Preserving Due Process: Staying Voluntary Departure Periods in Immigration Proceedings with the Constitutional Avoidance Canon

Erika Lucas, Preserving Due Process: Staying Voluntary Departure Periods in Immigration Proceedings with the Constitutional Avoidance Canon, 42 Gonz. L. Rev. 299 (2007).

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I. Introduction

A voluntary departure period is a form of discretionary relief, granted by the attorney general, which allows an alien subject to deportation to leave the country under his or her own volition, thus avoiding many of the negative aspects of forced deportation.[1] In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”)[2] and the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”).[3] This led to a disagreement among circuit courts as to whether the judiciary has the authority to stay an alien’s voluntary departure period pending the completion of an appeal.

Part II of this comment explains the procedure for removing an allegedly deportable alien from the United States. Part III discusses the voluntary departure period under the IIRIRA, including the idea of due process in the immigration context. Part IV examines the plain language of the relevant sections of the IIRIRA, and the legislative intent in enacting this statute. Part V argues that Congress is bound to provide a meaningful review to aliens, which includes allowing courts to stay an alien’s voluntary departure period, regardless of its intent in enacting the IIRIRA. Part VI states that circuit courts, which interpret the IIRIRA in a manner that denies courts the ability to stay voluntary departure periods, should instead adopt an alternative statutory interpretation that avoids constitutional problems. Part VII concludes by suggesting that courts adopt the First and Eighth Circuits’ interpretations of the IIRIRA.

II. Deportation Process or “Removal Proceeding”

The Executive Office for Immigration Review (“EOIR”) includes the Board of Immigration Appeals (“BIA”) and an Immigration Judge (“IJ”).[4] The attorney general appoints the IJ, who then conducts immigration proceedings.[5] During the deportation process, the alien must appear before the IJ for a “removal proceeding,” at which time the IJ determines whether the alien is deportable and if they are entitled to any forms of relief.[6] The alien may subsequently appeal the decision of the IJ to the BIA, and then to federal court.[7] %CODE2%
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III. Background: Voluntary Departure Periods Since 1996

After a finding that an alien must leave the United States, the IJ may grant the alien a voluntary departure period, which allows the alien to leave at her own expense, during a period of time determined by the IJ on a case-specific manner.[8] Voluntary departure permits aliens to choose their own destinations and put their affairs in order without being taken into custody. Additionally, it facilitates the possibility of their return to the Untied States and allows them to avoid the penalties associated with forced deportation.[9] While an alien’s voluntary departure before the underlying immigration decision has been completed does not moot a future appeal, it does make an appeal difficult to pursue.[10] Should an alien fail to depart voluntarily while the option to appeal is available, she will incur penalties.[11]

Before the IIRIRA, aliens generally received automatic stays of deportation when appealing for a review of a deportation order.[12] However, under the IIRIRA, appealing an order for removal no longer stays an alien’s removal pending the court’s decision on the petition.[13] Further, current regulations state that only certain immigration officials have the ability to extend an alien’s voluntary departure period.[14] This shift in decision-making power has since lead to a circuit split as to whether courts have jurisdiction to stay voluntary departure periods.[15]

A. Circuit Court Decisions

In the Seventh Circuit case, Lopez-Chavez v. Ashcroft, the court noted that the voluntary departure period almost always expired before a court reached a decision on appeal, and therefore found that courts had the power to stay the voluntary departure period until the completion of appellate review.[16] Similarly, the First Circuit, in Bocova v. Gonzales, held that it had the authority to stay an alien’s voluntary departure period if the alien made the motion to stay before the period’s expiration.[17] Using the same reasoning, the Eighth Circuit, in Rife v. Ashcroft, found it could stay voluntary departure periods under the same circumstances.[18]

The Sixth Circuit granted a motion to stay a period of voluntary departure in Nwakanma v. Ashcroft,[19] and then expanded on this decision in Macotaj v. Gonzales by granting a stay of a voluntary departure period for an alien that had timely filed a motion to stay removal, but failed to file a motion to stay the voluntary departure period before the period itself had expired.[20] Likewise, the Ninth Circuit, in Desta v. Ashcroft, also found that the court could stay voluntary departure periods, and that an alien did not need to file for a motion to stay the voluntary departure period before the expiration of such period in order for the court to provide the stay.[21]

Despite apparent circuit court agreement on this issue, the Third and Fourth Circuits have decided that courts do not have the ability to alter the period for voluntary departure. In Reynoso v. Ashcroft, the Third Circuit merely stated that it did not have the authority to either extend or reinstate the period of voluntary departure granted by the BIA.[22] While it did not explicitly state that it did not have the authority to stay a voluntary departure period in Reynoso, the Third Circuit noted that the alien requesting relief had made the motion before the expiration of the departure period granted by the BIA, and held that only the executive could determine when an alien must depart.[23]

Because the IIRIRA does not cut off appellate jurisdiction after an alien leaves the country, the Fourth Circuit found that there is no need to stay a period of voluntary departure.[24] In Ngarurih v. Ashcroft, the Fourth Circuit found that since it lacked jurisdiction over the BIA’s order in the first place, it was unable to stay voluntary departure periods.[25]

B. Statutory Interpretation of the IIRIRA

The relevant statutory sections of the IIRIRA for determining whether a court may stay voluntary departure periods are 8 U.S.C. § 1229c, entitled “Voluntary Departure,”[26] and 8 U.S.C. § 1252, entitled “Judicial Review.”[27] When interpreting a statute the starting point must be the plain language and ordinary meaning of the words used by Congress.[28] The headings and structure of the statute are also informative when constructing a statute.[29] When the statutory language is ambiguous, consultation of the statute’s legislative history may provide the reasoning behind why Congress enacted a statute thereby aiding in the statute’s interpretation.[30]

C. Due Process

Even though Congress holds plenary, or complete, power over immigration law with few constitutional limits,[31] it may not disregard the fundamental principles of due process.[32] Because deportation is a constitutional deprivation, the government must afford an alien a meaningful review of her case.[33] The Mathews v. Eldridge test[34] determines what procedural steps are necessary during a review process to ensure meaningful review, and is applicable to voluntary departure periods.[35]

Before the IIRIRA, aliens were unable to continue appeals from abroad.[36] Even though the IIRIRA eliminated the dilemma of choosing between voluntarily departing and pursuing an appeal, appealing from abroad remains difficult.[37] Further, given the sanctions associated with overstaying the voluntary departure period, the reality is that under the IIRIRA, little has changed regarding the unfair choice aliens must make in the appeals process.[38] Aliens who are granted voluntary departure periods, but wish to appeal their cases, are not afforded a review at a time that would make the appeal meaningful in terms of due process as mandated by the Constitution.[39]

