2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-2011

Patel v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3861

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Patel v. Atty Gen USA" (2011). 2011 Decisions. Paper 934.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/934
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________

No. 08-3861

_________

VIDHYABEN PATEL, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, 

 Respondent

_______

On Petition for Review of an Order

of the Board of Immigration Appeals

(No. A70-898-144)

Immigration Judge: Hon. Eugene Pugliese

______

 Argued April 25, 2011

Before: SLOVITER, GREENAWAY, JR., Circuit Judges

and POLLAK,* District Judge

(Filed: July 6, 2011)

______

Frank B. Lindner (Argued)

Lindner & Lindner

Yardley, PA 19067

Attorney for Petitioner

John C. Cunningham, I

 * Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern 

District of Pennsylvania, sitting by designation.
2

Timothy B. Stanton

Briena L. Strippoli (Argued)

United States Department of Justice

Office of Immigration Litigation, Civil Division

Washington, DC 20044

Attorneys for Respondent

____________

OPINION

____________

SLOVITER, Circuit Judge.

This appeal requires us to decide whether the Board of Immigration Appeals 

(“BIA”) abused its discretion in denying Vidhyaben Patel’s motion to reopen to apply for 

adjustment of status on the basis that Patel failed to explicitly request withdrawal of 

voluntary departure. 

I.

Patel, a native and citizen of India, entered the United States in 1993 on a nonimmigrant visitor visa and overstayed. In proceedings before the Immigration Judge 

(“IJ”), she conceded removability, withdrew a previously asserted claim for asylum, and 

applied for cancellation of removal under the Immigration and Nationality Act (“INA”) § 

240A(b), 8 U.S.C. § 1229b(b). The IJ subsequently denied cancellation of removal.1

 1 Although the IJ found Patel to be a person of good moral character and that she 

had resided in the United States continuously for the requisite time period, the IJ 

concluded that she had not proved that her qualifying family members (two United 

States citizen children, then ages 12 and 7) would suffer extreme or unusual hardship 

as a result of her deportation. 

 In 
3

lieu of deportation, the IJ granted Patel’s request for voluntary departure under INA § 

240B(b), 8 U.S.C. § 1229c(b), for the maximum period of sixty days. 

Patel timely appealed. On May 22, 2008, the BIA affirmed. The BIA advised 

Patel that she had until July 21, 2008, to depart voluntarily, and that failure to do so 

before that date would subject her to a civil fine and render her ineligible for adjustment 

of status under INA § 245, 8 U.S.C. § 1255, for a period of ten years.

On July 14, 2008, one week before the expiration of the voluntary departure 

period, Patel, with the assistance of new counsel, filed a motion to reopen with the BIA 

under INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). In the motion, Patel requested that the 

BIA remand to the IJ so that she could apply for adjustment of status under INA § 245 

due to an approved relative petition that Patel’s United States citizen father had submitted 

on her behalf. 

On August 29, 2008, five weeks after the voluntary departure period expired, the 

BIA denied Patel’s motion to reopen. Citing the Supreme Court’s recent decision in 

Dada v. Mukasey, 554 U.S. 1 (2008), the BIA concluded that because Patel did not move 

the Board to withdraw her grant of voluntary departure prior to expiration, under INA § 

240B(d)(1)(B), 8 U.S.C. § 1229c(d)(1)(B), she is prima facie ineligible for the relief 

 
4

sought. Aside from noncompliance with the voluntary departure period, the BIA cited no 

other circumstances that would render Patel ineligible for adjustment.2

Patel timely petitions for review of the order denying her motion to reopen. 

 

II.

This court has jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s denial 

of a motion to reopen for abuse of discretion, and will overturn only if it was arbitrary, 

irrational, or contrary to law. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). We 

review the BIA’s legal conclusions de novo and factual determinations under a 

substantial evidence standard. Id. 

III.

As a preliminary matter, we reject Patel’s argument that she never established her 

eligibility for voluntary departure. Patel did not challenge the IJ’s grant of voluntary 

departure before the IJ or the BIA. Consequently, the claim has been waived.3

 2 As a third preference applicant with a priority date of April 23, 2001, a visa is 

immediately available to Patel. See Department of State Visa Bulletin, Vol. IX, No. 

32 (May 2011). The Government stated at oral argument that Patel did not have a 

visa available to her at the time she filed the motion to reopen. However, it appears 

from the record that Patel’s father previously submitted a visa petition on Patel’s 

behalf with a priority date of August 30, 1991. The effect of the earlier petition was 

not discussed by the parties. Regardless, given that the most recent priority date is 

now current, any dispute on this issue is moot.

