Filed: Mar. 22, 2011
Latest Update: Feb. 21, 2020
Summary: 10-570-ag Manikam v. Holder BIA Straus, IJ A088 190 058 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
Summary: 10-570-ag Manikam v. Holder BIA Straus, IJ A088 190 058 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE ..
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10-570-ag
Manikam v. Holder
BIA
Straus, IJ
A088 190 058
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 22nd day of March, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 MELISSA DASHNIE MANIKAM,
14 Petitioner,
15
16 v. 10-570-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Robert C. Ross, West Haven, Conn.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Mark C. Walters, Senior Litigation
27 Counsel; Glen T. Jaeger, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED, that the petition for review
5 is DENIED.
6 Melissa Dashnie Manikam, a native and citizen of South
7 Africa, seeks review of a January 21, 2010, decision of the
8 BIA affirming the April 22, 2008, decision of Immigration
9 Judge (“IJ”) Michael W. Straus denying her motion for a
10 continuance and granting her request for voluntary departure
11 with an alternate order of removal. In re Melissa Dashnie
12 Manikam, No. A088 190 058 (B.I.A. Jan. 21, 2010), aff’g No.
13 A088 190 058 (Immigr. Ct. Hartford Apr. 22, 2008). We assume
14 the parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 The sole claim that the petitioner raises on appeal is
17 that her decision to file a petition for review in this Court
18 should not have had the effect, pursuant to 8 C.F.R. §
19 1240.26(i), of terminating the BIA’s grant of voluntary
20 departure.1 She argues that the application of this
1
Manikam abandoned in her opening brief the claim that
presumably prompted this appeal, that the agency’s denial of
her motion for a continuance constituted an abuse of
discretion, conceding that it would be frivolous to maintain
the argument on appeal.
2
1 regulation to her case was impermissibly retroactive, because
2 she had applied for and accepted voluntary departure from the
3 IJ prior to the regulation’s effective date. The government
4 contends that we lack jurisdiction to hear the petitioner’s
5 appeal on this issue.
6 As a general matter, we lack jurisdiction to review any
7 regulation issued by the Attorney General that limits an
8 alien’s eligibility for voluntary departure pursuant to 8
9 U.S.C. § 1229c(e). However, we retain jurisdiction to review
10 constitutional claims and “questions of law,” 8 U.S.C. §
11 1252(a)(2)(D), although this exception does not extend to a
12 “legal argument that is so insubstantial and frivolous as to
13 be inadequate to invoke federal-question jurisdiction.”
14 Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
15 Here, while we conclude that the petitioner’s retroactivity
16 claim is ultimately without merit, it is not so frivolous as
17 to deny us jurisdiction over the claim. See
id. at 41 n.6 (“If
18 an asserted constitutional claim or question of law is
19 colorable, we have jurisdiction to review it, whether or not
20 it is ultimately found to be meritorious.”).
21 Whether the challenged regulation has retroactive effect
22 is a legal question, which we review de novo, see Manzur v.
3
1 DHS, 494 F.3d 281, 288 (2d Cir. 2007). While Congress can
2 delegate to an agency the power to engage in retroactive
3 rulemaking through a sufficiently clear statement, see City of
4 New York v. Permanent Mission of India to United Nations, 618
5 F.3d 172, 195 (2d Cir. 2010), the regulation at issue here
6 specifically disclaims any retroactive effect, see Voluntary
7 Departure: Effect of a Motion to Reopen or Reconsider or a
8 Petition for Review, 73 Fed. Reg. 76,927, 76,936 (Dec. 18,
9 2008) (codified at 8 C.F.R. pts 1240 & 1241). The inquiry
10 thus becomes whether this regulation, despite claiming to
11 operate prospectively only, has retroactive effect in its
12 application in this case. A regulation has such an effect
13 “when it takes away or impairs vested rights acquired under
14 existing laws, or creates a new obligation, imposes a new
15 duty, or attaches a new disability, in respect to transactions
16 or considerations already past.” Samuels v. Chertoff, 550
17 F.3d 252, 260 (2d Cir. 2008) (quoting INS v. St. Cyr,
533 U.S.
18 289, 321 (2001)). In deciding whether a particular statute or
19 regulation acts retroactively, we are “informed and guided by
20 familiar considerations of fair notice, reasonable reliance,
21 and settled expectations.” St.
Cyr, 533 U.S. at 321 (internal
22 quotation marks omitted).
4
1 As a preliminary matter, the challenged regulation does
2 not in fact prevent a petitioner in Manikam’s position from
3 bringing a petition for review of the BIA’s decision to this
4 Court while remaining entitled to a grant of voluntary
5 departure. It merely requires that, to pursue such an appeal,
6 the alien depart the United States within 30 days of filing
7 the petition for review and provide evidence to DHS that she
8 has departed and remains outside the United States while her
9 appeal is pending. See 8 C.F.R. § 1240.26(i); cf. Samuels,
10 550 F.3d at 260 (noting, in finding a regulation not to have
11 retroactive effect, that it did not make it impossible for an
12 immigrant to obtain a certain waiver but rather simply made it
13 more difficult).
14 Conditioning entitlement to voluntary departure on such
15 a restriction of the petitioner’s ability to seek review of a
16 BIA decision simply does not constitute an impairment of any
17 settled expectation on the petitioner’s part. As the
18 government notes, the decision to grant voluntary departure is
19 a discretionary one, such that a petitioner cannot ordinarily
20 be thought to have a settled expectation in receiving this
21 “discretionary form of relief.” Dada v. Mukasey,
554 U.S. 1,
22 8 (2008). Even after the petitioner was initially granted
5
1 voluntary departure by the IJ in April 2008, she cannot be
2 said to have a settled expectation of a stay of the order
3 while pursuing an appeal before this Court, as such a stay is
4 also a discretionary remedy that depends in part on the
5 petitioner’s likelihood of success on appeal. See Thapa v.
6 Gonzales, 460 F.3d 323, 329, 334 (2d Cir. 2006); see also Nken
7 v. Holder,
129 S. Ct. 1749, 1757 (2009) (“A stay . . . ‘is not
8 a matter of right . . . .’” (quoting Virginian Ry. Co. v.
9 United States,
272 U.S. 658, 672 (1926)).
10 Further, despite the petitioner’s contention, the
11 regulation at issue in this case “does not alter the quid pro
12 quo between the Government and the alien.”
Dada, 554 U.S. at
13 21. Here, the government has not “received benefits without
14 costs,”
id., but rather simply conditionally granted the
15 petitioner voluntary departure as an alternative to
16 deportation after both the IJ and BIA denied her request for
17 a continuance. There is simply no basis for concluding that
18 in deciding to accept voluntary departure under these
19 circumstances the petitioner was reasonably relying on a
20 continued ability to seek a stay of the voluntary departure
21 order while seeking judicial review of a BIA decision or that
22 her quid pro quo with the government was otherwise altered.
6
1 Finally, the BIA provided Manikam with fair notice that
2 filing a petition for review would terminate the agency’s
3 grant of voluntary departure. Whatever ambiguity existed as
4 to the new rule’s scope of application when it was originally
5 published for comment, at the time Manikam decided to bring a
6 petition for review to this Court, she had clear notice from
7 the text of the regulation as well as from the BIA decision
8 itself that in doing so she would lose her entitlement to
9 voluntary departure. In light of these considerations, it is
10 evident that 8 C.F.R. § 1240.26(i) did not have an
11 impermissible retroactive effect in its application to the
12 proceedings in Manikam’s case.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument in
18 this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
7