According to the canon of constitutional avoidance, if there is more than one interpretation of a statute, the court must choose the interpretation which would not create constitutional problems.[40] The Supreme Court has used the constitutional avoidance canon a number of times in dealing with changes made to deportation regulations by the IIRIRA.[41] In invoking this approach to statutory interpretation, the Court has noted that Congress, which swears an oath to uphold the Constitution, would not be assumed by courts to intend to infringe upon constitutional rights or take powers which are constitutionally forbidden.[42] The Court, therefore, considers the consequences of its choice between two plausible statutory constructions and uses the construction that does not conflict with the Constitution.[43]

IV. Congress Did Not Intend to Give Courts Jurisdiction to Stay Voluntary Departure Periods

A. Plain Language

The plain language of Subsection 1229c(f) of the IIRIRA states that a court can only review cases concerning voluntary departure periods after the BIA has granted such a period to an alien, and then when reviewing such a case, the court can stay the removal of the alien.[44] Because this subsection does not explicitly forbid courts from staying voluntary departure periods granted by the BIA, the majority of circuit courts have read this subsection as allowing the stay of voluntary departure periods.[45] However, this is a narrow reading of the statute, which does not take into account the totality of Section 1229c (voluntary departure), or Section 1252 (judicial review), which together clearly express a legislative intent to forbid courts from staying voluntary departure periods.[46] The Supreme Court has stated that when attempting to determine a statute’s legislative intent, it is necessary to consider the structure and headings of the statute, which are just as instructive as the statute’s language itself.[47]

Congress entitled Section 1229c “Voluntary Departure” and located it within Part IV of the statute, under the heading “Inspection, Apprehension, Examination, Exclusion, and Removal.”[48] This heading therefore governs all components of the removal process because Congress included voluntary departure as a subsection of Part IV, rather than as its own separate section.[49] Also, a thorough review of the statutory language indicates that voluntary departure is merely part of the whole removal process.[50] When the statutory language states that no court may stay an alien’s removal, the court should construe this provision to include the alien’s voluntary departure period, as Congress intended the ability to grant or deny this period as part of the removal process.[51]

Further, because Congress entitled the entirety of Section 1229c “Voluntary Departure,” an interpretation should not limit the analysis of the legislative framework for voluntary departure periods to Subsection 1229c(f), relating to judicial review. Instead, an interpretation of the IIRIRA’s statutory language must consider the interrelation of 1229c(f) with 1229c’s other subsections.[52] Specifically, Subsection 1229c(b)(2), which states that permission for an alien to depart voluntarily cannot exceed a period of sixty days.[53] Staying the voluntary departure period extends the amount of time granted to the alien by the BIA to depart voluntarily.[54] In fact, staying the period until the completion of appellate review would almost always extend voluntary departure time beyond the allotted sixty days.[55]

While some circuits have held that staying a voluntary departure period merely suspends the application of the relief granted to an alien by the BIA,[56] the plain language of the statute indicates that the voluntary departure period is not valid if the alien remains in the country for more than sixty days.[57] Because the statute indicates that an alien may not stay in the United States for more than sixty days after the BIA granted voluntary departure period begins, allowing a stay would violate the statute. Once the sixty day voluntary departure period passes, the court is no longer staying the voluntary departure period; rather it is staying the removal of the alien.[58] Thus, by looking at the totality of the relevant plain language of Section 1229c, it is clear that courts staying the voluntary departure periods directly counter the statutory language by awarding voluntary departure periods that are in effect longer than sixty days.[59]

Because Section 1252 is entitled “Judicial Review” and directs the courts as to what they may have jurisdiction over in regards to the decisions of the BIA, it is also necessary to read this section in conjunction with Section 1229c in order to determine whether Congress intended to allow courts to stay voluntary departure periods.[60] This section explicitly states that courts do not have jurisdiction over relief granted under Section 1229c.[61] However, as the First and Eighth Circuits note, Section 1252 also states that it is governed by Chapter 158 of Title 28, which indicates the appropriate rules for review of orders by federal agencies in general.[62] Specifically, these courts found that Section 2349 of Title 28, which states that an appellate court may “restrain or suspend” an order made by a Federal Agency pending the final hearing of a petition, enabled them to stay voluntary departure periods.[63] Further, other courts have concluded that because the decision to stay the voluntary departure period is not a decision on the merits of the case, such a decision is not prohibited by the IIRIRA.[64] Contrary to these conclusions, the Fourth Circuit has stated that Section 1252(a)(2)(B), which explicitly states that courts may not have jurisdiction over the BIA’s decisions regarding voluntary departure periods, precludes the judiciary from reviewing the BIA’s order, and that it is not appropriate to circumvent this statutory directive by examining other statutes.[65]

B. Legislative History

Because the explicit language of Section 1252 leads to two different results, it is appropriate to consider the IIRIRA’s legislative history.[66] Just as the court may not read a section of a statute apart from other relevant provisions, the court may not read a statute in isolation from its legislative history or the revision process that it came out of when evaluating statutory construction.[67] Congress passed the IIRIRA in order to expedite immigration proceedings by limiting the availability of judicial review.[68] In fact, the Supreme Court has explicitly stated that the goal of the IIRIRA is to protect the executive’s discretion from the usurpation of the judiciary.[69] Further, with the IIRIRA, Congress materially changed the process of removal and voluntary departure for an alien by requiring that the alien specifically ask for a stay of removal when appealing deportation decisions.[70] This implies that Congress wanted to remove deportable aliens as quickly as possible, and did not find it necessary that an alien remain in the country pending the completion of the alien’s appellate review of the BIA’s underlying deportation decision.[71] Therefore, when considering the congressional intent of the IIRIRA, and the changes it made to previous immigration statutes, it is apparent that Congress intended to limit the time aliens spent in the country while appealing the BIA’s decisions, as well as the role of the judiciary in removal proceedings.[72] By not allowing the courts to stay voluntary departure periods, Congress fulfilled its desire to quickly remove deportable aliens from the United States in a way that is least expensive to the government, since the government does not detain or pay the alien’s fare when using the voluntary departure option.[73]

Instead, the IIRIRA explicitly gives the authority to extend voluntary departure periods to specific members of the executive branch.[74] Because Congress stated a means for aliens to extend their voluntary departure periods through the executive, it is inappropriate to construe the statute as leaving this decision to the courts. Allowing both the executive and the judiciary to stay, and thereby extend voluntary departure periods, would directly conflict with Congress’ goals for the prompt, streamlined departure of aliens and for reduced deportation costs to the government.[75]

Thus, the legislative history points to the Fourth Circuit’s interpretation of Section 1252 as the more appropriate resolution of the statutory ambiguity.[76] This interpretation noted the wording of the statute, its headings and structure, as well as its legislative history in order to decide that the IIRIRA restricted the judiciary from staying voluntary departure periods.[77]

V. Removing Stays of Voluntary Departure Periods From Judicial

Review Is Unconstitutional

A. Due Process Protection Is Afforded to Aliens

The circuits that have found that the IIRIRA removed their ability to stay voluntary departure periods are following a judicial pattern that has long recognized Congress’ plenary power over immigration law.[78] However, the government cannot remove constitutionally granted rights without judicial review,[79] and Congress cannot exercise its power in a way that deprives any person of the rights allotted in the Fifth Amendment of the Constitution, without due process of law.[80] Thus, to ensure that the United States does not erroneously deport an alien, the judiciary must have the ability to stay voluntary departure periods, pending completion of judicial review, so that the alien has a meaningful review of her case.[81]

