its discretion to

withhold voluntary departure in order to

deter applicants from seeking judicial

review of BIA decisions; and (2) the INS

does not indicate that it will present the

district director with any other reason for

refusing reinstatement. 14 F.3d at 213

(internal quotation marks and citations

omitted). Similarly, in Umanzor-Alvarado

v. INS, the First Circuit held that it had the

authority to extend voluntary departure

when the INS offered no evidence

suggesting that the alien had become

ineligible for departure in the interim

between the BIA’s opinion and the

appellate court’s opinion. 896 F.2d 14, 16

(1st Cir. 1990); see also Aiyadurai v. INS,

683 F.2d 1195, 1201 (8th Cir. 1982)

(restoring voluntary departure status

despite the fact that this issue was not

raised on appeal, and noting that the

petitioner “qualified for voluntary status at

the . . . deportation hearing and there is no

indication in the record that she does not
9

continue to qualify”). 

The arguments presented by the

Fourth and First Circuits, in pre-IIRIRA

decisions, are unpersuasive in light of the

plain language of the INA, as amended by

IIRIRA. As discussed above, the Fourth

Circuit’s concern that the INS may use its

discretion over voluntary departure in

order to deter judicial review of BIA

decisions was eliminated by IIRIRA’s

provision that appellate courts retain

jurisdiction over an alien’s appeal after he

has departed the country. 

In addition, both the Fourth and

First Circuits conclude that there is no

reason for an appellate court not to toll the

initial departure period granted by an IJ or

the BIA when the INS has offered no

evidence to suggest that the alien had

become ineligible for voluntary departure

during the course of the appeal. See

Ramsay v. INS, 14 F.3d at 213; UmanzorAlvarado v. INS, 896 F.2d at 16. This

approach, however, conflicts with the

specific procedures provided for in the

statute. Whether the relief sought by

Reynoso in this appeal is characterized as

a “reinstatement and extension” of the

voluntary departure period or as a

“tolling,” the effect is the same. See

Zazueta-Carrillo, 322 F.3d at 1176

(Berzon, J., concurring). The INA is clear

that this type of relief may only be sought

from the district director. Further, as the

Tenth Circuit points out, the approach of

the Ramsay and Umanzor-Alvarado Courts

misplaces the burden of persuasion in a

petition for extension of voluntary

departure, as the INS does not bear the

burden of showing an alien to be ineligible

for voluntary departure. On the contrary,

“it is the alien who bears the burden of

proving statutory eligibility for this form

of relief and demonstrating that it is

warranted.” Castaneda, 23 F.3d at 1582

(citing Rivera-Zurita v. INS, 946 F.2d 118,

120 (10th Cir. 1991) (internal quotations

omitted)). 

 Finally, the policy considerations

surrounding voluntary departure support

our conclusion that Congress did not

intend for appellate courts to have

authority to extend voluntary departure

orders. These considerations were stated

by the Ninth Circuit as follows: 

The purpose of authorizing

voluntary departure in lieu of

deportation is to effect the alien’s

prompt departure without further

trouble to the Service. Both the

aliens and the Service benefit

thereby. But if the alien does not

depart promptly, so that the Service

becomes involved in further and

more costly procedures by his

attempts to continue his illegal stay

here, the original benefit to the

Service is lost. And if, after years

of delay, he is again rewarded with

the opportunity for voluntary

departure which he has previously

spurned, what incentive is there for

any alien similarly circumstanced to

depart promptly when first given

the opportunity? 
10

See Zazueta-Carrillo, 322 F.3d at 1173

(quoting Ballenilla-Gonzalez v. INS, 546

F.2d 515, 521 (2d Cir. 1976)). If voluntary

departure periods could be extended until

after the completion of an appeal, it would

discourage prompt departure and even

encourage frivolous appeals in an attempt

to continue extending an alien’s departure

date. Id. at 1173-74. This result would

conflict with the INS’ goal of having

expeditious removal proceedings. This

goal underlies voluntary departure, and is

reflected in the clear procedures for

extending voluntary departure set out by

Congress in IIRIRA. 

IV.

The BIA’s order affirming the IJ’s

denial of Reynoso’s application for

asylum, withholding of removal, and

protection under the Convention Against

Torture is affirmed. Under the INA, we

lack jurisdiction to reinstate the IJ’s grant

of voluntary departure and to extend

Reynoso’s date for departure.