On consideration of the petition for rehearing, the opinion issued on September 11, 2006, is modified in order to clarify that, following the repeal of IIRIRA's transitional rules, our court no longer lacks jurisdiction to review petitions for stays of deportation. For ease of reference, a fully revised opinion shall issue this date.
1. We delete the following sentences of the opinion found at 464 F.3d at 178-79:
In place of those deleted sentences, we insert the following:
2. In the opinion at 464 F.3d at 179, we delete the phrase "—a permanent rules case—."
3. We delete the following sentences of the opinion found at Iouri v. Ashcroft, 464 F.3d 172, 180 (2d Cir.2006):
4. We modify footnote 8, 464 F.3d at 180, to read as follows:
5. We delete the following sentence of the opinion found at 464 F.3d at 181: "Whereas a stay of deportation is aimed at preserving the court's jurisdiction, a stay of the voluntary departure period is a way for the alien to extend the benefits of the privilege of voluntary departure beyond the date the alien was initially afforded." In its place, we insert: "Whereas a stay of deportation is aimed at preventing forcible removal, a stay of the voluntary departure period is a way for the alien to extend the benefits of the privilege of voluntary departure beyond the date the alien was initially afforded."
6. Finally, we delete footnote 9, found at 464 F.3d at 181.
The petition for rehearing is DENIED.
Vladimir Iouri and Vera Yuriy ("Petitioners"), natives of the former Soviet Union and citizens of the now independent Ukraine, petition for review from a November 27, 2002 decision of the Board of Immigration Appeals ("BIA") summarily affirming an Immigration Judge's ("IJ") order finding Petitioners incredible and denying their application for asylum, withholding of return, and relief under the Convention Against Torture ("CAT"). Petitioners also seek review of a May 29, 2003 order of the BIA denying their motion to reopen immigration proceedings. The purpose of the motion to reopen was to adjust their status to that of lawful permanent residents on the basis of approved "immediate relative" petitions filed on Petitioners' behalf by their daughter, a United States citizen. The BIA denied the motion because by the time it was filed, Petitioners had remained in the United States beyond the period granted for voluntary departure and were, therefore, statutorily barred from seeking adjustment of status.
On petition for review, Petitioners raise two issues. First, whether the BIA erred by failing to take into account their advanced age in assessing their credibility. Second, whether their voluntary departure period should be deemed stayed, tolled, or otherwise extended by their having timely filed for a petition for review and moved for a stay of deportation in their underlying asylum case.
Petitioners—husband and wife—are natives of the former Soviet Union and citizens of the now independent Ukraine. Iouri entered the United States on or about April 4, 1993 as a non-immigrant visitor. Yuriy followed on or about August 3, 1993, also as a non-immigrant visitor. Soon after his wife's arrival, Iouri sought asylum claiming that as a member of the Ukraine Orthodox Church, he was persecuted and has a well-founded fear of future persecution due to his religious beliefs and affiliation.
In his asylum application, Iouri claims that he has long been mistreated due to his religious beliefs. In particular, he asserts that under Communist rule, his family was unable to practice their religion openly, and as a child, he was punished in school for attending Easter services. His application also recounts alleged mistreatment while he served in the army. In Hungary, for example, Iouri asserts he refused to shoot protestors due to his moral and religious convictions, and as a result, he was mistreated and threatened with punishment. Iouri claims his commanding officer arrested him while he was praying.
According to Petitioners, conditions did not improve with perestroika and independence. They report receiving threatening letters and phone calls; letters they sent were opened and inspected; and the Russian Orthodox and Ukranian Catholic churches, backed by the government, did "their best to declare [Petitioner's] religion out-of-law."