While one could argue that deportation does not implicate the Due Process clause of the Constitution because it is merely a removal from the country and not a deprivation, there have been several instances where the Supreme Court has regarded deportation as a constitutional deprivation.[82] In fact, in 1982 the Supreme Court explicitly adopted the Mathews v. Eldridge test into the immigration context, which determines what procedural steps are necessary to guarantee that an individual receives her appropriate due process rights.[83] Further, in Zadvydas v. Davis, an immigration case decided in 2001, the Court specifically stated that the Due Process Clause of the Constitution applies to all persons within the United States, including aliens.[84] Hence, it is necessary that the judiciary have the ability to review the decisions of the EOIR in order to ensure that the United States does not unconstitutionally deprive an alien of her constitutional rights.[85]

B. Voluntary Departure Is Necessary to Fulfill Due Process

Aliens granted voluntary departure periods may not receive the full extent of their constitutionally mandated due process rights if courts cannot not stay such periods.[86] This becomes clear with an application of the Mathews v. Eldridge test.[87] Taking into account the first prong of the test, the individual interest at stake, it is apparent that aliens who have voluntary departure periods have a strong interest in prolonging such periods.[88] This is because an alien who wants her case reviewed, but to whom the BIA granted a voluntary departure period, suffers more penalties if that period is not stayed and she overstays it, than an alien whom the BIA did not grant a voluntary departure period at all; consequently, the overstayed alien will have to leave the country, as if deported, while also losing a bond and incurring monetary fines.[89] Further, because the appellate process will almost always take longer than the sixty day statutorily allotted voluntary departure period, the alien must balance the considerable penalties that would occur if she overstays this period against the hardship of attempting to pursue an appeal from abroad when seeking a review of her case.[90] Therefore, the individual interests at stake for an alien granted a period of voluntary departure are very strong. They involve the alien’s interest in life and liberty, and go beyond the interests of those not granted such periods due to the fact that they also involve harsh penalties or the choice of not obtaining a meaningful review.

The second prong of the test—the risk of erroneously depriving an individual of constitutionally granted rights and the safeguards against such deprivation—is currently a hazard which is not yet effectively curtailed.[91] As noted in Pasha v. Gonzales, the BIA and the immigration court continuously make immigration decisions based on inadequate information.[92] Should an alien granted a voluntary departure period wish to appeal these decisions and avoid the penalties of overstaying a voluntary departure period, she must leave the United States and pursue the review of the deportation decision from abroad. Yet pursuing an appeal from abroad makes it difficult to guarantee any type of meaningful review.[93] Pursuing an appeal is much more difficult from abroad, and even if the alien is meritorious, she may not have the means to return to the United States at the completion of a successful appeal.[94] The Supreme Court has stated that due process requires the review at a meaningful time to be constitutional.[95] Affording an alien a review of her case after she has left the country does not provide the alien with a meaningful review mandated by the Constitution because it deprives the alien’s right to review before the judiciary has even made a decision on whether the deprivation is warranted.[96] As noted by Justice Marshall, removing from an individual the meaningful opportunity to defend herself creates an impermissible risk of erroneous deprivation.[97] While one could view the allowance of an appeal from abroad as a safeguard against erroneous deportation, the fact that the alien has already left the country when the appeal is heard shows that it is not an effective safeguard.[98]

The governmental interest in not allowing courts to stay voluntary departure periods, which relates to the third prong of the Mathews v. Eldridge test, is due to government’s interest in a speedy and streamlined removal process.[99] However, the government also has an interest in assuring that the Constitution is upheld, that every person gets the judicial review constitutionally guaranteed, and that the United States does not erroneously deport aliens.[100] The interests of the alien in the removal proceeding outweighs Congress’ intent in enacting the IIRIRA and, given the United States system of balancing powers among the three branches of government, the judiciary should have the power to stay voluntary departure periods in order to review the decisions of the executive branch.[101]

Even though the IIRIRA allows aliens to pursue their appeals from abroad, seeking review from outside the United States is very difficult.[102] In order to avoid an erroneous deprivation of constitutionally protected rights, courts need the ability to stay voluntary departure periods and to provide aliens granted such periods meaningful reviews of their cases.[103]

VI. Interpreting the IIRIRA Through the Use of the

Constitutional Avoidance Canon

A plain language reading of the IIRIRA that takes into consideration its legislative intent, indicating that this Act removed the courts’ jurisdiction to stay voluntary departure periods, is not an appropriate reading of the statute because it conflicts with an alien’s constitutional right to due process.[104] When a statute conflicts with constitutional rights, and there is an alternative interpretation of the statute that does not raise such problems, courts must construe the statute so that it avoids these constitutional issues.[105]

The Supreme Court broached this issue in the immigration context in INS v. St. Cyr.[106] In that case, the Court considered whether it had jurisdiction over another form of relief, habeas corpus.[107] Just as the executive branch argues that the IIRIRA removed the courts’ abilities to stay voluntary departure periods, in St. Cyr the attorney general argued that various sections of the AEDPA and the IIRIRA removed judicial review of habeas corpus applications from the courts.[108]

In St. Cyr, the Court noted that the importance of the writ of habeas corpus is that it has historically been a means to review the legality of an executive detention.[109] Unlawful detention is a deprivation of life and liberty, as is the deportation at issue in relation to stays of voluntary departure periods.[110] Both executive detention and executive deportation, therefore, need a meaningful review to protect from erroneous deprivation.[111]

The Supreme Court in St. Cyr also found that because Congress stretched its plenary power to its outer limits by removing judicial review of the habeas application, the IIRIRA must have clearly indicated that Congress intended this result in order for it to interpret the statute as having removed such review.[112] The Court held that the IIRIRA did not remove its jurisdiction over habeas corpus because the statutory ambiguity meant that Congress did not state its intent clearly enough, thereby allowing the judiciary to chose an interpretation of the statute which would not create constitutional problems.[113] Similarly, statutory ambiguity exists in Section 1252 of the IIRIRA over judicial review and whether courts can stay voluntary departure periods.[114] In St. Cyr, the Court held that because there was no clear and unambiguous statement of intent to remove jurisdiction, and because a construction which removed judicial review of habeas corpus applications for immigrants would raise serious constitutional questions, the AEDPA and the IIRIRA did not repeal such jurisdiction.[115]

Using this reasoning, courts should not have to limit their jurisdiction over stays of voluntary departure periods because there is ambiguity in the meaning of Section 1252 and reading the statute to allow courts to grant stays of voluntary departure periods is one plausible interpretation which avoids unconstitutionally limiting an alien’s due process rights.[116] As noted previously, if courts construe the IIRIRA as having removed stays of voluntary departure periods from aliens wishing to appeal their cases, this will create constitutional problems because the court will not afford these aliens the guaranteed meaningful review that the Fifth Amendment grants to all people within the United States.[117] Instead, to avoid unconstitutionality, the courts must interpret the IIRIRA as not removing the ability to stay voluntary departure periods from judicial review, just as the Supreme Court found that the IIRIRA did not remove habeas corpus from judicial review.[118]

