Sierra Vidal, et al v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
June 27, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-60070
LUIS ERNESTO SIERRA VIDAL;
VIVIANA SIERRA HERNANDEZ;
SANDRA PATRICIA HERNANDEZ HURTADO
Petitioners,
versus
ALBERTO R GONZALES, U.S. Attorney General
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Luis Ernesto and his family filed a motion for stay of a
voluntary departure order pending the outcome of their petition for
review to this court. Noting that our jurisdiction to issue such
a stay was uncertain, and that the petitioner’s voluntary departure
deadline was looming, we denied the motion, concluding that the
merits of the petitioner’s underlying claim did not justify a stay,
and stating that an opinion explaining the jurisdictional basis of
our decision would follow. Today we offer the explanation.
I
It is plain that we have no jurisdiction to review the merits

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18 U.S.C. § 1229c(f) ("No court shall have jurisdiction over an appeal from
denial of a request for an order of voluntary departure ....").
2See Bocova v. Gonzales, 412 F.3d 257 (1st Cir.2005); Thapa v. Gonzales,
460 F.3d 323 (2d Cir. 2006); Obale v. Attorney Gen. of the United States, 453
F.3d 151 (3d Cir.2006); Nwakanma v. Ashcroft, 352 F.3d 325 (6th Cir.2003);
Lopez-Chavez v. Ashcroft, 383 F.3d 650 (7th Cir.2004); Rife v. Ashcroft, 374 F.3d
606 (8th Cir.2004); El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir.2003).
3See Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir.2004).
4See 28 U.S.C. § 2349(b), incorporated by reference in 8 U.S.C. §
1252(a)(1).
5See Rife v. Ashcroft, 374 F.3d 606, 615 (8th Cir. 2004) (citing Fed.
R.App. P. 8).
2
of an executive decision on a request for voluntary departure.1
However, it is an open question whether, once the attorney general
has granted voluntary departure, we then have jurisdiction to toll
the period of voluntary departure so to preserve the status quo
during our review of the petitioner’s case. We hold that we have
jurisdiction to issue such stays, a conclusion supported by
decisions of the First, Second, Third, Sixth, Seventh, Eighth, and
Ninth Circuits.2 Only the Fourth Circuit has reached the opposite
result.3
In determining our jurisdiction to stay an immigration order,
we begin with the rule that, “the court of appeals in its
discretion may restrain or suspend, in whole or in part, the
operation of the order pending the final hearing and determination
of the petition.”4 Or more broadly stated, “[t]he grant or denial
of a stay pending appeal is a customary part of the judicial
function.”5

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6See 8 U.S.C. § 1229c(b)(1).
3
The government argues that Congress, through the IIRIRA, has
restricted this customary function. The IIRIRA precludes review of
a denial of voluntary departure, providing in 8 U.S.C. § 1229c(f)
that “[n]o court shall have jurisdiction over an appeal from denial
of a request for an order of voluntary departure, nor shall any
court order a stay of an alien's removal pending consideration of
any claim with respect to voluntary departure.” The IIRIRA also
precludes review of a grant of voluntary departure, providing in §
1252(a)(2)(B) that “[n]otwithstanding any other provision of law,
no court shall have jurisdiction to review-(I) any judgment
regarding the granting of relief under section ... 1229c.”
As a clear majority of circuits has held, these provisions
strip our jurisdiction to review only the executive branch’s
substantive judgment about whether the alien met the statutory
qualifications for a voluntary departure.6 They do not limit our
power to toll the period of voluntary departure, already granted by
the agency, pending our review of the underlying removal decision.
A plain reading of the statute supports this conclusion. The first
clause of section 1229c(f) applies only to denials of voluntary
departure. Here voluntary departure has been granted by the
agency. The second clause of section 1229c(f) limits only our
jurisdiction to stay removal pending consideration of any claim
with respect to voluntary departure. Yet here we issue a stay to