A hearing was held on July 6, 2000 at which both Petitioners testified. With regard to the 1991 incident, Iouri claimed for the first time that he was knocked unconscious, suffered injuries to his head and chest, and was hospitalized for seven days. As to the 1992 vandalism incident, he testified that graffiti with death threats was painted on the wall, and when he attempted to report the incident, police informed him the case was closed and advised him to stop practicing his religion. When Yuriy testified, she could not remember the date of the third incident, stating that it occurred either in December of 1992 or February of 1993. She also testified that her husband was attacked on the street, not in the apartment. When brought to her attention that submitted documents indicated the attack occurred in her home, she changed her testimony and stated that a fourth incident in which her husband was beaten occurred sometime in December of 1992. Her husband, however, did not testify to that effect, and there is no mention in any of the documents of a December 1992 attack.
The IJ denied Petitioners' application finding that Iouri's testimony was not credible. Specifically, the IJ found his testimony to be "generally halting and vague with regards to some significant events." As to the 1991 incident, the IJ noted that this had not been mentioned anywhere else and there were no documents corroborating that he had been hospitalized. The IJ also noted inconsistencies in the testimony between Iouri and his wife—i.e., she claimed he was attacked in 1993 on the street, not in the apartment, and she testified to a fourth incident never once mentioned by Iouri. Finally, the IJ explained that Iouri was vague in describing the tenets of his faith.
Although the IJ denied Petitioners' application for asylum, he granted their request to voluntarily depart pursuant to former Immigration and Nationality Act ("INA") § 244(e)(1), 8 U.S.C. § 1254(e) (repealed 1996). Petitioners were warned that if they failed to depart voluntarily, the order granting voluntary departure would be withdrawn and they would be ordered deported to the Ukraine. They were also warned, by written order, of the statutory consequences of failing to depart; specifically, they would be ineligible for certain immigration relief, including adjustment of status, for a term of five years. Id. §§ 1252b(e)(2) & (5). Petitioners filed a timely appeal which tolled the first thirty days of their voluntary departure period. On November 27, 2002, the BIA summarily affirmed the IJ's decision and granted Petitioners a new period of voluntary departure lasting until December 27, 2002.
A. Asylum Application
Because the BIA summarily affirmed the IJ's decision to deny Petitioners' application for asylum, we review the IJ's decision directly. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). In turn, our scope of review is "exceedingly narrow." Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (internal quotation marks omitted). In reviewing a denial of an application for asylum, we "defer to the immigration court's factual findings as long as they are supported by `substantial evidence,'" and "we will not disturb a factual finding if it is supported by `reasonable, substantial and probative' evidence in the record when considered as a whole." Id. (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). Factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
When it comes to credibility determinations, we afford "particular deference" to the IJ in applying the substantial evidence test. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). Thus, we look to see whether the IJ has provided "specific, cogent" reasons for her findings and whether those findings bear a "legitimate nexus" to the credibility determinations. Id. at 74 (internal quotation marks omitted). Where a credibility determination is based on specific examples of "inconsistent statements" or "contradictory evidence," a "reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Id. (internal quotation marks omitted).
Here, the IJ clearly set forth specific and cogent reasons for his adverse credibility finding, stating:
These findings are supported by substantial evidence. As noted above, there were significant discrepancies between Iouri's initial asylum application, the addendum, and his testimony. For example, the addendum did not note his hospitalization following the first incident and nowhere
Nevertheless, Petitioners argue that the IJ and BIA should have considered the passage of time and their advanced age in assessing their credibility. As the government correctly points out and as Petitioners acknowledge, however, this particular argument was not raised before the BIA and Petitioners therefore failed to exhaust their administrative remedies. Accordingly, this argument has been waived. See Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004) ("To preserve a claim, we require `[p]etitioner to raise issues to the BIA in order to preserve them for judicial review.'" (quoting Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir. 2003))).
B. Voluntary Departure
As noted, Petitioners were granted— both by the IJ and the BIA—discretionary relief of voluntary departure in lieu of deportation pursuant to former INA § 244(e)(1).