VII. The First and Eighth Circuits’ Use of the Administrative Orders Review Act to Avoid Unconstitutionality

The legislative history of the IIRIRA suggests that courts should resolve the ambiguity in Section 1252 in a way that removes jurisdiction from the courts to stay voluntary departure periods. Not allowing the judiciary to stay voluntary departure periods until the completion of an alien’s appeal does not foster the meaningful review constitutionally granted to the alien, yet as the First and Eighth Circuits point out, there is an equally plausible means of resolving the ambiguity which would not create constitutional problems.[119] As the First Circuit noted, Section 1252 is subject to the Administrative Orders Review Act, which explicitly states that an appellate court may restrain or suspend an order made by an agency pending the judicial review.[120] Similarly, the Eighth Circuit stated that by including the Administrative Orders Review Act as a governing statute in Section 1252, the IIRIRA points strongly toward the notion that courts may stay voluntary departure periods pending judicial review.[121] Because courts should guard against interpreting a statute in a way that creates constitutional problems, courts should hold the First and Eighth Circuits’ construction of the IIRIRA regarding stays of voluntary departure periods as the correct interpretation of the statute.

VIII. Conclusion

An IJ may grant a voluntary departure period to an alien during the deportation process, allowing her to avoid the penalties that accompany forced deportation, yet if she does not depart voluntarily during the granted period, she will incur penalties. The circuit courts are split over whether they may stay these voluntary departure periods. According to the plain language of IIRIRA Subsection 1229c(f), a court may review cases concerning voluntary departure periods after the BIA has granted such a period and the court may stay the removal of the alien. Furthermore, under Subsection 1229c(b)(2), permission for an alien to depart voluntarily cannot exceed a period of sixty days. These sections, together with Section 1252, express a legislative intent to forbid courts from staying voluntary departure periods.[122]

However, Section 1252 is governed by Title 28, which indicates that appellate courts may suspend agency or state orders pending a final review.[123] Because Section 1252 leads to two different results, it is appropriate to consider the legislative history of the IIRIRA, which shows that Congress intended to limit the role of the judiciary in removal proceedings. Allowing the judiciary to stay an alien’s voluntary departure period would conflict with Congress’ goal in creating the IIRIRA.

However, the Supreme Court has regarded deportation as a constitutionally protected deprivation.[124] Thus, the judiciary must have the ability to stay voluntary departure periods, pending completion of judicial review, so that the United States does not erroneously deport an alien, and the alien has a meaningful review.[125]

Courts need not limit their jurisdiction over stays of voluntary departure periods because the ambiguity in Sections 1252’s meaning leads to an equally plausible interpretation of the statute which would not create constitutional problems.[126] Therefore, reading the IIRIRA in view of Title 28 allows courts to grant stays of voluntary departure periods and is a plausible interpretation which would avoid unconstitutionally limiting the alien’s due process rights.[127]

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*. JD/Licenciatura en Derecho candidate, 2008; American University Washington College of Law/Universidad Alfonso X El Sabio. I would like to thank Professor Jamin Raskin for his encouragement as well as Sarah Norris, Katherine Atkinson, and Brianne Whelan for their invaluable editing assistance. I would also like to thank June, Jack, and Timothy Lucas for their support.

[1]. See 8 U.S.C. § 1229c(a)(1) (2000) (giving the authority to grant an alien a period of voluntary departure to leave in lieu of deportation or before deportation proceedings have completed); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004) (noting that negative aspects of forced deportation include extended detention while the government prepares the alien’s travel documents and an ineligibility for readmission into the United States for five or ten years).

[2]. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 8 U.S.C. and 28 U.S.C.) (stating its purposes as being deterrence of terrorism, provision of justice for victims, and provision for an effective death penalty); Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 Conn. L. Rev. 1411, 1412 (1997) (elaborating that this legislation also eliminated a waiver of deportability for long-term, lawful residents that the government had previously granted frequently).

[3]. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) (amending 8 U.S.C. § 1101) (divesting courts of jurisdiction over claims of aliens arising from deportation proceedings and broadening the definition of aggravated felony, for which the government can deport an alien, to include most crimes involving theft, violence, and drugs); James M. Czapla, Note, Removal of Judicial Review Under the Illegal Immigration Reform and Immigrant Responsibility Act: The Different Interpretations of 8 U.S.C. § 1252(B)(3)(b), 38 Suffolk U. L. Rev. 603, 610-11 (2005) (explaining that shop-lifting is a crime of moral turpitude under the IIRIRA and, therefore, is considered an aggravated felony); David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47, 63 (2001) (noting that by 1996 the definition of aggravated felony, which originally consisted of three categories of offenses, had expanded to twenty-one subparagraphs).

[4]. See 6 U.S.C. § 521(a) (2000) (stating that the EOIR is subject to the attorney general’s regulations and directing the reader to 8 U.S.C. § 1103(g) (stating further that the attorney general establishes regulations, reviews administrative determinations in immigration proceedings, delegates authority, and performs whatever acts as the attorney general feels are necessary)).

[5]. See 8 U.S.C. § 1101(b)(4) (2000) (declaring that the IJ is an administrative judge, qualified to conduct such hearings within the EOIR, and is appointed and supervised by the attorney general).

[6]. See 8 C.F.R. § 1240.1 (2006).

[7]. See 8 C.F.R. § 236.1(d)(3) (2006) (stating that aliens may file appeals of the IJ’s decision to the BIA within ten days).

[8]. See 8 U.S.C. § 1229c(a) (1) (2000) (stating that the attorney general may allow an alien to depart voluntarily at the alien’s own expense instead of being subject to removal proceedings or before the completion of such proceedings).

[9]. See 8 U.S.C. § 1182(a)(9)(A) (2000) (explaining that penalties for forced departure include extended detention and ineligibility for readmission to the United States for a period of five or ten years).

[10]. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004) (elaborating that if the alien is appealing on the grounds of asylum, voluntary departure puts the alien at the risk of facing the same persecution which is at the heart of the proceeding itself).

[11]. See 8 U.S.C. § 1229c(b)(3) (2000) (stating that an alien permitted to depart voluntarily is required to post a voluntary departure bond which is given back upon proof that the alien left within such period, and if the alien fails to do so, she loses the bond); see also 8 U.S.C. § 1229c(d) (2000) (stating that an alien who fails to voluntarily depart is also subject to a penalty of between $1,000 and $5,000 and is ineligible for any further relief, such as re-entry into the United States, for ten years).

[12]. See 8 U.S.C. § 1105a (a)(3) (1994), repealed by Pub. L. No. 104-208, 110 Stat. 3009 (1996) (giving automatic stays of removal to aliens appealing the BIA’s decision).

