H.: Corrupt Cops Fact Of Life; Ability to Review Voluntary Departure Cases

Filed 10/27/05, No. 04-3343
H. v. Gonzales
Non-precedential (not binding authority)
Note, the true case name has the immigrant's surname, but we are referring to the immigrant by a single initial in this blog posting because of the immigrant's fear of returning to her country and that the case is non-precedential.

The Third Circuit Court of Appeals in a non-precedential decision denied the asylum seeker's request for asylum or any other type of relief and refused even to consider her request that the Third Circuit extend her time for voluntary departure while she continues to appeal the case.

Regarding asylum, the Third Circuit noted (but it's unclear to me whether it approved) the immigration judge's finding that the fact that "the police did not respond adequately or expected bribes in order to provide protection also did not establish persecution because corrupt police officers are a 'universal fact,' like criminal behavior." What a sad view of the world to say that corruption in law enforcement is a universal fact that does not constitute persecution.

Turning to the court's jurisdiction, the Third Circuit ruled that it could hear the appeal even though the immigrant took voluntary departure, but that it had no power to extend the voluntary departure period because the only ones who could do that were the immigration judge, the BIA, or the Attorney General's delegees such as the district director.

In Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir. 2004), the Third Circuit ruled that it could hear an appeal even after the immigrant took advantage of voluntary departure. It says that other circuit courts disagree with this view, citing:

Bocova v. Gonzales, 412 F.3d 257, 266–267 (1st Cir. 2005) (holding that it did not have jurisdiction to reinstate or fashion a new order of voluntary departure); Mullai v. Ashcroft, 285 F.3d 635, (6th Cir. 2004) (holding that it did not have power to reinstate expired order of voluntary departure); Ngarurih v. Ashcroft, 371 F.3d 182, 192–194 (4th Cir. 2004) (holding that it did not have jurisdiction to reinstate or stay an order of voluntary departure); Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir. 2004) (refusing to stay an expired order of voluntary departure but not explicitly ruling on the jurisdictional question).

The Third Circuit then noted its ruling that it had no power to extend a period of voluntary departure. It said other circuit courts disagree with this view, citing:

Bocova, 412 F.3d at 266–267 (holding that it had jurisdiction to stay an unexpired order of voluntary departure pending judicial review of the removal order); Macotaj v. Gonzalez, 412 F.3d 704, 706–707 (6th Cir. 2005) (holding that it has authority to stay an order of voluntary departure as ancillary to a motion to stay removal); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653–654 (7th Cir. 2004) (holding that it had authority to stay unexpired period of voluntary departure); Rife v. Ashcroft, 374 F.3d 606, 615–616 (8th Cir. 2004) (holding that court retains power to stay an order of voluntary departure); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (holding that court retains equitable jurisdiction to stay an unexpired order of voluntary departure). But see Ngarurih, 371 F.3d at 192–194 (4th Cir. 2004) (holding that it did not have jurisdiction to reinstate or stay an order of voluntary departure even when motion was filed within period for departure).