1

In addition Lubale has moved to supplement the record on appeal with several

items of evidence that were not presented below. These materials were not part of the

administrative record, and the motion is denied. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-3540

___________

Simon Kiloobe Lubale, *

*

Petitioner, *

* Petition for Review of an 

v. * Order of the Board of 

* Immigration Appeals.

Alberto Gonzales, Attorney General, *

*

Respondent. *

___________

Submitted: March 15, 2007 

Filed: May 2, 2007

___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

In October 2003, an Immigration Judge (IJ) denied Simon Kiloobe Lubale’s

application for asylum and related relief, but permitted him to depart voluntarily. The

Board of Immigration Appeals (BIA) dismissed Lubale’s appeal, and granted a 60 day

period of voluntary departure until July 15, 2005. On August 12, 2005, Lubale moved

to reopen his proceedings. The BIA denied the motion to reopen, finding Lubale

ineligible for adjustment of status. Lubale petitions for review after the BIA denied

his motion to reconsider.1

 After careful review, we deny the petition.
2

The decision in Matter of Shaar was based on 8 U.S.C. § 1252b(e)(2)(A) and

preceded the 1996 enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), which repealed § 1252b(e)(2)(A).

-2-

Lubale, a Ugandan citizen, entered the United States as a nonimmigrant visitor

and overstayed the authorized period of admission. Removal proceedings were

initiated in April 2002. Lubale conceded removability and requested voluntary

departure; he also filed an application seeking asylum, withholding of removal, and

protection under the Convention Against Torture. The IJ found Lubale removable,

denied his application, and granted voluntary departure. Lubale appealed to the BIA

which affirmed the IJ’s decision and dismissed the appeal on May 16, 2005. The BIA

granted Lubale a 60 day voluntary departure period. Lubale’s period of voluntary

departure expired on July 15, 2005. 

On August 12, 2005 Lubale filed a motion to reopen, seeking adjustment of

status to permanent residence based on his alleged bona fide marriage to a United

States citizen in May 2004. The Department of Homeland Security (DHS) opposed

the motion and the BIA denied it, citing Matter of Velarde-Pacheco, 23 I. & N. Dec.

253, 256 (BIA 2002) (motion to reopen may be granted if, inter alia, motion is not

barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), and Immigration and

Naturalization Service (now DHS) does not oppose motion), and Matter of Shaar, 21

I. & N. Dec. at 543-44 (alien who overstays his voluntary departure period is

statutorily ineligible for applying for adjustment of status absent showing of

“exceptional circumstances”).2

 The BIA also noted that because Lubale had not filed

his motion to reopen prior to the expiration of the voluntary departure period, his case

did not fall within the scope of Sidikhouya v. Gonzalez, 407 F.3d 950, 952 (8th Cir.

2005) (per curiam) (motion to reopen filed prior to expiration of voluntary departure

period tolls time period until BIA has ruled on motion).

Lubale filed a motion to reconsider, alleging that he was unable to depart from

the United States within the voluntary departure period due to the exceptional

circumstances of his wife delivering a stillborn son in December 2004. The BIA
-3-

denied Lubale’s motion on the ground that his wife’s stillbirth was not an exceptional

circumstance because it occurred during the pendency of his appeal before the BIA,

an appeal which ultimately granted voluntary departure. The BIA also noted that

Lubale did not seek an extension of the voluntary departure period and that during his

appeal he never informed the BIA of his marriage to a United States citizen. Lubale

mistakenly directed his petition to the United States Court of Appeals for the Sixth

Circuit, and the matter was later transferred to this court. 

Lubale now petitions for review of the BIA’s denial of his motion to reconsider,

arguing that the fact his wife had a stillborn son constituted exceptional circumstances

for failing to depart voluntarily. He also maintains that his counsel’s failure to file the

motion to reopen prior to the expiration of the voluntary departure period amounts to

ineffective assistance in violation of his Fifth Amendment due process rights.

We review for abuse of discretion the BIA’s denial of relief on a motion to

reconsider. Aneyoue v. Gonzales, 478 F.3d 905, 907 (8th Cir. 2007). This standard

of review, which is considerably more deferential than the ordinary standard for

reviewing agency decisions, is necessary to deter aliens from “improperly

prolong[ing] the removal process by filing motions to reconsider, instead of

petitioning for immediate judicial review of an initial adverse decision.” Esenwah v.

Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004) (citing Boudaguian v. Ashcroft, 376 F.3d

825, 828 (8th Cir. 2004)). To succeed under this higher standard of review, Lubale

must demonstrate that the BIA’s denial lacks a rational explanation, departs from

established policies, invidiously discriminates against a particular race or group,

ignores relevant factors, or distorts important aspects of the claim. Id.

Lubale contends that exceptional circumstances prevented him from departing

within the time allowed by the BIA’s grant of voluntary departure. Prior to the

enactment of the IIRIRA, “exceptional circumstances” were a statutory justification

for failing to depart during the specified time period. See 8 U.S.C. § 1252b(e)(2)(A)

(repealed 1996) (“any alien allowed to depart voluntarily . . . who remains in the
-4-

United States after the scheduled date of departure, other than because of exceptional

circumstances, shall not be eligible [to receive an adjustment of status for 5 years]”)

(emphasis added). In 1996, the passage of the IIRIRA eliminated this justification.

See 8 U.S.C. § 1229c(d)(1) (West 2005 & 2006 Supp.) (“if an alien is permitted to

depart voluntarily . . . and voluntarily fails to depart within the time period specified,

the alien shall be ineligible [to receive an adjustment of status for 10 years]”)

(emphasis added).

Here, because Lubale’s removal proceedings commenced after the effective

date of the IIRIRA, the BIA lacked authority to apply an “exceptional circumstances”

justification for his failure to depart within time period afforded for voluntary

departure. See Matter of Zmijewska, 24 I. & N. Dec. 87, 92-93 (BIA 2007) (Congress

has not given BIA authority to apply equitable exceptions to civil penalties for failing

to depart within time for voluntary departure). Further, Lubale does not allege that he

was unaware of the BIA’s grant of voluntary departure or that he was physically

unable to depart within the specified time period. See id. at 94 (“voluntariness”

exception in § 1229c(d)(1) is much narrower than repealed “exceptional

circumstances” exception and would apply only to aliens who, through no fault of

their own, remain unaware of voluntary departure order or are physically unable to

depart; involuntary failure to depart does not include exceptional hardships to alien

or close family members). The BIA therefore did not abuse its discretion in denying

the motion to reconsider.

Finally, Lubale's failure to assert his ineffective assistance claim before the BIA

precludes judicial review. See Etchu-Njang v. Gonzales, 403 F.3d 577, 584 (8th Cir.

2005) (before alien may obtain judicial review on claim of ineffective assistance it

must be presented to BIA on direct administrative appeal or in motion to reopen);

Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 n.1 (8th Cir. 2003) (“[o]ur Circuit has

yet to recognize the validity of a due-process claim in a deportation proceeding based

on the ineffective assistance of counsel”); cf. Jamieson v. Gonzales, 424 F.3d 765, 768
-5-

(8th Cir. 2005) (where alien seeks discretionary relief of adjustment of status no

constitutionally-protected liberty interest is at stake).

Accordingly, we deny Lubale’s petition for judicial review.

______________________________