[13]. See 8 U.S.C. § 1252(b)(3)(B) (2000) (stating that petition for appeal does not stay alien’s removal).

[14]. See 8 C.F.R. § 1240.26(f) (2006) (stating that authority to extend the voluntary departure period is only within the jurisdiction of the district director of the EOIR, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs).

[15]. Compare Lopez-Chavez, 383 F.3d at 653 (examining the interpretation of the IIRIRA regarding stays of voluntary departure in various circuits and concluding that the stay is necessary for a meaningful review), with Ngarurih v. Ashcroft, 371 F.3d 182, 192 (4th Cir. 2004) (noting that the IIRIRA does not cut off an alien’s ability to appeal from abroad so a stay is not necessary for appellate review).

[16]. Lopez-Chavez, 383 F.3d at 652-54 (clarifying that by moving to stay a voluntary departure period, aliens merely seek the ability to retain the benefits associated with such periods once their appeals have finished and asserting that nothing in the IIRIRA divests the court of the power to stay a voluntary departure period if the alien files for the stay within the granted period).

[17]. Bocova v. Gonzales, 412 F.3d 257, 268 (1st Cir. 2005) (stressing that the alien must make a timely motion to stay the departure period and ask for it explicitly).

[18]. Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004) (reasoning that a voluntary departure period is beneficial to both the government and the alien, therefore construing the IIRIRA as not allowing for a stay of the voluntary departure period would not be beneficial to either).

[19]. Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003) (stating that an alien granted a voluntary departure period who wishes to appeal her case is in a worse position than an alien denied a voluntary departure period at all if that period is not stayed).

[20]. Macotaj v. Gonzales, 412 F.3d 704, 705 (6th Cir. 2005) (indicating that the petitioner asked for the motion to stay the departure period as ancillary to his motion to stay the removal, and therefore even though the petitioner made his motion to stay the voluntary departure period after the period had expired, the court held that the petitioner’s motion to stay removal, which was timely, inherently included a motion to stay voluntary departure). But see Mullai v. Ashcroft, 385 F.3d 635, 640 (6th Cir. 2004) (declaring that the court lacks the jurisdiction to stay a voluntary departure period when the alien makes neither a motion to stay the removal nor a motion to stay the voluntary departure period within the departure period, as doing so would constitute a new grant of relief—a function assigned to the attorney general and his delegates).

[21]. Desta v. Ashcroft, 365 F.3d 741, 743 (9th Cir. 2004) (stating that the petitioner made a motion to stay removal five days into his voluntary departure period and rationalizing that this motion to stay removal within the voluntary departure period inherently included a motion to stay the voluntary departure period).

[22]. Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 277 (3d Cir. 2004) (noting that the petitioner asked for a reinstatement of an already expired voluntary departure period which the court refused to extend due to the plain language of the IIRIRA which grants jurisdiction over extension of voluntary departure periods to the attorney general). The Third Circuit noted that although the alien made a motion to stay the voluntary departure period before such period had expired, the period did in fact expire by the time appellate review commenced, and held that an extension of the alien’s voluntary departure period was not within the jurisdiction of the court according to the IIRIRA. Id. at 279-80.

[23]. See id. at 280-81 (discussing the limits that the IIRIRA put upon the role of courts in immigration proceedings and stating that courts cannot have jurisdiction over appeals of denials of requests for voluntary departure periods, nor the ability to stay an alien’s removal pending any claim relating to voluntary departure, nor the ability to review any judgment with regards to the granting of relief).

[24]. Ngarurih v. Ashcroft, 371 F.3d 182, 192 (4th Cir. 2004) (stating that under the IIRIRA the government cannot manipulate voluntary departure orders to deprive an alien of judicial review and that, therefore, a stay is not necessary to protect the alien’s rights).

[25]. See id. at 194 (indicating that 8 U.S.C. § 1252(a)(2)(B) precludes judicial review of the BIA’s order of a voluntary departure period). The court also notes that it may only stay an alien’s removal should the alien show by clear and convincing evidence that the removal is prohibited by law. Id. at 195 n.13.

[26]. 8 U.S.C. § 1229c (2000) (giving qualifying aliens an alternative to forced removal).

[27]. 8 U.S.C. § 1252 (2000) (expressly denying jurisdiction for courts over decisions made by the BIA regarding voluntary departure periods).

[28]. See, e.g., Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (stating that the court must start with the actual words which Congress used in determining the intent of the Statute, which are conclusive absent any clearly expressed legislative intent to the contrary).

[29]. See, e.g., Thompson v. Thompson, 484 U.S. 174, 183 (1988) (noting the instructive nature of the structure and headings of a statute when determining the legislative intent of an act).

[30]. See, e.g., Muniz v. Hoffman, 422 U.S. 454, 461 (1975) (using legislative history to determine a statute’s meaning and noting that the court should not isolate legislative history from the statute).

[31]. See Chae Chan Ping v. United States, 130 U.S. 581, 606-07 (1889) (acknowledging that Congress has never denied, and repeatedly asserts, its power to exclude foreigners).

[32]. See U.S. Const. amend. XIV, § 1 (declaring that no state may deprive a citizen of life, liberty, or property without due process); see also Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (finding that the government could not deport an illegal alien without due process, because deportation is an issue that involves the deprivation of a person’s liberty).

[33]. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (explaining that once an alien enters the United States the Due Process Clause of the Fifth Amendment applies regardless of whether the alien’s presence here is lawful, unlawful, temporary, or permanent because the Fifth Amendment applies to all persons, including aliens); Fong Yue Tin v. United States 149 U.S. 698, 724 (1893) (observing that while aliens are subject to Congress’ power to deport them, they are still afforded constitutional rights). See also Marbury v. Madison 5 U.S. 137, 166-67 (1803) (stating that whether the government can remove a right which the Constitution vested in a person is a question for the judiciary).

[34]. For a discussion of the Matthews v. Eldridge test, see infra notes 86-103.

[35]. See Landon v. Plasencia, 459 U.S. 21, 34 (1982) (indicating that deportation would be a constitutional deprivation and using the three step Mathews v. Eldridge test to determine the procedural due process steps needed in the immigration context); Zavala v. Ridge, 310 F. Supp. 2d 1071, 1077 (N.D. Cal. 2004) (noting that the government must afford the alien’s review at a meaningful time in order to be fair).

[36]. See 8 U.S.C. 1105a(a)(3) (1994), repealed by Pub. L. No. 104-208, 110 Stat. 3009 (1996) (issuing stays of an alien’s removal automatically should the alien wish to pursue appellate review of the underlying deportation decision).

[37]. See Rife v. Ashcroft, 374 F.3d 606, 615 (8th Cir. 2004) (recognizing that while the IIRIRA made appealing from abroad technically possible, it did not remove the difficulties of doing so).

[38]. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004) (calling the penalties which face aliens who overstay their voluntary departure periods “serious detriments” and implying that the choice between these penalties and pursuing an appeal is an unfair choice to force on aliens).