Following the BIA's decision to affirm the IJ, Petitioners were required to depart the United States by December 27, 2002. They did not. Instead, on January 23, 2003, they moved before the BIA to have their proceedings reopened in order to adjust their status based on "immediate relative" petitions filed on Petitioners' behalf by their daughter and approved by the INS on November 25, 2002. Because they had overstayed their time for voluntary departure, however, the BIA denied the motion. See 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996) (aliens who fail to depart within the period for voluntary departure, "other than because of exceptional circumstances, shall not be eligible for [adjustment or change of status under section 245] for a period of 5 years after the scheduled date of departure. . . . ").
The BIA's conclusions of law are reviewed de novo but where the BIA has applied the correct law, we review its decision to deny reopening for abuse of discretion. Guan v. BIA, 345 F.3d 47, 48 (2d Cir.2003). To get around the otherwise clear statutory bar to their seeking adjustment of status, Petitioners contend that either (1) their period for voluntary departure does not commence until this Court issues the mandate in the underlying asylum case or (2) because they sought a stay of deportation, we should enter a nunc pro tunc order staying their voluntary departure period. Either way, Petitioners argue the BIA erred in not granting their motion to reopen.
i. When does Petitioners' time to depart voluntarily begin to run?
Citing the Ninth Circuit's decision in Contreras-Aragon v. INS, 852 F.2d 1088, 1092 (9th Cir.1988), Petitioners first argue that their period for voluntary departure does not begin to run until we issue a mandate denying their petition for review in their underlying asylum case. Contreras-Aragon, however, is an "old law" case. At the time of Contreras-Aragon, the INA provided for automatic stays of deportation upon the filing of a petition for review. 8 U.S.C. § 1105a(a)(3) (repealed 1996). The Contreras-Aragon court reasoned that it was inconceivable "that Congress made such provision but intended to require aliens granted voluntary departure to seek repeated extensions of the voluntary departure period from the district director, in order to preserve the award of voluntary departure until our final determination. . . ." 852 F.2d at 1092. Thus, the court concluded that the right of voluntary departure should remain in effect throughout the period of appellate review and for whatever additional time the BIA afforded the petitioner in its decision. Id. In adopting this rule, the court rejected an alternative rule which would have preserved voluntary departure only where the alien petitions for review within the period specified for voluntary departure. Such a rule was unacceptable because, in the court's view, it would "shorten the statutory six month period" provided for under "old law" for filing a petition for review. Id. at 1096 (citing 8 U.S.C. 1252(c) (repealed 1996)).
Petitioners here, however, are subject to the rule of IIRIRA, as amended by the REAL ID Act of 2005, because a final deportation order was entered after October
These changes have so undercut the rationale of Contreras-Aragon that Petitioners reliance on that decision is misplaced. Indeed, these very same changes prompted the Ninth Circuit several years later in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir.2003), to reconsider Contreras-Aragon and hold that the period for voluntary departure begins to run from the time the BIA enters its order.
ii. Whether the period for voluntary departure may be stayed, tolled, or otherwise extended
In Thapa, 460 F.3d 323, following the position adopted by the majority of the Circuits, compare Bocova, 412 F.3d at 265-67 (holding that IIRIRA does not limit a court's authority to issue a stay of departure suspending the running of a voluntary departure period); and El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir.2003) ("the District Director's authority to extend voluntary departure time periods does not limit this court's equitable authority to grant a stay of the voluntary departure period"); and Rife, 374 F.3d at 616 (holding that since IIRIRA permits stays of removal, voluntary departure can also be stayed); and Lopez-Chavez, 383 F.3d at 654 (concluding that under the permanent IIRIRA rules, a stay tolling the time for voluntary departure may be entered); and Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.2003); with Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.2004) (holding that voluntary departure may not be stayed), we recently held that "we have the authority . . . to stay an agency order [of voluntary departure] pending . . . consideration of a petition for review on the merits." Thapa, 460 F.3d at 324-25. We did not address, however, our power to issue such a stay where, as here, the petitioners (1) moved only for a stay of removal and failed to make a motion expressly requesting a stay of voluntary departure, and (2) have now sought such relief well after the time for voluntary departure has expired.
