Section 242B(e) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996), prohibits an alien who has remained in the United States after the scheduled date of voluntary departure from applying for certain forms of relief, including an adjustment of status, for a period of five years.1 A proper showing of "exceptional circumstances" is the only escape from the clear strictures of that provision. See 8 U.S.C. §§ 1252b(e)(2)(A), (f)(2) (repealed 1996).

In this appeal, we must decide whether the failure of the immigration authorities to adjudicate a timely and properly filed motion to reopen during the pendency of the period of voluntary departure falls within the "exceptional circumstances" exception to section 242B(e). We hold that a motion to reopen that has not been intentionally delayed and has been filed prior to the date of voluntary departure, but not acted upon by the immigration authorities, falls within the "exceptional circumstances" exception, and thus we grant Barrios's Petition for Review.

In December of 1988, Miguel Castro Barrios, a native and citizen of Chile, was lawfully admitted to the United States as a visitor for pleasure for the period ending on June 27, 1989. At the time of his entry, Barrios was nine years of age. He has remained in the United States since that time, receiving the majority of his education in American schools.

On July 1, 1996, the then-Immigration and Naturalization Service ("INS")2 served Barrios with an Order to Show Cause, charging him with deportability under section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B), as an overstay. After the conclusion of the deportation proceedings,3 in which the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") found Barrios deportable as charged and denied his application for suspension of deportation, the BIA granted Barrios voluntary departure in lieu of deportation through April 26, 2003.

Barrios never left the United States, and on April 10, 2003, he married a United States citizen, Ms. Stacy Kuspiel. Five days later, on April 15, 2003, Kuspiel filed an Alien Relative Petition (Form I-130) on Barrios's behalf with the United States Bureau of Citizenship and Immigration Services, seeking to secure him permanent resident status as the spouse of a United States citizen. Thereafter, on April 18, 2003, eight days before his voluntary departure period expired, Barrios filed a motion to reopen his deportation proceedings with the BIA to allow for consideration (by the IJ) of his application for adjustment of status based upon his recent marriage.4

When the BIA finally considered the motion to reopen on June 30, 2003, it denied the motion based on section 242B(e) of the INA, 8 U.S.C. § 1252b(e). That section prohibits an alien who has remained in the United States past the relevant period of voluntary departure from applying for an adjustment of status for a period of five years, absent a showing of exceptional circumstances for failing to depart. Inasmuch as Barrios remained in the United States beyond his voluntary departure date, the BIA determined that he was statutorily ineligible for an adjustment of status, notwithstanding his then-recent marriage to a United States citizen. See 8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the pendency of a request for relief-in that case, a motion to reopen deportation proceedings filed just prior to the departure date-failed to constitute an "exceptional circumstance" justifying a failure to timely depart.5

Because Barrios was placed in deportation proceedings prior to April 1, 1997, and his final order of deportation was entered by the BIA after October 31, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). See Sandoval v. Reno, 166 F.3d 225, 229-31 (3d Cir.1999) (applying IIRIRA's transitional rules to jurisdiction).

We review the BIA's denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992). We review the BIA's legal conclusions de novo, with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles. Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d Cir.2001). We are also mindful of" `the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.'" INS v. St. Cyr, 533 U.S. 289, 320, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (quoting INS v. Cardoza — Fonseca, 480 U.S. 421, 449, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987)).

Barrios argues that he is eligible for an adjustment of status based on his marriage to a United States citizen. He further argues that he filed the motion to reopen with the BIA in a timely manner, prior to his voluntary departure date, and that the administrative delay of the BIA in adjudicating his motion should not deprive him of the relief to which he is entitled. Insofar as Matter of Shaar compels a contrary conclusion, he argues that it should be rejected as a draconian and unreasonable interpretation of 8 U.S.C. § 1252b(e)(2)(A).

Inasmuch as Barrios's deportation proceedings commenced prior to the effective date of the IIRIRA, the governing statutory provisions are found in the now-repealed section 242B(e)(2)(A) of the INA,7 which provides, in relevant part: [A]ny alien allowed to depart voluntarily under section 1254(e)(1) of this title or who has agreed to depart voluntarily at his own expense under section 1252(b)(1) of this title who remains in the United States after the scheduled date of departure, other than because of exceptional circumstances, shall not be eligible for relief described in paragraph (5) for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively.

INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996) (emphasis added). The relief that is unavailable due to a failure to voluntarily depart includes adjustment of status. Id. § 242B(e)(5)(C), 8 U.S.C. § 1252b(e)(5)(C) (repealed 1996). For purposes of the voluntary departure provisions, "[t]he term `exceptional circumstances' refers to exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien." Id. § 242B(f)(2), 8 U.S.C. § 1252b(f)(2) (repealed 1996).

