United States Court of Appeals

For the First Circuit

No. 05-1438

SANDRA H. DACOSTA,

Petitioner,

v.

ALBERTO GONZALES, 

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Jose A. Vazquez on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Anthony W.

Norwood, Senior Litigation Counsel, and Terri J. Scadron, Assistant

Director, Office of Immigration Litigation, Civil Division, on

brief for respondent.

May 24, 2006
In March 2003, during the pendency of proceedings in this 1

case, the functions of the INS were reorganized and transferred

from the Department of Justice to the newly formed Department of

Homeland Security (DHS). See Homeland Security Act of 2002, Pub.

L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). Title 8 of the

Code of Federal Regulations was thereafter reorganized and amended

to reflect the resulting division of jurisdiction between the DHS

and the Executive Office for Immigration Review, which includes the

immigration courts and the BIA and remains under the direction of

the Attorney General. See 68 Fed. Reg. 10349 (Mar. 5, 2003). To

avoid confusion, we shall employ the shorthand "INS" whether

referring to the former INS or the present DHS.

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HOWARD, Circuit Judge. Sandra DaCosta, a native and

citizen of Brazil, petitions for review of a decision of the Board

of Immigration Appeals (BIA). The BIA found DaCosta statutorily

ineligible for adjustment of status and ordered her removed from

the United States. We deny the petition.

DaCosta failed to depart the United States when her sixmonth tourist visa expired in May 1994. Over two years later, she

filed an application for political asylum and withholding of

removal with the Immigration and Naturalization Service (INS)1

claiming that she had been threatened by Brazilian drug

traffickers. In July 1997, the INS commenced removal proceedings

against DaCosta by charging her with overstaying her visa.

Conceding removability, DaCosta renewed her request for asylum.

Following a hearing, an immigration judge found DaCosta removable

and denied her applications for asylum and withholding of removal.

The immigration judge granted her voluntary departure in lieu of

removal but informed her that if she failed to depart by October

13, 1998, she would be subject to removal without further notice.
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The BIA affirmed without opinion on June 6, 2002 and

granted DaCosta an additional 30 days to voluntarily depart the

United States "subject to any extension beyond that time that may

be granted by the district director." Citing section 240B(d) of

the Immigration and Nationality Act (INA), the BIA warned that if

DaCosta failed "to depart the United States within the time

specified, or any extensions granted by the district director,

[DaCosta] . . . shall be ineligible for a period of 10 years for

any further relief including adjustment of status." See 8 U.S.C.

§ 1229c(d). DaCosta did not petition for review of that order,

and, despite the BIA's warning, failed to depart or to request an

extension of the voluntary departure period. 

On September 3, 2002, DaCosta moved the BIA to reopen her

case to allow her to apply for an adjustment of status to lawful

permanent resident. DaCosta claimed that she had married a United

States citizen and that, in August 2000, during the pendency of her

BIA appeal, her spouse had filed an I-130 "alien relative" petition

in support of her I-485 application for adjustment. According to

DaCosta's motion, the INS had accepted her application, her

husband's petition and the accompanying processing fees, and had

subsequently notified DaCosta to appear for an interview at the INS

office in Hartford, Connecticut. DaCosta claimed that the INS

agent who conducted the interview informed her that her application

would be transferred to the Providence, Rhode Island, INS office.
Three days before the BIA order reopening proceedings, the 2

INS Service Center in Vermont granted the I-130 petition filed by

DaCosta's husband and instructed DaCosta to file a I-485

application for adjustment.

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DaCosta further claimed that, on July 16, 2002, she

received a letter from the Providence office informing her that it

lacked jurisdiction to process her application because she was in

removal proceedings. See 8 C.F.R. § 245.2(a)(1) ("After an alien

. . . is in deportation or removal proceedings, his or her

application for adjustment of status . . . shall be made and

considered only in those proceedings."). According to DaCosta's

motion, for nearly two years she had been led to believe that her

application was being processed by the INS when in fact it was not.

