REINHARDT, Circuit Judge.
Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), does the Board of Immigration Appeals (BIA) abuse its discretion when it dismisses a motion to reopen, timely filed by an alien during his voluntary departure period, because the alien subsequently fails to depart prior to the end of that period while awaiting the BIA's decision? We conclude that it does and that the BIA must decide the motion on the merits.
Salvador Azarte and Celia Castellon ("the Azartes") are natives and citizens of Mexico who entered the United States without inspection in 1987. On April 20, 1990, the Azartes were married in California. They have two children, Jahir, who is now nine, and Nahivy, who is now ten. Both children are U.S. citizens.
The Immigration and Naturalization Service ("INS") commenced removal proceedings against the petitioners on April 17, 1997. The Azartes were charged with being subject to removal as aliens present in the United States without being admitted or paroled. See Immigration and Naturalization Act ("INA") § 212(a)(6)(A)(I); 8 U.S.C. § 1182(a)(6)(A)(i) (2004). Petitioners conceded their removability and requested relief in the form of cancellation of removal, INA § 240A(b), 8 U.S.C. § 1229b(b) (2004), and, in the alternative, voluntary departure, INA § 240B, 8 U.S.C. § 1229c (2004). On April 5, 1999, the Immigration Judge ("IJ") denied their request for cancellation of removal but granted voluntary departure.
In denying cancellation of removal, the IJ concluded that the Azartes had established two of the statutory requirements for such relief — ten years continuous residence and good moral character during such period.
The Azartes appealed the IJ's decision to the BIA, and, on April 23, 2002, the BIA affirmed the IJ's decision without opinion and permitted the Azartes thirty days, until May 22, 2002, to depart voluntarily from the country. On the bottom of the order, the BIA notified the petitioners of the three consequences of failing to depart within that period: (1) "the alien shall be removed," (2) "the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000," and (3) the alien "shall be ineligible for a period of 10 years for any further relief."
On May 16, 2002, seven days prior to the expiration of the thirty days allotted for voluntary departure, the petitioners timely
Among the new evidence that the Azartes included in their motion to reopen was a statement from psychologist Jose Lopez, Ph.D., to whom Jahir had been referred by a school counselor because of his behavioral problems. Dr. Lopez diagnosed Jahir as suffering from Attention Deficit Hyperactivity Disorder (ADHD). He recommended medical evaluation by a child psychiatrist and pediatrician and a comprehensive treatment plan, including individual therapy, medication, behavior modification, and collaborative intervention by Jahir's parents and school. Dr. Lopez also recommended continued regular treatment for Jahir's inadequate control over his bodily functions, including enuresis and encopresis. The Azartes also submitted a letter from Illana Kent, M.A., a psychotherapist, who stated that Jahir, in addition to having ADHD, suffered from increased anxiety and depression, for which he was receiving ongoing treatment. Finally, the Azartes included a declaration from Jahir's mother averring that her husband's medical insurance from his job in the United States was the source of payment for Jahir's therapy. She also stated that the family would be unable to afford continued treatment and medicine for her son if they were deported to Mexico.
The BIA did not act on the petitioners' motion until approximately six months later, on October 28, 2002. Then, in a one-judge order, the BIA concluded that, because the petitioners failed to depart voluntarily as specified, they were ineligible for cancellation of removal. The Azartes timely filed a petition for review with this court.
We have jurisdiction over the BIA's denial of the Azartes' motion to reopen pursuant to 8 U.S.C. § 1252. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003).
A. Explanation of the Issue
We must decide whether, under IIRIRA, the BIA's failure to rule on a petitioner's motion to reopen prior to his voluntary departure date either requires or authorizes it to decline to rule on the merits of the motion. In IIRIRA, Congress provided for both voluntary departures and motions to reopen. At the conclusion of removal proceedings, an alien may be granted up to 60 days within which to voluntarily depart and may file a single motion to reopen within 90 days. See 8 U.S.C. § 1229c(b)(2) (2004); 8 U.S.C. § 1229a(c)(6)(C)(i) (2004). This case concerns the interrelationship between these statutory provisions and the pertinent regulations of the Executive Office for Immigration Review (EOIR), Immigration and Naturalization Service (INS), the Department of Justice (DOJ), and the Department of Homeland Security (DHS).
