Silvia Amaro Mardones and Omar Vicente Mardones-Rojas v. Edward McElroy District Director of the Immigration and Naturalization Service of New York, and Janet Reno, Attorney General of the United States
Docket: 1998
Court: Court of Appeals for the Second Circuit; October 28, 1999; Federal Appellate Court
The case involves petitioners Silvia Amaro Mardones and Omar Vicente Mardones-Rojas, who appealed a decision by the Board of Immigration Appeals (BIA) that denied their motion to reopen deportation proceedings and adjust their immigration status. The BIA ruled that the petitioners' previous failure to comply with a voluntary departure order imposed a five-year ban on seeking relief, and they did not demonstrate "exceptional circumstances" to circumvent this ban. The Court of Appeals affirmed the BIA's decision.
Petitioners, who had lived in the U.S. since 1982 and had been employed and tax-compliant, initially entered the country on non-immigrant visas but became illegal aliens after their visas expired. They faced deportation proceedings initiated by the Immigration and Naturalization Service (INS) in 1991. During a hearing, they acknowledged their deportability and expressed intentions to seek suspension of deportation or voluntary departure. Additionally, Mrs. Mardones indicated a desire for asylum based on a class action settlement allowing Guatemalans in the U.S. since October 1, 1990, to pursue asylum hearings.
On December 13, 1993, the petitioners informed an Immigration Judge (IJ) that Mrs. Mardones' father had filed and received approval for a "third preference" immigrant visa petition for her, enabling her to pursue lawful immigrant status as the married daughter of a U.S. citizen. The process hinged on the availability of a visa depending on her assigned priority date on the Department of State's waiting list. Mr. Mardones, as her spouse, would receive the same status under the law.
During the hearing, the petitioners agreed to withdraw their requests for suspension of deportation and asylum, in return for a one-year postponement of voluntary departure until December 13, 1994. The IJ cautioned them that no further extensions would likely be granted and warned that failure to leave by the deadline would convert their voluntary departure into an order of deportation, triggering a five-year ban on seeking certain reliefs, including adjustment of status.
As the departure deadline approached in late 1994, Mrs. Mardones' priority number had not yet become current, prompting the petitioners to request a six-month extension from the INS, citing a new law that would allow them to adjust their status without leaving the U.S. However, the INS did not respond, and after the deadline, deportation orders were automatically issued against them.
In June 1995, with Mrs. Mardones' priority date finally current, the petitioners sought to reopen their deportation proceedings to adjust their status. However, they faced a significant barrier due to a provision stating that any alien who remains in the U.S. after their voluntary departure date is ineligible for certain forms of relief for five years unless exceptional circumstances exist.
Adjustment of status under INA §245(a) is subject to a five-year ban under INA §242B(e)(2)(A), which restricts relief unless "exceptional circumstances" are demonstrated. Petitioners sought to reopen their deportation proceedings six months after missing their departure deadline, claiming exceptional circumstances due to the enactment of INA §245(i), lack of INS response to their extension request, and their long-term residency and family ties in the U.S. The Immigration Judge (IJ) initially granted their motion to reopen and later approved their adjustment to permanent resident status, citing the enactment of INA §245(i) as an exceptional circumstance.
The INS appealed the IJ's decision to the Board of Immigration Appeals (BIA), which vacated the IJ's rulings, asserting that the circumstances claimed by the petitioners did not meet the "exceptional circumstances" standard. The BIA specifically rejected the significance of INA §245(i), family ties, timely application for adjustment, and the unaddressed extension request. The BIA ordered the petitioners' deportation.
The petitioners' appeal raises four key issues: the classification of INA §245(i) as an exceptional circumstance, the effect of the INS's inaction on their extension request, the BIA's authority to overturn the IJ's findings, and whether INA §245(i) supersedes the five-year ban under INA §242B. The review of BIA decisions is for abuse of discretion, with legal conclusions examined de novo, while giving deference to the BIA's interpretations of ambiguous INA provisions.
The petitioners argued that the enactment of §245(i) created exceptional circumstances that excused their failure to comply with a voluntary departure deadline. However, the BIA maintained that "exceptional circumstances" requires proof of inability to comply, not mere unwillingness. The BIA clarified that such circumstances, as defined by INA §242(f)(2), include serious illness or death of a close relative, neither of which applied to the petitioners.
Additionally, the petitioners contended that the INS's failure to act on their late request for an extension constituted an exceptional circumstance. The BIA disagreed, reasoning that allowing such claims could enable aliens to indefinitely postpone departure deadlines. The request was made too close to the deadline for a timely response from the INS, which had no obligation to act on it.
The petitioners also asserted that the BIA should have accepted the IJ's finding of exceptional circumstances, but the BIA clarified that it reviews IJ determinations de novo, except for credibility issues, which were not present in this case.
Finally, the petitioners claimed that §245(i) provided them a means of relief independent of the penalties under §242B. The BIA rejected this, stating that §245(i) did not alter the penalties for failing to comply with voluntary departure orders, asserting that while it changed the procedure for status adjustment, it did not eliminate the five-year ban for those who failed to depart as required.
The five-year penalty outlined in §242B is strictly enforced with no exceptions, except for "exceptional circumstances," which are deemed absent in this case. The statutes must be interpreted consistently: §245(i) allows aliens to apply for status adjustment without leaving the U.S., but §242B(e)(2)(A) prohibits such adjustment for five years if an alien fails to comply with a voluntary departure order. The petitioners violated §242B(e)(2)(A) and are therefore ineligible for status adjustment for five years, starting from December 13, 1994, the date they were required to depart. The Board of Immigration Appeals (BIA) ruling is affirmed. Additionally, past BIA decisions, such as In re Shaar, support the view that pending requests for relief do not constitute "exceptional circumstances" for failing to depart on time. The document also states that there are no credibility issues in this appeal, and thus no opinion is expressed on the BIA's review standards concerning credibility determinations made by Immigration Judges (IJs).