DaCosta therefore asserted that her case should be reopened because

the INS had "misled" her during the time period when she could have

asked the BIA to remand her case for consideration of her

adjustment application. The INS did not file an opposition to

DaCosta's motion to reopen.

On October 24, 2002, the BIA, noting only the lack of

opposition from the INS, granted DaCosta's motion to reopen and

remanded the case for further proceedings. On remand, the INS 2

argued that DaCosta was ineligible for adjustment of status because

she had failed to comply with the BIA's voluntary departure order

of June 6, 2002. The INS argued that INA § 240B(d) mandates that

an alien who fails to voluntarily depart within the time period

specified in a voluntary departure order is ineligible for
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adjustment of status for a period of ten years. See 8 U.S.C. §

1229c(d). The immigration judge disagreed, finding that the BIA's

order reopening the case extinguished the legal consequences of her

failure to timely depart. The immigration judge therefore

considered the merits of DaCosta's adjustment application. During

cross-examination at the hearing, DaCosta confirmed her receipt of

the BIA's June 6, 2002 order denying her appeal. She testified

that she understood that the order required her to leave the United

States within 30 days and that if she failed to depart within that

time, she could be fined and would be ineligible for certain forms

of relief. Nevertheless, on October 23, 2003, the immigration

judge granted DaCosta's application for adjustment of status. See

8 U.S.C. § 1255. 

The INS appealed to the BIA, again arguing that DaCosta

was statutorily ineligible for relief. DaCosta, citing to a

provision in the INA that was repealed in 1996 with passage of the

Illegal Immigration Reform and Immigrant Responsibility Act

("IIRIRA"), responded that "exceptional circumstances" beyond her

control -- the INS's two-year delay in notifying her that it did

not have jurisdiction to adjudicate her application -- excused her

failure to depart. See INA § 242B (codified at 8 U.S.C. §

1252b(e)(2)(A) (1995) (repealed 1996)). DaCosta also argued that

the INS had waived its opportunity to appeal the immigration

judge's decision to grant adjustment of status by failing to oppose
Contemporaneous with her petition for review, DaCosta moved 3

the BIA to reconsider its February 2005 decision. Although the

BIA's subsequent denial of that motion is not the subject of the

present petition for review, we note that the BIA offered a point

of clarification regarding an error in its previous order of

February 2005. Because removal proceedings were commenced against

DaCosta in July 1997, after the passage of the IIRIRA, the new

section 240B(d), as opposed to the former section 242B, provides

the applicable voluntary departure provision. Compare 8 U.S.C. §

1252b(e)(2)(A) (1995) (repealed 1996), with 8 U.S.C. § 1229c(d)

(2005). The BIA noted that, among other things, the new provision

removes the opportunity for an alien to demonstrate "exceptional

circumstances" excusing a failure timely to depart. See 8 U.S.C.

§ 1229c(d) ("If an alien . . . fails voluntarily to depart the

United States within the time period specified [in a voluntary

departure order], the alien shall be . . . ineligible for a period

of 10 years for any further relief," including adjustment of status

under 8 U.S.C. § 1255) (emphasis added). The BIA therefore

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her motion to reopen. On February 24, 2005, the BIA sustained the

INS's appeal and vacated the order granting adjustment.

Acknowledging that it had made a good-faith error in reopening the

case, the BIA agreed with the INS that DaCosta was statutorily

ineligible for adjustment of status because she had violated an

order to depart. Citing Matter of Shaar, the BIA held that DaCosta

had failed to establish "exceptional circumstances" sufficient to

excuse her failure to depart. See 21 I. & N. Dec. 541, 544-46 (BIA

1996) (holding that, during the pendency of a voluntary departure

period, neither the filing of a motion to reopen to apply for a new

form of discretionary relief nor an immigration judge's failure to

adjudicate such a motion qualify as "exceptional circumstances"

sufficient to excuse a failure to depart within the confines of the

departure order). The BIA ordered DaCosta removed to Brazil. She

thereafter filed the present petition for review.3
recognized that it had erred in previously considering DaCosta's

"exceptional circumstances" argument. But because that error did

not alter the result, the BIA concluded that it was harmless.

