2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/19751 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 0 9

- 3422

_____________ FREDERICK BLACKMAN,

Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent

______________ ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMM IGRATION APPEALS

( Agency No. A :079

- 698

- 791 ) Immigration Judge: Eugene Pugliese

______________ Submitted Under Third Circuit LAR 34.1(a)

December 16 , 2010

__________ ____ Before: SLOVITER , GREENAWAY, JR., and GREENBERG , Circuit Judges

(Opinion Filed: Ja nuary 13, 2011 )

______________ OPINION

______________ GREENAWAY, JR., Circuit Judge2

Frederick Blackman (“Blackman”) petitions for review of the July 20, 2009 final

o rder of removal of the Board of Immigration Appeals (“BIA”)

. Blackman contends that the BIA abused its discretion in denying his motion to reopen because his motion implicitly requested withdrawal of voluntary departure and his subsequent motions explicit ly requested withdrawal of voluntary departure. We disagree. For the following reasons, we will deny Blackman’s petition for review.
I. BACKGROUND We write primarily for the benefit of the parties and recount only the essential facts. Bla ckman is a citizen and native of Guyana. On May 22, 20 01 he entered the United States. I n August 2001, he married Sharon Weaver (“Weaver”), a United States citizen. Subsequent to his marriage to Weaver, Blackman adjusted his status to conditional perman ent resident in September 2002. On April 10, 2003, Blackman and Weaver divorced. On July 15, 2004, Blackman filed a Petition to Rem ove the Conditions on Residence. O n December 28, 2006, he completed the required interview. The Citizenship and Immigra tion Service terminated Blackman’s conditional permanent resident status on the grounds that Blackman had not met the requisite burden of showing that his marriage to Weaver was entered into in good faith , and not for an immigration benefit.3

On January 1 9, 2007, the D epartment of H omeland S ecurity (“DHS”) issued a Notice to Appear to Blackman , stating that he was removable because he was no longer married to Weaver

. On September 21, 2007, the Immigration Judge (“IJ”) denied
Blac kman ’s application for a d iscretionary hardship waiver under Section 216(c)(4)(B) of the Immigration and Nationality Act (“INA”) on the basis that he failed to establish he entered into his marriage to Weaver in good faith. The IJ’s September 21, 2007 O rder also granted Blackman’s A pplication for Voluntary Departure for a maximum period of 60 days. On June 25, 2008, Blackman married Shelby Veale (“Veale”), a United States citizen. She filed a visa relative petition based on their marriage. On October 30, 2008, the BIA affirmed the IJ’s determination that Blackm an did not satisfy his burden of establishing that he qualified for a waiver and the BIA permitted Blackman to voluntaril y depart within 60 days of the O rder , by December 29, 2008

. The BIA noted that the voluntary depart ure time period could be extended by the D HS , pursuant to 8 U.S.C. § 1229c(b) . If Blackman failed to voluntarily depart within the specified or extended time period, he would be ineligible for certain forms of relief under the INA

. On December 30, 20 08, Bl ackman filed a M otion to Reopen Removal P roceedings and S tay of Voluntary Departure Period (“Motion to Reopen”) so he could a pply for adjustment of status based on the petition filed by Veale

. The Motion to Reopen requested that the Board “stay the voluntary departure period during its review of this motion and provide [Blackman] adequate time to depart following its decision.” ( Mot. to4

Reopen 7, Dec. 30, 2008 ). On Decembe r 31, 2008, Blackman filed a Motion to Amend the Motion to Reopen (“Motion to Amend”) “to include a specific request to withdraw the voluntary departu re . . . .” (Mot. to Amend 4, Dec. 31, 2008.) Specifically, he stated that, “[i]n light of recent guidance from the United States Supreme Court and Executive Office for Immigration Review, the respondent instead asks that his grant of voluntary departure be rescinded and the alternative order of r e moval be ordered.” ( Id. at 3.) Blackman requested that his Motion to R eopen be amended, “nunc pro tunc,” to include an explicit request to withdraw the voluntary departure. ( Id. at 4.) On March 2 , 2008, Blackman filed a Motion for Leave to Accept Untimely Motion to Reopen (“Motion for Leave”). In this motion, he explained that his counsel had mailed the M otion to Reopen on December 24, 2008 , with a UPS

- guaranteed delivery date of December 29, 2008, but that “for reasons that are unclear,” the motion was not deli vered until December 30,
2008. (Mot. for Leave 3, March 2, 2009.) On July 20, 2 009, the BIA denied Blackman’s Motion to R eop en (“BIA Order”)
because his motion requested that the BIA “stay the voluntary departure period during its review of this motion and provide him adequate time to depart following its decision.” ( BIA Order 2, July 20, 2009 (citations omitted).) The BIA re asoned that this request did not satisfy the requirement set forth in Dada v. Mukasey , 554 U.S. 1 (2008) that he unilaterally withdraw his application for voluntary departure prior to the expiration of his voluntary departure period . The BIA did not deter mine whether Bla ckman’s M otion to Reopen shou ld be considered timely based on his contention that UPS guaranteed5

delivery by December 29, 2008. Finally, the BIA did not grant Blackman’ s subsequent motions (the Motion to Amend and the Motion for Leave) whi ch requested that his voluntary d eparture be rescinded , because those motions were untimely.