iii. Whether Petitioners must have expressly requested a stay of the voluntary departure order
In Thapa, and most cases where other courts have held the period for voluntary
When an alien is ordered deported, a warrant by the INS District Director is issued authorizing the officer to take the alien into custody and deport him or her. Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 72.08[a] (rev. ed.2005). When this Court grants a stay of deportation, we are preventing the forced removal of an alien from the country. Such stays are particularly important in cases governed by IIRIRA's transitional rules because removal of an alien strips this Court of jurisdiction to hear their petition for review. See Elian, 370 F.3d at 900. Thus, if we deny a stay of deportation, we deprive ourselves of the opportunity to review a claim, and as a result, we may end up returning an alien to the very persecution he or she was fleeing in the first place.
Voluntary departure, in contrast, is a privilege granted an alien in lieu of deportation. See Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521 (2d Cir.1976). Although it carries with it significant restrictions barring an alien's readmission to the United States, see Thapa, 460 F.3d at 328, voluntary departure affords an alien certain benefits: "[I]t allows [him] to choose [his] own destination points, to put [his] affairs in order without fear of being taken into custody at any time, to avoid the stigma and various penalties associated with forced removals (including extended detention while the government procures the necessary travel documents and ineligibility for readmission for a period of five or ten years, see 8 U.S.C. § 1182(a)(9)(A)), and it facilitates the possibility of return to the United States, for example, by adjustment of status." Id. An "immigration judge's order granting voluntary departure usually withholds the entry of a deportation order, permitting the respondent to depart within a specified period, and directs that the deportation order shall become effective automatically if respondent does not depart." Gordon, Mailman and Yale-Loehr, supra, at § 74.02[c]. Where an alien departs within the specified time period, the alien is not regarded as having been deported and thus obtains the benefits of departure without deportation. Id.
In contrast to a stay of deportation, which stops the physical removal of an alien from the country, a stay of voluntary departure stops the clock on the period within which an alien is required to depart and, if granted, effectively extends the time during which an alien is allowed to leave voluntarily. An alien "`does not lose something when offered the additional opportunity to depart voluntarily. On the contrary, he retains precisely the same
The relief sought by a stay of deportation, therefore, is different from that sought by a stay of voluntary departure.
iv. Whether Petitioners are entitled to nunc pro tunc relief
Petitioners would have us now adjudicate their request for a stay of voluntary departure nunc pro tunc. Nunc pro tunc, Latin for "now for then," refers to a court's inherent power to enter an order having retroactive effect. Black's Law Dictionary 1100 (8th ed.2004). "When a matter is adjudicated nunc pro tunc, it is as if it were done as of the time that it should have been done." Edwards v. INS, 393 F.3d 299, 308 (2d Cir.2004). It is a "far-reaching equitable remedy" applied in "certain exceptional cases," Iavorski v. INS, 232 F.3d 124, 130 n. 4 (2d Cir.2000), typically aimed at "rectify[ing] any injustice [to the parties] suffered by them on account of judicial delay." Weil v. Markowitz, 829 F.2d 166, 175 (D.C.Cir.1987). In the context of agency action, we have held that an award of "nunc pro tunc relief [should] be available where agency error would otherwise result in an alien being deprived of the opportunity to seek a particular form of . . . relief." Edwards, 393 F.3d at 310-11. See also Ethyl Corp. v. Browner, 67 F.3d 941, 945 (D.C.Cir. 1995) (noting that nunc pro tunc relief has been applied to embrace agency action "where necessary to put the victim of agency error in the economic position it would have occupied but for the error" (internal quotation marks and citation omitted)).