[39]. See Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 550 (1985) (Marshall, J., concurring in part) (stating that not affording an individual a meaningful review before removing a constitutionally granted right creates an unpardonable risk of erroneous deprivation).

[40]. See Clark v. Martinez, ­543 U.S. ­­371, 381-82 (2005) (discussing the canon of constitutional avoidance as a means to remain within the limits of the Constitution while construing a statute when there two or more possible constructions, one which would lead to an unconstitutional outcome).

[41]. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 697 (2001) (finding that although the Court could read the IIRIRA literally to authorize indefinite detention of a resident alien deemed removable due to criminal activity, doing so would be against the Fifth Amendment of the Constitution and, therefore, the Court must read the provision as not providing unlimited discretion to detain such aliens); Clark, 543 U.S. at 384-85 (using the canon of constitutional avoidance, as applied in Zadvydas, to find that indefinite detention is not applicable to inadmissible aliens who were never admitted into the United States because it would be unconstitutional to find that the same statute provided a harsher penalty for one group of aliens than another).

[42]. See INS v. St. Cyr, 533 U.S. 289, 300 n.12 (2001) (recognizing that Congress must uphold the Constitution in the same way that the Court does, therefore the only reasonable construction of a statute is one that does not violate the Constitution).

[43]. See Zadvydas, 533 U.S. at 699 (holding that a literal reading of the IIRIRA would result in unconstitutional consequences for resident aliens and therefore using the avoidance canon to guard against such results); Clark, 543 U.S. at 380-81 (stating that when the court considers the necessary consequences of its choice between statutory constructions, it must consider all constitutional problems that could arise, whether or not they apply to the particular person before the court).

[44]. See Rife v. Ashcroft, 374 F.3d 606, 614-15 (8th Cir. 2004) (stating that the IIRIRA abolished the courts’ ability to grant or deny voluntary departure periods, gave this ability to the Executive branch, and only explicitly gave the courts the ability to stay an order of removal).

[45]. See, e.g., Bocova v. Gonzales, 412 F.3d 257, 267 (1st Cir. 2005) (noting that there is a difference between the ability to grant a stay of a voluntary departure period and the ability to grant a voluntary departure period itself, and that if Congress had wanted to remove stays of voluntary departure periods from the courts’ jurisdiction, it would have done so explicitly); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (noting that the Court must consider the statutory language as conclusive without a clearly expressed legislative intent to the contrary).

[46]. See 8 U.S.C. § 1229c (2000) (including regulations regarding the period of the voluntary departure periods, such as eligibility to obtain such a period, waiver by the attorney general which allows the alien to stay beyond the expiration of the period, bonds given by the alien to obtain a voluntary departure period, penalties for not departing during the period, and judicial review of the grant or denial of such periods); 8 U.S.C. § 1252 (2000) (discussing the immigration matters that are not subject to judicial review and the requirements for judicial review, such as the appropriate deadlines, venue, procedure for service of process, and standard of review); Desta v. Ashcroft, 365 F.3d 741, 746 (9th Cir. 2004) (recognizing that the court’s decision that it has jurisdiction to stay voluntary departure periods rests on the fact that the court narrowly construed the sections of the IIRIRA which limit judicial review); Chelsea Walsh, Voluntary Departure: Stopping the Clock for Judicial Review, 73 Fordham L. Rev. 2857, 2890 (2005) (indicating that the courts that have held that they have the equitable power to grant stays of voluntary departure periods view the substantive issues of the case as distinct from the question of whether a federal court can stay the departure period once the BIA has chosen to grant such relief).

[47]. See, e.g., Thompson v. Thompson, 484 U.S. 174, 183 (1988) (considering the language and placement of a statute, as well as the heading of the statute, in interpreting the Parental Kidnapping Prevention Act, in order to decipher its legislative intent).

[48]. 8 U.S.C. § 1229c.

[49]. See id.

[50]. See id. (noting that this section allows the alien to leave at her own expense, in lieu of being subject to removal proceedings under 8 U.S.C. § 1229a).

[51]. See 8 U.S.C. §§ 1221-31 (2000) (covering all immigration matters including issues such as detention of aliens for physical and mental examination, inspection by immigration officers, expedited removal of inadmissible arriving aliens, apprehension and detention of aliens, deportable aliens, cancellation of removal, as well as voluntary departure periods).

[52]. See Thompson, 484 U.S. at 183 (stating that one can infer Congress’ intent from the structure of the statute, which implies that one must take into account the interrelation of subsections); Czapla, supra note 3, at 613-15 (suggesting that courts look to the interrelation of subsections when interpreting statutory intent and referring to the Eleventh Circuit and the First Circuit, which took into consideration the standard of review explicitly stated in the section regarding enjoining of removal, 8 U.S.C. § 1252(f)(2) of the IIRIRA, in order to determine the standard of review for 8 U.S.C. § 1252(b)(3)(B), which governs stays of removal).

[53]. 8 U.S.C. § 1229c(b)(2) (2000). A voluntary departure period is not valid if it exceeds sixty days, unless the BIA granted the period between October of 2000 and September of 2003, during which time the period could extend to 120 days. See 8 U.S.C. § 1229c(a)(2) (2000).

[54]. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280 (3d Cir. 2004) (discussing the alien’s request to stay a voluntary departure period as a request for an extension of that period and finding that the courts are unable to extend the relief granted to an alien by the BIA).

[55]. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 652 (7th Cir. 2004) (noting that an unstayed voluntary departure period almost always expires before the court reaches a decision and that, therefore, granting a stay of the voluntary departure period is necessary to enable the alien to voluntarily depart should there be an unfavorable final decision on her case).

[56]. See, e.g., Desta v. Ashcroft, 365 F.3d 741, 747 (9th Cir. 2004) (stating that if the court grants a stay, the total number of days for voluntary departure awarded by the BIA remains the same, so that while the court stops the voluntary departure clock from running until issuance of the decision, it does not add more time to that clock).

[57]. See Ngarurih v. Ashcroft, 371 F.3d 182, 193 (4th Cir. 2004) (noting that a voluntary departure cannot exceed sixty days and to extend such a period would thwart the intent of Congress, which was to expedite the removal process, in creating the IIRIRA and infringe upon the Executive branch’s authority to determine the deadline for voluntary departure).

[58]. See Reynoso-Lopez, 369 F.3d at 284 (stating that if one could extend a voluntary departure period until after the completion of an appeal, this would go against the goals that underlie the reason for having voluntary departure periods, which is an expedious removal proceeding, by discouraging prompt departure and encouraging frivolous appeals); Ngarurih, 371 F.3d at 194 (reasoning that the penalties that attach when an alien overstays her voluntary departure period indicate the importance of the section 1229c sixty day allotment because they show that Congress only allowed voluntary departure periods as a means of ensuring the quick departure of the alien, implying that Congress did not intend that courts should stay such periods).

[59]. See Ngarurih, 371 F.3d at 195 (stating that courts cannot disregard statutory requirements and provisions for voluntary departure periods).