Here, the precise question is whether Barrios's timely filing of a motion to reopen deportation proceedings before his scheduled voluntary departure date constitutes the requisite "exceptional circumstances" to overcome the statutory bar. We conclude that it does, thereby rejecting the BIA's construction of the statute in Matter of Shaar.

We begin our discussion with Matter of Shaar, 21 I & N Dec. 541, a case involving substantially similar facts to those of the present appeal. There, after the completion of deportation proceedings, the INS granted the Shaars the privilege of voluntary departure. Three days prior to the expiration of their voluntary departure period, the Shaars moved to reopen their case in order to apply for suspension of deportation. By that time, they had accrued the requisite seven years to qualify for such relief. See 8 U.S.C. § 1254(a)(1) (repealed 1996).

However, the en banc BIA, in a 7-5 decision, with four strong separate dissenting opinions, held that an alien who has filed a motion to reopen during the pendency of a voluntary departure period, but who subsequently remains in the United States after the scheduled date of departure, is statutorily ineligible for suspension of deportation pursuant to section 1252b, absent a showing that the alien's failure to depart timely was due to "exceptional circumstances." Id. at 548-49. The BIA further held that neither the filing of a motion to reopen during the pendency of a period of voluntary departure, nor the IJ's failure to adjudicate the motion prior to the expiration of the alien's voluntary departure period, constituted an "exceptional circumstance." Id. Accordingly, the BIA denied the Shaars' motion to reopen. Id.

The Ninth Circuit affirmed, in a 2-1 panel decision, finding no fault with the BIA's reading of the statute. Shaar v. INS, 141 F.3d 953, 956 (9th Cir.1998). That court concluded that the language of the statute was unambiguous and evinced a congressional intent to "control untoward delays" in the immigration system. Id. In addition, the court acknowledged that Congress provided "a single escape from the strictures of the provision-exceptional circumstances." Id. at 957. That escape, however, was foreclosed because no such circumstances were present in the case. Id.

Of particular relevance here, the Ninth Circuit held that the mere filing of a motion to reopen does not constitute "exceptional circumstances" within the meaning of the statute. Id. Nor was the court impressed with the Shaars' claim that the hearing date scheduled for their request to reopen was beyond their control, and thus compelling. As the court stated, "[i]t was hardly exceptional that the IJ could not reach [the Shaars'] petition to reopen within the two or three days ... which they saw fit to give him." Id.

Although mindful of the deference normally due to the agency's interpretation of the INA, we cannot agree that Matter of Shaar is a permissible interpretation of the statute, at least insofar as the BIA narrowly construed the "exceptional circumstances" provision to exclude the good faith filing of a motion to reopen deportation proceedings within the voluntary departure period. Such an interpretation is unwarranted for two principal reasons. First, the statute does not define "exceptional circumstances" other than to provide that they should be at least as compelling as those caused by serious illness or the death of an immediate relative. See 8 U.S.C. § 1252b(f)(2). Second, and more importantly, the BIA's construction of the statute elevates and promotes the date of adjudication over the date of filing. We cannot agree that such a construction is reasonable and comports with congressional intent.

Judge Browning, who wrote in dissent in Shaar, went to great lengths to expose the flaws of the BIA's interpretation. See Shaar, 141 F.3d at 959-64 (Browning, J., dissenting). The dissent charged:

[The majority's] interpretation ignores Congress' intent that aliens be permitted to file, and the Immigration and Naturalization Service ... be required to hear, a single, timely-filed, meritorious motion to reopen; it treats similarly situated aliens in a disparate manner, and forces aliens to forgo congressionally-authorized relief or face a substantial penalty. It is both unreasonable and arbitrary.

Id. at 959. The interpretation was unreasonable, Judge Browning argued, because it "rests on the premise that Congress intended to allow aliens to file certain motions to reopen, but to preclude immigration judges from hearing them." Id. (citing 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 3.2 (authorizing aliens to file motions to reopen)). It was arbitrary because it "assumes Congress intended that an alien's opportunity to obtain relief depend not on the merits of the alien's application, but on whether a randomly assigned tribunal happens to act on the motion within the alien's period of voluntary departure." Id. at 960.