 See 

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (“an alien is required to 

3 In any event, Patel’s argument lacks record support. Patel had requested 

voluntary departure in the course of her removal hearing and the IJ found that Patel 

qualified for that relief based on her testimony. See A.R. at 32, 59, 71-72, 97-99. 
5

raise and exhaust his or her remedies as to each claim or ground for relief if he or she is 

to preserve the right of judicial review of that claim”). Accordingly, assuming Patel was 

properly granted voluntary departure, we turn to consideration of whether the BIA abused 

its discretion in denying Patel’s motion to reopen on the basis that Patel failed to 

explicitly request withdrawal of voluntary departure.

Prior to the Supreme Court’s decision in Dada, the filing of a motion to reopen 

within the time allowed for voluntary departure automatically tolled the voluntary 

departure period, thereby allowing the alien to remain in the United States until after the 

IJ or the BIA adjudicated the motion. See Kanivets v. Gonzales, 424 F.3d 330, 335 (3d 

Cir. 2005) (timely motion to reopen filed prior to expiration of voluntary departure period 

served to toll time allotted to voluntarily depart). Thus, if Patel had filed her motion to 

reopen prior to Dada, the voluntary departure period would have been tolled 

automatically. 

On June 16, 2008, the Supreme Court in Dada held that the filing of a motion to 

reopen does not automatically toll the period of time granted for voluntary departure, 

which effectively overruled our holding in Kanivets on this point. But, “to safeguard the 

right to pursue a motion to reopen for voluntary departure recipients,” the Supreme Court 

also held that “the alien must be permitted to withdraw, unilaterally, a voluntary 

departure request before expiration of the departure period, without regard to the 

underlying merits of the motion to reopen.” Dada, 554 U.S. at 21. The Supreme Court 

in Dada, however, “did not answer the question of precisely what an alien must do to 
6

withdraw from voluntary departure.” Mahmood v. Holder, 570 F.3d 466, 470 (2d Cir. 

2009). The INA likewise provides no guidance; both the statute and the legislative 

history are silent with respect to the impact of a voluntary departure agreement on the 

statutory right to file a motion to reopen. See Dada, 554 U.S. at 14-15. 

After the Dada decision, but on the basis of a proposed rule that preceded Dada,

the Executive Office for Immigration Review (“EOIR”) issued a rule (“Rule”) 

establishing that the filing of a motion to reopen automatically terminates voluntary 

departure. See Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a 

Petition for Review, 73 Fed. Reg. 76,927, 76,937 (Dec. 18, 2008) (codified at 8 C.F.R. § 

1240.26(e)(1)). The Rule took effect on January 20, 2009, and applies prospectively 

only. Id. at 76,936. Thus, if Patel had filed her motion after the Rule took effect, her

request for and approval for voluntary departure would have terminated automatically 

and would not pose a bar to adjustment. Unfortunately, Patel filed her motion during the 

seven-month window between the Supreme Court’s decision in Dada and the effective 

date of the EOIR Rule. This left Patel without the benefit of a bright-line rule. 

The Government argues that Dada put Patel on notice that if she failed to file a 

motion with the BIA to withdraw voluntary departure, after the voluntary departure 

period expired, she would be ineligible for adjustment. On this point, the Government is 

not mistaken. However, the Government fails to acknowledge that Dada did not put 

Patel on notice regarding precisely what she was required to do to effectuate withdrawal. 

We have been unable to find any precedential decisions from the BIA or the courts of 
7

appeals, or any agency regulation or practice advisory, that provided guidance to aliens 

and their attorneys with respect to withdrawal of voluntary departure between the 

decision in Dada and the effective date of the EOIR Rule.4

Additionally, despite language in the Rule indicating it applies prospectively only, 

the BIA has acknowledged that confusion may arise from somewhat contradictory 

language in the Supplementary Information to the Rule stating that the Rule “will apply 

to all cases pending before EOIR, or adjudicated by EOIR, on the effective date of this 

rule and any cases that later come before it.” Matter of Velasco, 25 I. & N. Dec. 143, 146 

(BIA 2009) (quoting 73 Fed. Reg. at 76,936).