[60]. See Rife v. Ashcroft, 374 F.3d 606, 615 (8th Cir. 2004) (discussing section 1229c, the section on voluntary departure periods, as it relates to section 1252, which governs judicial review, to conclude that the IIRIRA eliminated the practical need for automatic stays of voluntary departure periods by not cutting off an alien’s ability to appeal if she is outside the United States).

[61]. See 8 U.S.C. § 1252(a)(2)(B) (2000).

[62]. See Bocova v. Gonzales, 412 F.3d 257, 266-67 (1st Cir. 2005) (noting that the court can suspend an agency decision, in whole or in part, pending a final hearing of a petition according to 28 U.S.C. § 2349(b), which is referenced in section 1252); Rife, 374 F.3d at 615-16 (noting that while the IIRIRA restricted the court’s power to grant voluntary departure periods, it strongly implies that the court has the ability to stay these periods through its reference of 28 U.S.C. § 2349(b), which allows courts to suspend agency decisions generally).

[63]. See 28 U.S.C. § 2349(b) (2000) (stating that the court of appeals may order a stay of an agencies’ determination in cases where irreparable damage would otherwise result).

[64]. See Rife, 374 F.3d at 615 (finding that courts may stay voluntary departure periods because, while Congress limited the power of the judiciary to grant stays, it did not expressly preclude the courts from staying part of the BIA’s order giving an alien a voluntary departure period).

[65]. See Ngarurih v. Ashcroft, 371 F.3d 182, 193-94 (4th Cir. 2004) (reasoning that because the court lacks jurisdiction over the BIA’s order, there is no issue before the court to stay, and concluding that the IIRIRA completely prevents the courts from considering voluntary departure periods in the first place).

[66]. See, e.g., United States v. Turkette, 452 U.S. 576, 580 (1981) (stating that if the language is unambiguous, it must ordinarily be regarded as conclusive unless there is a clear legislative intent to the contrary).

[67]. See Muniz v. Hoffman, 422 U.S. 454, 458-61 (1975) (construing sections of the Labor Management Act to find that the legislative history showed that Congress did not intend for the petitioners to have a jury trial where the statute provided a trial by jury “in any case” stemming from a labor dispute).

[68]. See Benson, supra note 2, at 1412 (noting that the IIRIRA contains numerous statutory provisions designed by congress to expedite, curtail, or eliminate judicial review).

[69]. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999). In that case, the aliens alleged that they were targeted by the government for deportation because of their ties to a politically unpopular group. Id. at 472. The Court held that the IIRIRA meant that no court could hear any case by or on behalf of an alien arising from a decision by the attorney general, and that this, therefore, deprived the court of jurisdiction. Id. at 486-87.

[70]. Compare 8 U.S.C. § 1105a(a)(3) (1994), repealed by Pub. L. No. 104-208, 110 Stat. 3009 (1996) (governing stays before the IIRIRA and giving aliens petitioning for judicial review of an immigration decision automatic stays of removal), with 8 C.F.R. § 241.6(a) (2006) (explaining that any request for a stay of removal must be filed by the alien) (emphasis added).

[71]. Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005) (acknowledging that sections 1229c and 1252(a)(2)(B) of the IIRIRA stripped courts of the jurisdiction to review the BIA’s decisions granting, denying, or determining the length of voluntary departure periods, which implies that a stay is now at the discretion of the executive).

[72]. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 281 (3d Cir. 2004) (stating that the plain language of the IIRIRA gives the authority to extend voluntary departure only to the attorney general and his delegates, that it is unambiguously under the authority of the executive branch, and that the court is bound by the BIA’s interpretation of the IIRIRA in the case of ambiguities).

[73]. 8 U.S.C. § 1229c(a)(1) (2000).

[74]. See 8 C.F.R. § 1240.26(f) (2000) (granting authority to extend voluntary departure periods to the district director of the INS, Deputy Executive Associate Commission for Detention and Removal, or the Director of the Office of Juvenile Affairs).

[75]. See Reynoso-Lopez, 369 F.3d at 284 (indicating that clear procedures for extending voluntary departure periods are set out in the IIRIRA and reflect Congress’ effort to expedite removal proceedings, and that leaving the issue solely to the Executive through the EOIR allows for a quick determination of whether a stay of the voluntary departure period is necessary). But see Bocova, 412 F.3d at 267-68 (declaring that limiting judicial review leads to odd results because the alien would have to overstay the voluntary departure period and receive an actual removal order issued against her before the court would have jurisdiction to review her case).

[76]. See Ngarurih v. Ashcroft, 371 F.3d 182, 195 (4th Cir. 2004) (stating that Congress gave broad authority to the attorney general to adjudicate immigration cases and expressly protected the Executive branch’s decision by restricting judicial review in such matters).

[77]. See id. at 192-94 (concluding that section 1252 does not cut off appellate jurisdiction once the alien leaves the United States so the alien can continue her appeal from abroad, and therefore the conclusion that section 1252 precludes judicial review of the BIA’s order of voluntary departure is consistent with Congress’ desire for quick departure of the alien). But see Bocova, 412 F.3d at 267 (arguing that a Court must construe statutory ambiguities in the immigration context in the alien’s favor).

[78]. See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 603-07 (1889) (stating that the Constitution gave certain powers to the Legislative branch of government that neither the Executive or Legislative branches have ever denied, including the power to admit subjects of other nations, and to determine how the government should act toward foreigners).

[79]. See, e.g., Marbury v. Madison, 5 U.S. 137, 166-67 (1803) (noting that the law protects the rights which an individual acquires through the Constitution and that whether the Constitution actually vested these rights, and whether the government can take them away, is a question which the judiciary must try).

[80]. See U.S. Const. amend. V (stating that the government cannot deprive any person (as opposed to citizen) of life, liberty, or property without due process of law).

[81]. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004) (noting that aliens granted voluntary departure periods have the difficult decision of either departing voluntarily in order to maintain the benefits which accompany such periods and avoid the consequences of overstaying the period, or leaving the country in order to pursue relief from abroad—which is difficult and, in the case of asylum, at the expense of persecution).

[82]. See Landon v. Plasencia, 459 U.S. 21, 34 (1982) (describing an alien’s interest in living, working, and joining a family in the United States as “weighty,” thus indicating that a barrier to these interests would be a deprivation); Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922) (finding that the defendants were entitled to judicial review of their immigration proceedings because the Fifth Amendment gives protection from unwarranted deprivation of life, liberty or property through the guarantee of due process of law and that deportation may result in the divestment of all three); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (holding that when administrative officers execute a statute that involves the liberty of a person, the officers cannot disregard the fundamental principle of due process).

[83]. Landon, 459 U.S. at 34-35 (stating that in order to determine the due process requirements in the immigration context, the courts must evaluate the particular circumstances via the Mathews v. Eldridge test).

[84]. Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (stating that when an alien enters the United States, the alien’s constitutional status changes accordingly because the Due Process Clause applies to all persons in the country, including aliens).

[85]. Cf. INS v. St. Cyr, 533 U.S. 289, 314 (2001) (finding it necessary for the court to have jurisdiction over an alien’s writ of habeas corpus in immigration proceedings because if the court did not have such jurisdiction, it would raise serious constitutional questions).