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DaCosta's petition to this court does not contest that

INA § 240B(d) bars an alien from receiving an adjustment of status

where the alien has previously failed to depart the United States

within the deadline of a voluntary departure order. See Jupiter v.

Ashcroft, 396 F.3d 487, 491 (1st Cir. 2005) (holding that the plain

language of INA § 240B(d) renders an alien ineligible for

adjustment of status where the alien has previously failed to

adhere to a voluntary departure order). She also abandons her

argument that "exceptional circumstances" excuse her failure to

timely depart. Rather, she asserts that, by failing to oppose her

motion to reopen for consideration of her application for

adjustment of status, the INS waived its right to contest the

immigration judge's subsequent order granting her adjustment. She

further contends that the BIA's order reopening her case had the

effect of reopening and tolling her voluntary departure period and

gave the immigration judge the authority to consider afresh her

application for adjustment of status. 

DaCosta also presents three new legal theories based on

the same set of operative facts previously cited in support of her

"exceptional circumstances" argument. First, she argues that the

government should be equitably estopped from asserting her

ineligibility for adjustment in light of her detrimental reliance
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on the INS's implicit and explicit representations that it was

processing her application. For similar reasons, she contends that

the running of her voluntary departure period should be regarded as

having been equitably tolled until October 21, 2002, the date in

which her husband's I-130 petition was approved. Finally, she

asserts that the INS's conduct in mishandling her application

violated her due process rights.

We begin by outlining the limits of our jurisdiction to

adjudicate DaCosta's claims. The INA strips the courts of

jurisdiction to review BIA decisions granting or denying

discretionary relief such as adjustment of status. See 8 U.S.C. §

1252(a)(2)(B). Because a BIA decision on the merits of an

application for adjustment of status is committed to the discretion

of the Attorney General, "arguably, this court would not have

jurisdiction to review that discretionary determination." Succar

v. Ashcroft, 394 F.3d 8, 19 n.15 (1st Cir. 2005). In this case,

however, the BIA did not reach the merits of DaCosta's adjustment

claim, finding, as a threshold matter, that she is statutorily

ineligible for such relief. The arguments presented in DaCosta's

petition are legal in nature, "and as such [are] not within the

jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)." Id. at 19; see

also Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir. 2005). We review

such legal questions de novo, subject to established principles of
DaCosta did ultimately raise these issues with the BIA in the 4

motion to reconsider she filed contemporaneously with this petition

for review. But although the BIA subsequently denied that motion,

DaCosta never petitioned for review of that decision. We therefore

lack jurisdiction to review that decision and consequently cannot

consider the arguments DaCosta raised for the first time in her

motion to reconsider. Cf. Asemota v. Gonzales, 420 F.3d 32, 33

(1st Cir. 2005) (considering only the denial of petitioner's motion

to reconsider where petitioner failed to timely petition for review

of the underlying order).

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agency deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999); Herrara-Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000).

There is another jurisdiction-stripping provision,

however, that is applicable here: 8 U.S.C. § 1252(d)(1), which

permits judicial review of a final order of removal only where "the

alien has exhausted all administrative remedies available to the

alien as of right." In her brief to the BIA preceding its February

2005 order (the decision from which DaCosta petitioned for review),

DaCosta did not argue that the doctrines of equitable estoppel or

equitable tolling were applicable. Because the BIA was not given

the opportunity to adjudicate these claims, we may not consider

them now. See Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005)