Under the BIA's current interpretation, the INA's voluntary departure and motion to reopen provisions affect each other in two ways. First, if an alien departs within his voluntary departure period, he forfeits any motion to reopen he may have filed because he is no longer within the United States. 8 C.F.R. § 1003.2(d) (2004). Second,
In the Azartes' case, the couple filed their motion to reopen well within both their voluntary departure period and the 90-day statutory period for motions to reopen. However, as is the case generally, the BIA had not ruled on their motion by the date they were required to depart voluntarily. Had the Azartes left prior to that date or at any time before the BIA acted on their motion to reopen, the BIA would have dismissed the motion on the ground that the Azartes were no longer in the country. Instead, they stayed, only to have the BIA summarily dismiss their motion because they had failed to depart. Either way, stay or go, under the BIA's interpretation, the Azartes were precluded from obtaining a ruling on the merits of their properly filed, timely motion to reopen. Under that interpretation, it is not only the Azartes but the large class of aliens afforded voluntary departure who are functionally deprived of their statutory right to file a motion to reopen as a result of the requirements and consequences of the award of voluntary departure.
B. History of Motions to Reopen and Voluntary Departure
To understand the relationship between motions to reopen and voluntary departure, a short history of these provisions is useful.
1. Motions to Reopen
A motion to reopen is a traditional procedural mechanism in immigration law with a basic purpose that has remained constant — to give aliens a means to provide new information relevant to their cases to the immigration authorities. See Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.05[a] (2004)[herein-after Immigration Law and Procedure]. Motions to reopen were entertained by the Immigration Bureau at least as early as 1916,
Significantly, a major change in the status of motions to reopen came in 1996 with the enactment of IIRIRA. Motions to reopen were transformed from a regulatory to a statutory form of relief. Specifically, IIRIRA provided the first statutory right to a motion to reopen. 8 U.S.C. § 1229a(c)(6)(A) (1996). This statutory authorization has remained to the present day. 8 U.S.C. § 1229a(c)(6)(A) (2004). In addition, the regulations creating a 90-day filing period and limiting aliens to a single motion to reopen that the Department of Justice had promulgated were enacted as statutory requirements.
These new statutory provisions were implemented by 8 C.F.R. § 3.2(c) (1997)
2. Voluntary Departure
Voluntary departure also has a long history in American immigration law, dating back at least through four generations of immigrants.
IIRIRA drastically limited the time allowed for voluntary departure. Aliens can now be granted a maximum of 120 days, if voluntary departure is granted before the conclusion of the proceedings before the immigration judge,
C. Statutory Interpretation
In reviewing administrative interpretations of statutes, we look first to the principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first step under Chevron is to determine whether the statutory meaning is unambiguous. Id. at 843, 104 S.Ct. 2778. No deference to the view of the administrative agency is necessary when "normal principles of statutory construction suffice" to determine the statute's meaning. See, e.g., Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 786 (9th Cir.2004) (citations omitted). Such is the case here.
"The starting point for [the] interpretation of a statute is always its language," Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), and "courts must presume that a legislature says in a statute what it means and means in a statute what it says there," Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). With respect to motions to reopen and voluntary departure, Congress' language in IIRIRA is clear and unambiguous:
1. New Law Requires New Interpretation
The passage of IIRIRA drastically altered many important statutory provisions in immigration law. Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1170 (9th Cir.2003). Such legislative change forces us to reexamine our previous holdings. Id. In particular, three major changes in both statute and practice force us to examine the applicability of Shaar v. INS, to post-IIRIRA cases. 141 F.3d 953 (9th Cir.1998) (holding, pre-IIRIRA, that the BIA may deny a motion to reopen on the ground that an alien failed to leave the country by his voluntary departure date, even though his motion to reopen was filed before that date). We hold that because the rationales that underlay Shaar are no longer applicable after IIRIRA, Shaar does not control our decision in this case.
First, Shaar did not discuss any Congressional purpose to allow motions to reopen, and for good reason.