While we are sympathetic to the position Petitioners find themselves in, this is simply not a case in which nunc pro tunc relief is warranted. As of November 25, 2002, Petitioners' immediate relative petitions were approved. Two days later, the BIA issued its decision in the underlying asylum case, affirming the IJ's order. The BIA, however, granted Petitioners an additional 30 days within which to depart. Petitioners then had several options. First, they could have filed a motion to reopen to adjust their status sooner. Indeed, the record discloses that Petitioners did not move to reopen until January 2003, well after their period for voluntary departure had expired. Second, they could have sought an extension of their period for voluntary departure from the INS District Director. Finally, they could have moved in this Court for a stay of voluntary departure. By exercising any of these options, Petitioners might have preserved their privilege to depart voluntarily. In other words, this is not a case in which error on the part of the court or the INS put Petitioners in a worse position. An order, nunc pro tunc, granting a stay of voluntary departure is therefore inappropriate. Cf. Edwards, 393 F.3d at 312 (granting nunc pro tunc relief to aliens who were erroneously denied the opportunity to apply for INA § 212(c) relief); Batanic v. INS, 12 F.3d 662, 667-68 (7th Cir.1993) (ordering BIA to allow petitioner to apply for asylum nunc pro tunc to remedy IJ's error in proceeding with hearing without petitioner's attorney present); see also Weil v. Markowitz, 898 F.2d 198, 201 (D.C.Cir.1990) ("The paradigm case [for nunc pro tunc relief] involves a party who has died after his case has been submitted to the court, but before the court has entered judgment. Cases in which a party would otherwise be prejudiced by the clerk's delay in entering judgment stand upon the same footing." (citations omitted)).
Finally, we note one other factor that distinguishes Desta and Rife from this
This Court has never held that aliens who file a petition for review are automatically entitled to a stay of voluntary departure. To the contrary, in Ballenilla-Gonzalez, we highlighted the fact that the petitioner there had not filed for a petition of review within the thirty days fixed by the period for voluntary departure nor had she requested a stay of the voluntary departure period pending appeal. 546 F.2d at 521. We noted that "[t]hese procedures enable the [BIA] or this court, in cases where a prima facie meritorious basis for appeal is shown, to permit its being pursued without prejudice to voluntary departure." Id. Thus, in contrast to the Eighth and Ninth Circuits, both of which had expressly criticized then existing law, in Ballenilla-Gonzalez we expressed approval for procedures already in place prior to the passage of IIRIRA. For that reason, we are not concerned, as the courts were in Rife and Desta, that Petitioners here may have been misled that they did not have to file a motion specifically seeking a stay of voluntary departure. If anything, our decision in Ballenilla-Gonzalez should have put them and their counsel on notice that a motion seeking such relief was necessary.
Although we decide that the stay of deportation should not be read so as to encompass a stay of voluntary departure, Petitioners may not be without a remedy. Under pre-IIRIRA regulatory authority, the INS District Director (now the appropriate Field Office Director, U.S. Immigration Customs Enforcement, Department of Homeland Security) may grant a nunc pro tunc extension of voluntary departure. See 8 C.F.R. § 1240.57 ("Authority to reinstate or extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is within the sole jurisdiction of the district director."); see also 6 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[f] (rev. ed. 2005) ("Even after the expiration of the time for voluntary departure fixed by the immigration judge or the Board, a nunc pro tunc extension of the voluntary departure time may be granted by the district director if the [alien] presents a valid travel document and a confirmed reservation. In such cases the district director may cancel the warrant of deportation and may place in the [alien's] file an explanatory memorandum and a copy of the letter authorizing the extension of voluntary departure time.").
Petitioners are both in their mid-to-late 60's and have been in the United States for more than a decade, without event. Their only child is a United States citizen, and the "immediate relative" petitions she submitted on her parents' behalf have already been approved. Furthermore, it appears that any delay on Petitioners' part may be attributable to counsel's failure to recommend that they seek to extend their voluntary departure period before overstaying that period, an omission that thereby made them ineligible for adjustment of their status based on approved "immediate relative" petitions. In this case, the INS District Director might well
The petitions for review are DENIED.