(noting that we lack authority "to consider points not squarely

raised before the BIA").4

DaCosta's due process argument, which was also not

presented to the BIA, is subject to a different analysis. We have

noted that "an asserted denial of due process may, in certain

limited circumstances, be exempt from the ordinary exhaustion

requirement." Jupiter, 396 F.3d at 492 (noting that such
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circumstances "are rare and are restricted to claims that are

beyond the authority of the agency to adjudicate"). Without

deciding whether DaCosta's due process claim falls within this

exemption, we conclude that it cannot succeed. See id. (assuming

jurisdiction arguendo where petitioner's due process claim was not

colorable). A due process claim requires that a cognizable liberty

or property interest be at stake. See id. (citing Mathews v.

Eldridge, 424 U.S. 319, 334-35 (1976)). Because adjustment of

status is a discretionary form of relief, it does not rise to the

level of such a protected interest. See id. (citing Henry v. INS,

74 F.3d 1, 7 (1st Cir. 1996)).

DaCosta's waiver argument also fails. DaCosta contends

that the INS is barred from presenting an argument as to her

eligibility for adjustment where it previously declined an

opportunity to "try" the issue by not opposing her motion to

reopen. But the cases she cites, Matter of Kasinga, 21 I. & N.

Dec. 357, 363 (BIA 1996) (denying remand where the INS already had

an opportunity to explore a particular issue before the immigration

judge) and Matter of Guevara, 20 I. & N. Dec. 238, 249 (BIA 1991)

(denying a motion to reconsider where the INS already had ample

opportunity to introduce additional evidence of deportability), are

inapposite. The filing of a motion to reopen with the BIA is not

a vehicle for trying an issue, but is merely a request for the

opportunity to try it. Although the INS did not oppose the motion
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to reopen, the INS did not waive its right to present an argument

against DaCosta's request for adjustment of status or to appeal the

immigration judge's decision granting such relief. DaCosta's

entitlement to adjustment of status was not before the BIA at the

motion to reopen stage.

DaCosta's remaining argument is that she actually did not

violate the BIA's voluntary departure order. She contends that, by

reopening her case, the BIA effectively expunged its June 6, 2002

voluntary departure order. Consequently, she argues, since the

BIA's final decision ordering voluntary departure was erased, the

requirement to leave the United States within 30 days of the final

decision was never triggered.

DaCosta places too much significance on the BIA's order

reopening her case. It is undisputed that DaCosta's voluntary

departure period had already expired before she filed her motion to

reopen with the BIA. Although the BIA's reopening of the case had

the legal effect of vacating the BIA's June 6, 2002 order, it could

not "retroactively nullify" DaCosta's previous violation of the

terms of that order. Cf. Khalil v. Ashcroft, 370 F.3d 176, 180

(1st Cir. 2004) (holding that reinstatement of a new voluntary

departure period did not apply retroactively to eradicate the legal

consequences of failing to comply with the agency's original grant

of voluntary departure so as to render the alien eligible for

adjustment of status); see also Bocova v. Gonzales, 412 F.3d 257,
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268, 270 (1st Cir. 2005) (holding that "[o]nce the voluntary

departure period has run its course, a court of appeals lacks the

authority to fashion a new one or to reinstate or extend the old

one[,]" and that, in order to suspend a voluntary departure period,

an alien must "explicitly request that relief before the expiration

of the voluntary departure period") (emphasis added).

Voluntary departure is a discretionary form of relief

that allows an alien subject to removal time in which to leave the

country of her own volition. See id. at 264-65. The privilege of

voluntary departure provides benefits to both the government and

the alien, but with the benefits come "attendant responsibilities."

Id. at 265. A failure to honor those responsibilities results in

mandatory sanctions. The BIA's order reopening DaCosta's case

cannot expunge her previous violation of an order to depart.

Therefore, the BIA properly found DaCosta statutorily ineligible

for adjustment of status for failure to comply with an order to

voluntarily depart.

The petition for review is denied.