The dissenting opinion noted another respect in which the majority's interpretation was arbitrary: the disparate treatment of appeals and motions to reopen. The BIA has preserved an alien's right to pursue a meritorious appeal without sacrificing the benefits of voluntary departure. See Matter of Chouliaris, 16 I. & N. Dec. 168, 170 (BIA 1977) (holding that an appeal from an immigration judge's decision tolls the voluntary departure period). "Yet the majority presents aliens with an even starker dilemma: Leave at the end of the voluntary departure period and thereby forfeit the right to suspension of deportation granted by Congress, or remain, forgo a hearing on the merits, and be precluded from relief for five years." Shaar, 141 F.3d at 960 (Browning, J., dissenting).8 According to Judge Browning, such disparate treatment lacks sufficient justification, especially in light of the shared "critical similarity — Congress has authorized both." Id.

We find the reasoning in the Shaar dissent persuasive. We thus hold that the failure of the immigration authorities to act on a legitimate application for relief filed within the voluntary departure period is an exceptional circumstance "beyond the control of the alien." 8 U.S.C. § 1252b(f)(2); see Shaar, 141 F.3d at 964 (Browning, J., dissenting). The loss of a legitimate claim for relief from deportation, based solely on the INS's failure to act within the period in question, is, in our view, sufficiently compelling to invoke the exception provided in section 1252b(e)(2)(A). In so holding, we reject the reasoning of the Ninth Circuit in Shaar v. INS,9 which affirmed Matter of Shaar as a permissible construction of section 1252b(e)(2)(A).10

We are satisfied that the critical date in this case is the date a motion to reopen is filed rather than the date it is adjudicated by the immigration authorities. Interpreting "exceptional circumstances," as we do, to include the loss of a legitimate claim for relief from deportation based on no fault of the alien and on no intent to delay deportation is consistent with that understanding. Moreover, such an interpretation, as Judge Browning properly noted, would be "consistent with Congress' intent to allow aliens with valid claims to reopen their deportation proceedings, and would avoid the absurd, arbitrary, and likely unconstitutional results that will follow from the interpretation adopted by [the Ninth Circuit in Shaar v. INS]."11 Shaar, 141 F.3d at 964 (Browning, J., dissenting).

Our holding finds further support in a very recent decision from the Ninth Circuit, which revisited the same problem addressed in Shaar, albeit in the context of a different statutory scheme. In Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005), the Ninth Circuit was dealing with the post-IIRIRA voluntary departure provision, 8 U.S.C. § 1229c(d), whereas here we deal with the pre-IIRIRA voluntary departure provision, 8 U.S.C. § 1252b(e)(2)(A). Although our holding must be limited to the pre-IIRIRA statutory scheme, and thus we express no opinion with respect to the post-IIRIRA provisions, we believe that the Azarte rationale is fully applicable here.

In Azarte, the Ninth Circuit, interpreting the post-IIRIRA voluntary departure provision, held "that in cases in which a motion to reopen is filed within the voluntary departure period ... the voluntary departure period is tolled during the period the BIA is considering the motion." 394 F.3d at 1289. In reaching that holding, the court refused to apply Shaar, which concerned the pre-IIRIRA statute, 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996), to post-IIRIRA cases, stating that certain changes in both the statute and practice compelled a new interpretation. Id. at 1286-87.

Prior to the IIRIRA, the court noted, there was no statutory authorization for motions to reopen. With the enactment of the IIRIRA in 1996, motions to reopen were transformed from a regulatory to a statutory form of relief. Id. (citing 8 U.S.C. § 1229a(c)(6)(A) (1996)). Quoting Judge Browning's dissent in Shaar, the court found it "absurd to conclude that Congress `intended to allow motions to reopen to be filed but not heard.'" Id. (citing Shaar, 141 F.3d at 960 (Browning, J., dissenting)).

We agree that it is contrary to congressional intent to allow aliens to file motions to reopen but afford them no reasonable opportunity to receive a ruling on the merits. The Ninth Circuit reached this conclusion only after the promulgation of the relevant statutory changes in the IIRIRA, focusing on a possible statutory conflict between the voluntary departure and motion to reopen provisions.

Contrary to Azarte, which was concerned primarily with the post-IIRIRA statutes,12 we believe, as we have stated, that the Azarte result should obtain in the pre-IIRIRA context as well. This is because both statutory schemes implicate a deeper juridical problem, which results from placing greater emphasis on the date of adjudication rather than on the date of filing.

We thus conclude that the proper construction of the pre-IIRIRA voluntary departure provision requires that aliens be afforded a reasonable opportunity to receive a ruling on the merits of a timely-filed motion to reopen.13

Accordingly, we will GRANT the Petition for Review of the BIA's decision, and remand this matter to the BIA for further proceedings consistent with this opinion.