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78 C.F.R. § 1240.57.
88 C.F.R. § 1240.26(f).
9Khalil v. Ashcroft, 370 F.3d 176, 181 (1st Cir. 2004); see 8 U.S.C. §
1229c(b) (describing the circumstances in which "[t]he Attorney General may
permit an alien voluntarily to depart the United States"); 8 C.F.R. § 1240.26
(regulation labeled as "Voluntary departure-authority of the Executive Office for
Immigration Review").
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consider an alien’s challenge to the executive’s determination of
removability, not its determination with respect to voluntary
departure. This latter reasoning applies also to section
1252(a)(2)(B).
The government also argues that 8 C.F.R. §§ 1240.57 and
1240.26(f) vest the Attorney General with exclusive authority to
stay or extend voluntary departures. Section 1240.57 of the
regulations states that “[a]uthority 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 . . . no appeal may be taken therefrom.”7
And section 1240.26(f) of the regulations states that “[a]uthority
to extend the time within which to depart voluntarily specified
initially by an immigration judge or the Board is only within the
jurisdiction of the district director.”8
However, as the First Circuit observed, that regulation, as
well as its statute, both describe the authority of the Attorney
General, not that of the courts.9 Our authority comes instead from
8 U.S.C. § 1252(a)(1), which provides that “[j]udicial review of a
final order of removal ... is governed only by chapter 158 of Title

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1028 U.S.C. § 2349(b); Khalil, 370 F.3d at 181.
11Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653 (7th Cir. 2004).
12See Bocova v. Gonzales, 412 F.3d 257, 267 (1st Cir. 2005) (quoting 8
C.F.R. § 1240.26(d)).
13Id.
5
28.” That chapter in turn provides that “[t]he filing of the
petition to review does not of itself stay or suspend the operation
of the order of the agency, but the court of appeals in its
discretion may restrain or suspend, in whole or in part, the
operation of the order pending the final hearing and determination
of the petition.”10 The Seventh Circuit has also dismissed the
government’s argument, agreeing that the regulations do not
regulate the authority of the courts.11
Nor can it be argued that an order allowing a period for
voluntary departure is not a final order of removal, as provided in
section 1252. The First Circuit has persuasively rejected this
argument, explaining that “as a formal matter, orders of removal
and grants of voluntary departure are entered as alternative
orders” that comprise different facets of a single judgment.12 In
other words, “they are complementary; the BIA may grant a period of
voluntary departure, but if the alien overstays the allotted
period, that part of the order effectively disintegrates and the
removal component takes effect.”13 The First Circuit concluded by
pointing to the absurd results that would attend the government’s
proposed construction of the statute, explaining that “taken to its

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14Id. at 268.
15See INS v. Errico, 385 U.S. 214, 225 (1966); INS v. St. Cyr, 533 U.S.
289, 320 (2001).
16Miller v. French, 530 U.S. 327, 336 (2000).
17This court applies the general criteria provided for injunctions pending
appeal. See Fed.R.App.P. 8, 18. In Ignacio v. I.N.S., we described the criteria
as follows: “a movant must show: (1) a likelihood of success on the merits; (2)
that irreparable harm would occur if a stay is not granted; (3) that the
potential harm to the movant outweighs the harm to the opposing party if a stay
is not granted; and (4) that the granting of the stay would serve the public
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logical extreme, the government’s argument would require us to find
that we have no jurisdiction to entertain a petition for review
unless and until the petitioner has overstayed his voluntary
departure deadline because only then is the removal order actually
entered against him.”14
Although both parties argue from the text of the IIRIRA, we
find the petitioner’s interpretation more persuasive. We are
emboldened in this conclusion not only by the light of seven sister
circuits, but also by the pull of twin cannons of statutory
construction, one requiring narrow construction in favor of
aliens,15 and the other requiring the clearest command for
jurisdiction stripping.16 Both cannons resolve any statutory
doubt in favor of our jurisdiction to stay a voluntary departure
order.
II
Yet we declined to stay the executive’s order because
petitioner could not show a likelihood of success on the merits of
their underlying claims.17 We reviewed the BIA's denial of asylum

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interest.” 955 F.2d 295, 299 (5th Cir. 1992).
188 U.S.C. § 1252(b)(4)(B).
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for substantial evidence, accepting the BIA's findings of fact,
including credibility determinations, as findings are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole. The IJ's fact-based determination of an
alien's entitlement to asylum must be upheld unless “any reasonable
adjudicator would be compelled to conclude to the contrary.”18
The IJ questioned the aliens credibility, noting “substantial
inconsistencies” between his testimony and the sworn statement that
was submitted in connection with his application for relief. This
credibility determination is supported by substantial evidence, as
the IJ details in his order two such inconsistences. In addition,
the IJ rejected the alien's claim that he would be confused with
his brother, an alien who indeed suffered persecution in Columbia
and to whom this country has already granted asylum. This
conclusion is also supported by substantial evidence, as the
alien's brother was a military officer who had received specific
death threats related to his career.
Though we conclude that we have jurisdiction to stay a
voluntary departure order, the merits of petitioners’ underlying
claims in this case did not warrant a such a stay. For these
reasons, the motion was DENIED.

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