Second, neither the pre-IIRIRA statute on voluntary departure nor the pre-IIRIRA regulation on motions to reopen had any time limits. 8 U.S.C. § 1254(e) (1995) (repealed 1996); 8 C.F.R. § 3.2 (1995). Aliens were granted long periods within which to depart and their motions to reopen were never time-barred. See supra pp. 1282-83, 1284-85. These generous time-frames made it possible for an alien to file a motion to reopen and receive a decision during his voluntary departure
Finally, as a matter of practice, the voluntary departure periods that were initially granted were much more generous pre-IIRIRA. For example, aliens frequently used to receive many months, or even a number of years, within which to voluntarily depart, see supra p. 1285, but now routinely receive only 30 days, half of the statutorily permissible period. Discretionary extensions could, in the past, alleviate the problems created by any grant of a brief period for voluntary departure, but now the Justice Department has interpreted 8 U.S.C. § 1229c as establishing an absolute limit on the time that can be granted. 8 C.F.R. § 1240.26(f) (2004) ("In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act."). Today's aliens can no longer benefit from the practice of granting reasonable extensions that could accommodate the BIA's inability to resolve motions to reopen expeditiously. In fact, the current policy of the BIA appears to be not to grant any extensions at all. Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.05[d] (2004). ("Under present practice the Board does not consider requests to extend time for voluntary departure."). The BIA's refusal to grant sufficient periods of time for voluntary departure to allow it to decide timely filed motions to reopen and thus to reconcile the two statutory provisions is especially perplexing because the BIA has for more than a quarter-century extended the voluntary departure period in the appellate context. See, e.g., Matter of Chouliaris, 16 I. & N. Dec. 168, 1977 WL 39242 (BIA 1977) (tolling voluntary departure period automatically pending BIA appeal from the immigration judge's decision and reinstating a voluntary departure period after appeal decision); Matter of Villegas Aguirre, 13 I. & N. Dec. 139, 1969 WL 16928 (BIA 1969) (holding that an appeal tolls the running of the voluntary departure period).
Because Congress now authorizes an alien to file a motion to reopen within 90 days and has sharply reduced the time period for voluntary departure and because the two statutory provisions currently contain potentially conflicting terms, Shaar does not control our decision here. Rather, we must interpret the new IIRIRA provisions in the first instance.
2. Statutes Are Interpreted As A Whole
It is an established canon of construction that, when interpreting statutes, courts are generally obligated to look at the statute as a whole. See, e.g., William N. Eskridge, Jr. & Phillip P. Frickey, Legislation: Statutes and the Creation of
3. No Absurd Interpretations
Another traditional canon of statutory construction that necessitates tolling the voluntary departure period is that we must avoid interpretations that would produce absurd results. See, e.g., United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004) (rejecting and affording no deference to a legal interpretation by the BIA that "contravenes the statute and leads to absurd and wholly unacceptable results"). We find the notion nonsensical that Congress
4. Construction in Favor of Aliens
Finally, it is a well-established canon of construction that "deportation statutes should be construed in favor of the alien." Kwai Fun Wong v. United States, 373 F.3d 952, 962 (9th Cir.2004); see also INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (applying "the longstanding principle" of interpreting deportation statutes in favor of the alien) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir.2002). The application of this canon is clear in this case. Preventing aliens from receiving decisions on their motions to reopen would eliminate all possibility of redress if their circumstances changed. If Congress desired such a draconian result, we are confident it would have said so.
To avoid creating an incompatibility in the statutory scheme, to implement a workable procedure for motions to reopen in cases in which aliens are granted voluntary departure, and to effectuate the purposes of the two statutory provisions, we hold that in cases in which a motion to reopen is filed within the voluntary departure period and a stay of removal or voluntary departure is requested, the voluntary departure period is tolled during the period the BIA is considering the motion. Such an interpretation is the most consistent with IIRIRA's legislative scheme because, unlike the BIA's interpretation, it gives effect to both 8 U.S.C. § 1229a(c)(6)(A) (2004) and 8 U.S.C. § 1229c(a)(1) (2004). Therefore the petition for review is granted and the Azartes' motion to reopen is remanded to the BIA with instructions to consider it on the merits.
Id. at 956 (quoting 8 U.S.C. § 1252b(e)(2)(A) (1995) (repealed 1996)). The Shaar court held that this provision, the precursor to the current voluntary departure law, was "clear and unambiguous." Id. The Shaar court therefore did not go beyond the first step under Chevron. Id. ("Having found that language clear and unambiguous, we need go no further and, the Shaars' arguments notwithstanding, we need not even consider the legislative history.").
As the Azartes requested a stay of removal, we need not reach the question whether filing a motion to reopen automatically tolls the voluntary departure period, although automatic tolling would be consistent with the legislative scheme. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10312, 10321, 10325-26 (March 6, 1997) (interim rule).
Interpreting a request for a stay of removal as including a request to toll the voluntary departure period is consistent with Desta v. Ashcroft, 365 F.3d 741, 749 (9th Cir.2004) (construing a stay of removal request pending our review as including a request for a stay of voluntary departure when the request was filed within the voluntary departure period). In this context, "staying" and "tolling" the voluntary departure period have the same meaning, and we and the BIA have both used the terms interchangeably with regard to the voluntary departure period.