II. JURISDICTION AND STANDARD OF REVIEW We h ave jurisdiction to review the Motion to R eopen submitted in response to a final order of removal, pursuant to 8 U.S.C. § 1252(a). We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v.
Att ’y Gen. , 555 F.3d 145, 148 (3d Cir. 2009) (citations omitted) . We will uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary t o law.” Sevoian v. Ashcroft , 290 F.3d 166, 174 (3d Cir. 2002). We will uphold the BIA’s factual findings if they are supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Filja v. Gonzales , 447 F.3d 241, 251 (3d Cir. 2006) (quoting INS v. Elias

Zacarias , 502 U.S. 478, 480 (1992)).
III. ANALYSIS Under INA § 240B(b)(1), an alien may voluntarily depart at the alien’s own
expense , in lieu of removal , for a time period that may not exceed 60 days

. 8 U.S.C. §12 29c(b)(1). The BIA has discretion to grant an alien ’s motion to reopen if the alien presents evidence that is “ material and was not available and could not have been discovered or presented at the former hearing

. . . . ” 8 C.F.R. § 1003.2(c)

. The author ity to extend the time to voluntarily depart “is only within the jurisdiction of the [DHS] . . . [ and ] [i]n no event can the total period of time, including any extension, exceed 120 days6

or 60 days as set forth in section 240B of the Act.” 8 C.F.R. § 124 0.26(f) ; see also Dada , 554 U.S. at 10. As the Supreme Court held in Dada , a n alien is “permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motio n to reopen.” 554 U.S. at 21

. (emphasizing the importance of the right to pursue a motion to reopen). The Court further held that statutory authority did not exist to “toll ” the voluntary departure period while the merits were adjudicated because , “[i]f the alien is permitted to stay in the United States past the departure date to wait out the adjudication of the motion to reopen, he or she cannot then demand the full benefits of voluntary departure . . . .” Id. at 19

- 20. 1 Blackman does not dispute th at , under Dada , he would have to withdraw his

1 The Executive Office For Immigration Review issued a rule effective January 20, 2009 , stating, If the alien files a post

- decision motion to reopen or

reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately. The penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply if the alien has filed a post

- decisio n motion to reopen or reconsider during the period allowed for voluntary departure. Upon the granting of voluntary departure, the immigration judge shall advise the alien of the provisions of this paragraph (b)(3)(iii). 8 C.F.R. § 1240.26(b)(3)(iii). Th e rule is only applied prospectively. Dada , 554 U.S. at 20. Blackman filed his motion to reopen prio r to January 20, 2009, thus the rule is inapplicable to his case. See Mahmood v. Holder , 570 F.3d 466, 471(2d Cir. 2009) (explaining that 8 C.F.R. § 1240 .26 did not resolve Mahmood’s case because he filed his motion to reopen before the rule was promulgated).7

voluntary depar ture application before pursuing his Motion to R eopen. Blackman instead argues that his motion (requesting the BIA “stay the voluntary departure period during its review of this motion and provi de him adequate time to depart following its decision ” ( BIA Order 2 ) ) is an implied motion to withdraw voluntary departure. We disagree. We have not addressed this specific question in our Circuit. We defer to the BIA’s determination of the requiremen ts for compliance with a voluntary departure withdrawal and Blackman does not disagree that the BIA should consider the issue first

. Se e Mahmood v. Holder , 570 F.3d 466, 470

- 71 (2d Cir. 2009) (remanding the matter to either the BIA or IJ to determine in t he first instance whether a motion to reopen accompanied by a motion to stay voluntary departure constituted a withdrawal under Dada ). Here, t he
BIA did consider whether Blackman complied with Dada and held that Blackman’s request that “his voluntary depa rture period merely be stopped until his motion was adjudicated . . . is inconsistent with a unilateral withdrawal of his application for voluntary departure (by which he agrees to completely forgo such relief) as envisioned by [ Dada ].” ( BIA Order 2.) Blackman instead contends that the BIA abused its discretion in requiring an express statement for withdrawal of voluntary departure. Dada does not specify the exact procedural requirements that the alien must fulfill to request withdrawal of voluntary
de parture. Still, t he Court in Dada emphasized that th e alien must exercise his “option either to abide by the terms , and receive the agreed

- upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and remain in the United States to pursue an8

administrative motion.” Id. at 21. A llowing the alien to “request[]” withdrawal of voluntary departure prior to the expiration of the voluntary period does not give the alien “benefit s without costs.” Id. Blackman is not seeking to forgo the benefits of vol untary departure to pursue his Motion to R eopen. Rather, he seeks a stay during the adjudicat ion of the merits

. 2
Blackman specifically argues that the BIA abused its discretion by requiring an express statement of voluntary withdrawal b ecause : (1) this Circuit’s law, prior to Dada
in Kanivets v. Gonzales , 424 F.3d 330 (3d Cir. 2005), permitted tolling voluntary departure while a motion to reopen was adjudicated ; and (2) under 8 C.F.R. § 1240.26(b)(3)(iii), voluntary departure was automa tically withdrawn once the alien filed a motion to reopen

. Blackman’s reliance on Kanivets and 8 C.F.R. § 1240.26(b)(3)(iii) is inapposite. First, Dada explicitly held that we did not have the statutory authority to toll voluntary departure. Thus, Kan ivets is no longer good law in this Circuit and cannot be persuasive in determining whether an express statement was required . Second, the p rovision that Blackman cites

— 8 C.F.R. § 1240.26(b)(3)(iii) was effective January 20, 2009 and applies only prospect ively. Thus, Blackman’s December 2008 Motion to Reopen is not

2 We have previously held that we have jurisdiction to issue a stay of voluntary departure. Obale v. Att ’y Gen

. , 453 F.3d 151, 157 (3d Cir. 2006). The Court in Dada recognized that some Federal Courts of Appeals have permitted voluntary stays while the alien’s motion was adjudicated. The issue was not before the Court and was left open. Dada , 554 U.S. at 11. The issue is also not before us today a s the BIA did not grant Blackman’s motion for a stay of voluntary departure.9

affected by the regulation. The Court in Dada stated that the regulation “warrant[ed] respectful consideration,” in determining that the alien could withdraw from voluntary departure. 554 U.S . at 20. 3 Therefore, to the extent that Blackman asks this Court to consider the amendment in 8 C.F.R. § 1240.26(b)(3)(iii) persuasive in its decision (even if not binding in Blackman’s case), Dada , the controlling law in this case, already considered aut omatic termination when the Court held that an alien must “withdraw, unilaterally” a voluntary departure request. 554 U.S. at 21.
Furthermore , a request for staying removal does not implicitly include a request to stay the voluntary departure period . T h e alien “must expressly ask for a stay of the voluntary departure period before its expiration , or request withdrawal of the order of voluntary departure .” S andie v. Att ’y Gen

. , 562 F.3d 246 , 256 (3d Cir. 2009). Thus , the
BIA did not abuse its discretion in determining that a request for a stay of voluntary departure is not an implicit request for a withdrawal of voluntary departure. 4
Blackman contends that his Motion to R eopen was timely because UPS guaranteed a delivery date of December 29, 2008. Th e BIA did not reach the issue of timeliness because it held that even if the motion was timely, it did not establish that he withdrew his application for voluntary departure. ( BIA Order 2.) The BIA did not abuse its discretion in not reaching the issue o f timeliness.

3 At the time that Dada was decided, 8 C.F.R. § 1240.26(b)(3)(iii) was merely a proposed amendment that was not binding on the Court. 4 There is no support for the notion th at a request for a stay of vo luntary departure is an implicit request for a withdrawal of voluntary departure.10

Finally, the BIA denied Blackman’s subsequent motions (the Motion to Amend and the Motion for Leave ) on the grounds that they were untimely. Blackman’s period to voluntarily depart ended December 29, 2008. He did not file his Motion to Ame nd until December 31, 2008 and his Motion for Leave until March 2, 2009. The BIA recognizes exceptions for timeliness in unique or extraordinary circumstances. See Sun v. Dept. of Justice , 421 F.3d 105, 108

- 09 ( 2d Cir. 2005) (noting that unique or extr ao rdinary circumstances include ambiguous regulations defining deadlines, instances where the alien was misled by the court, and in some Circuits, may include delay in delivery by an express delivery service)

. However, Blackman does not allege unique or ext raordinary circumstances regarding the untimeliness of the Motion to Amend or the Motion for
Leave

. Thus, the BIA did not abuse its discretion in denying Blackman’s subsequent
motions.
IV. CONCLUSION For the reasons discussed above, we will deny Black man’s petition for review.