 

5

 4 The Government misplaces reliance on this court’s decision in Sandie v. Att'y 

Gen., 562 F.3d 246 (3d Cir. 2009). Sandie held that a request to stay voluntary 

departure is not implicit in a motion to stay removal given the differing equities

involved and, as such, an alien must expressly ask for a stay of voluntary departure 

before its expiration or request withdrawal. Sandie was decided after the EOIR Rule 

went into effect and does not purport to apply in the motion to reopen context. To 

hold Sandie requires that withdrawal of voluntary departure request be explicit in the 

context of a motion to reopen would be in direct conflict with the EOIR Rule 

providing for automatic termination upon the filing of such a motion. Regardless, any 

rule set forth by Sandie, decided in 2009, was not in effect at the time Patel filed her 

motion to reopen and cannot be retroactively applied.

 A case on appeal to the BIA, as Patel’s 

was at the time, is considered to be “pending before EOIR.” Id. Moreover, the Supreme 

5 This court takes judicial notice that the American Immigration Law Foundation 

(“AILF,” now the American Immigration Council), issued a preliminary analysis of 

Dada that demonstrates confusion even among experts in the profession. In the 

analysis, AILF advised that because it is “unclear from [Dada] whether the filing of a 

motion to reopen will be construed as a request to withdraw the voluntary departure . . 

. individuals may consider explicitly requesting withdrawal . . . .” Dada v. Mukasey 

Q&A: Preliminary Analysis and Approaches to Consider, AILF (June 17, 2008), 

http://www.ailf.org/lac/chdocs/Dada-FAQ.pdf (last visited June 28, 2011).
8

Court in Dada analyzed the INA with the then-proposed Rule in mind, stating that the 

Rule “warrants respectful consideration.” 554 U.S. at 21 (quotation omitted). The BIA’s

precedential opinion in Matter of Velasco recognizing this confusion and reiterating that 

the Rule applies prospectively only was not issued until more than one year after Patel 

filed her motion to reopen and the BIA adjudicated the same. 

The rationale behind prospective application of the Rule does not apply to Patel. 

The Supplementary Information issued with the Rule indicates that the principal reason it 

does not apply retroactively is “because aliens would not otherwise receive notice that the 

filing of their motions would automatically terminate their voluntary departure.” 73 Fed. 

Reg. at 76,936. In other words, retroactive application would be unfair for those aliens 

who did not want to forfeit their right to voluntarily depart. This concern is not relevant 

to Patel who has indicated a strong intention to forgo the benefit. Given the confusion 

around the Rule discussed above and the lack of guidance, it was reasonable for someone 

in Patel’s position to think that the BIA – consistent with the proposed Rule given 

“respectful consideration” by the Supreme Court – would construe her motion to reopen 

as an automatic termination of a voluntary departure grant.6

 6 This is not to say that Patel’s counsel is without fault. To the contrary, the 

quality of Patel’s representation before the immigration court and on appeal leaves 

something to be desired. Out of an abundance of caution, more competent counsel, 

with little added effort, would have avoided any ambiguity by explicitly requesting 

withdrawal of voluntary departure in the motion to reopen or in a separate motion. 

 
9

The BIA has issued several non-precedential opinions granting motions to reopen 

that were filed with the BIA before Dada but not adjudicated by the BIA until after Dada

that provide apt comparison to Patel’s situation. In these cases, the BIA has construed 

the motion to reopen as an “implicit” request for withdrawal of voluntary departure 

because the alien was unaware of his/her right to request withdrawal at the time of filing 

the motion to reopen and because the motion coupled with the alien’s “decision to remain 

in the United States, clearly reflect that [the alien] was more interested in pursuing the 

underlying application for relief than in pursuing voluntary departure.” In re Surujpaul 

Persaud, 2009 WL 3335993 (BIA Oct. 7, 2009); see also In re Mahmood, 2009 WL 

5252795 (BIA Dec. 10, 2009) (holding “motion to reopen seeking adjustment of status 

constituted a withdrawal of the request for voluntary departure and the adjustment motion 

was therefore not barred based on failure to depart within the voluntary departure time 

allowed”); In re Rodenau, 2009 WL 2171614 (BIA July 9, 2009) (holding 

“[respondent’s] motion [to reopen], and her decision to remain while it was adjudicated, 

reflects an election to pursue the underlying application for relief rather than voluntary 

departure”); In re Maknojiya, 2008 WL 5181789 (BIA Nov. 14, 2008) (holding “the 

respondent . . . implicitly exercised his right to withdraw his voluntary departure request, 

and instead . . . elected to remain to pursue his motion”). Here, too, the circumstances 

indicate that Patel has elected her option to “forgo” the agreed-upon benefits of voluntary 

departure and instead chosen to “remain in the United States to pursue an administrative 

motion.” Dada, 554 U.S. at 21. 
10

Although Patel filed her motion to reopen with the benefit of Dada, unlike the 

aliens in the above-referenced cases, the BIA’s reasoning is equally applicable here. Just 

as the BIA determined that aliens who filed motions to reopen pre-Dada would be 

unfairly prejudiced by prospective application of the Rule due to a lack of knowledge of 

their unilateral right to withdraw voluntary departure, Patel, too, suffered prejudice due to 

a lack of knowledge regarding precisely what she was required to do in the wake of Dada

to exercise her unilateral right. This court, like the Supreme Court in Dada, is “reluctant 

to assume that the voluntary departure statute was designed to remove th[e] important 

safeguard [of a motion to reopen] for the distinct class of deportable aliens most favored 

by the same law . . . particularly . . . when the plain text of the statute reveals no such 

limitation.” Id. at 18 (citations omitted). 

Furthermore, as the Government conceded at oral argument, the facts of this case 

are sympathetic. Patel has no criminal background and her immediate family (save her 

husband) including her parents, five siblings and two children all reside lawfully in the 

United States. The BIA seems to have overlooked Patel’s substantial equities evidenced 

by its failure to mention any of the individualized circumstances of this case in its short, 

one-paragraph opinion. Moreover, we note with concern that the BIA refers to Patel with 

a masculine pronoun on multiple occasions, suggesting it was not focused on Patel as a 

person and leading to the conclusion that its decision was “irrational” in that it was “[n]ot 

guided . . . by a fair consideration of the facts.” Black’s Law Dictionary 906 (9th ed. 

2009).
11

The BIA’s requirement of explicit withdrawal of voluntary departure finds no 

support in the statute, stands in conflict with the agency’s then-proposed Rule and related 

decisions, and creates a disadvantaged category of favored aliens7 who filed motions to 

reopen within the narrow seven-month period after Dada but before the Rule took effect. 

At the time Patel filed her motion, there was obvious confusion regarding what aliens 

should do to ensure they were not in violation of the voluntary departure period while at 

the same time preserve their right to file a motion to reopen to apply for adjustment or 

other relief. This is not the case of an alien sleeping on her rights, or that of someone 

filing multiple administrative motions to delay timely adjudication of her case. Patel has 

pursued her case with diligence and consistently expressed her desire to forgo the benefit 

of voluntary departure to remain in the United States and pursue an administrative 

motion.8

 7 In referring to aliens entitled to voluntary departure as “favored,” we follow the 

same characterization as used by the Supreme Court in Dada which stated, “We must 

be reluctant to assume that the voluntary departure statute was designed to remove 

this important safeguard [motion to reopen] for the distinct class of deportable aliens

most favored by the same law.” Dada, 554 U.S. at 18.

 

8 This case is distinguishable from cases where the alien filed a motion to reopen 

during the seven-month window, but explicitly requested a stay of the voluntary 

departure period pending adjudication of the motion indicating that the alien had no 

intention to relinquish the voluntary departure agreement. See Blackman v. Att’y 

Gen., No. 09-3422, 2011 WL 108335 (3d Cir. Jan. 13, 2011) (holding BIA did not err 

in determining request for stay of voluntary departure is not an implicit request for a 

withdrawal of voluntary departure); see also Ramirez-Mena v. Holder, 324 F. App’x

434 (5th Cir. 2009) (holding the BIA did not err in denying alien’s motion to stay 

voluntary departure period pending determination on the motion to reopen); RojoResendiz v. Mukasey, 297 F. App’x 292 (5th Cir. 2008) (same). 
12

Based on the foregoing, we conclude that the BIA abused its discretion in denying 

Patel’s motion to reopen to apply for adjustment of status on the basis that she failed to 

explicitly request withdrawal of voluntary departure. We express no opinion regarding 

the underlying merits of the motion to reopen. Therefore, we will remand this matter to 

the BIA to reconsider Patel’s motion to reopen to apply for adjustment of status with 

instructions to treat the motion as an implicit request for withdrawal of voluntary 

departure. 

IV.

For the reasons set forth above, we will grant the petition for review, vacate the 

BIA’s order of August 29, 2008, and remand the case for further proceedings consistent 

with this opinion.