[86]. See Zavala v. Ridge, 310 F. Supp. 2d 1071, 1077 (N.D. Cal. 2004) (discussing procedural due process in the immigration context and noting that the United States Constitution entitles aliens to review implemented at a meaningful time and in a meaningful manner).

[87]. Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976) (stating that in evaluating the procedural steps used to give an individual her due process rights the court must consider: 1) the individual interest at stake; 2) the risk that the procedures used could erroneously deprive this interest and the safeguards against such deprivation; and 3) the governmental interest in using the current procedures as opposed to some additional or other procedures).

[88]. Compare Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) (describing deportation as a deprivation of “all that makes life worth living”), with Mathews, 424 U.S. at 341 (stating that the degree of the potential deprivation at issue is a factor to consider in determining the validity of an administrative procedure).

[89]. See 8 U.S.C. § 1229c (2000) (indicating that an alien who overstays her voluntary departure period forfeits a bond, incurs additional monetary fines).

[90]. See Desta v. Ashcroft, 365 F.3d 741, 746 (9th Cir. 2004) (noting that if the court did not have the ability to stay a voluntary departure period, the alien would have to leave if she wanted to preserve the benefits of the voluntary departure period, such as not being forcibly removed, not being fined, and being allowed to re-enter the country at a later date, but in doing so she might risk not being able to return in spite of a potentially meritorious case due to monetary problems or persecution).

[91]. See Peter H. Schuck & Theordore Hsien Wang, Continuity and Change: Patterns of Immigration Litigation in the Courts, 1979-1990, 45 Stan. L. Rev. 115, 164 (1992) (stating that empirical studies indicate that political and foreign policy considerations affect agency decisions regarding immigration).

[92]. Pasha v. Gonzales, 433 F.3d 530, 531-32 (7th Cir. 2005) (stating that the IJ based her decision on whether the alien was indeed politically persecuted on an inconclusive and lacking assertion by the government’s expert that the alien’s evidentiary documents were forged).

[93]. See, e.g., Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003) (finding that the court has the ability to stay voluntary departure periods in order to allow the alien to receive appellate review, thereby implying that the respondent would not receive a meaningful review if petitioning from abroad).

[94]. See Desta, 365 F.3d at 746-47 (quoting Zazueta-Carillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2000) (Berzon, J., concurring)) (stating that the court must stay an alien’s voluntary departure period so that the alien is not faced with an unfair choice between a review or a penalty and assuring that the review is at a time that is meaningful to the alien within the deportation process).

[95]. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985) (stating that the Due Process Clause requires an appeal at a meaningful time, and if it is not held at such a time it is a constitutional violation).

[96]. Id. at 542 (noting that due process requires the review of the issue before the deprivation of life, liberty, or property).

[97]. Id. at 550 (Marshall, J., concurring in part) (stating that deprivation to a person where such deprivation is justified is unfortunate, but deprivation where it is not justified is unacceptable, and therefore not affording an opportunity for review before a deprivation is a substantial risk which is unpardonable given that due process ensures that any deprivation is justified).

[98]. See Walsh, supra note 46, at 2883 (stating that the passage of the IIRIRA has not significantly effected the analysis of the courts and thereby implying that the unfair choice that the alien granted a voluntary departure period must make, along with the difficulty of appealing from abroad, means that Congress did not effectively deal with the risk of erroneous deprivation by allowing aliens to pursue claims from abroad).

[99]. See U.S. Dep’t of Justice Rep. No. I-96-03 (1996) (stating that the INS should be more aggressive in removing nondetained aliens).

[100]. See Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970) (stating that the government has an interest in fostering the dignity and well-being of everyone within the United States borders).

[101]. See Czapla, supra note 3, at 619 (stating that the effects of deportation on an alien, as well as the quasi-criminal nature of the deportation proceedings should be taken into account in noting that the vital interests of aliens are more important than the purpose of the IIRIRA); see also Martin v. Hunter’s Lessee, 14 U.S. 304, 328-29 (1816) (stating that Article II of the Constitution, establishing the Judicial branch, is mandatory upon the legislature by saying that judicial power “shall be vested (not may be vested)” because the object of the Constitution was to create three branches of government, and to suppose that Congress did not have to give power to the judicial branch would defeat the Constitution itself) (emphasis in original).

[102]. See Desta v. Ashcroft, 365 F.3d 741, 746-47 (9th Cir. 2004) (quoting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2000) (Berzon, J., concurring)) (stating that requiring an alien to pursue her appeal from abroad may effectively moot the alien’s appeal, and that this could also void an asylum appeal because even if the alien was able to pursue the case and it was successful, she might not be able to return the United States).

[103]. Compare Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir. 2004) (finding that the court can stay a voluntary departure period when it is done to preserve a meaningful review), and Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003) (finding the court can stay the voluntary departure period so that the alien receives appellate review), with Bocova v. Gonzales, 412 F.3d 257, 269 (1st Cir. 2005) (stating that the IIRIRA stipulated sixty day period allowed for voluntary departure periods is not enough time to allow for judicial review).

[104]. See Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (stating that the canon of constitutional avoidance is applicable when there is more than one possible means of interpreting a statute, and is used so that when deciding the appropriate interpretation the interpreter chooses the statutory construction that does not overstep constitutional boundaries).

[105]. See INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (finding that in the immigration context, where the INS purported to have removed the alien’s ability to apply for a writ of habeas corpus through the IIRIRA, the Court must couple the plain language rule of statutory construction with the avoidance canon). Cf. Crowell v. Benson, 285 U.S. 22, 62 (1932) (finding that in applying a federal act which gave an agency exclusive authority to decide workers compensation, where not provided by state law, the Court should not construe the act as removing an individual’s right to a trial by jury because, even though the legislative history regarded this act’s purpose as furnishing a prompt, continuous, expert, and inexpensive method for dealing with workers compensation claims, Congress could not oust judicial power with regard to fundamental constitutional rights).

[106]. St. Cyr, 533 U.S. at 326 (finding that nothing in the IIRIRA unmistakably indicated that Congress intended to remove the respondent’s ability to have his case reviewed via a writ of habeas corpus and, therefore, holding that the court maintained jurisdiction to review such writs).

[107]. Compare id. at 298 (referring to a writ of habeas corpus as a form of discretionary relief), with Bocova, 412 F.3d at 264-65 (discussing voluntary departure periods as a form of discretionary relief for aliens subject to an order of deportation).

[108]. Compare St. Cyr, 533 U.S. at 298 (explaining the Executive branch interpretation of the IIRIRA and the AEDPA, which is that these statutes stripped jurisdiction from the courts regarding the respondent’s habeas corpus application), with Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 281 (3d Cir. 2004) (stating that the BIA’s interpretation of the IIRIRA indicated that the district director of the INA had the sole authority to extend voluntary departure periods).

[109]. St. Cyr, 533 U.S. at 301-02 (discussing the writ of habeas corpus as a protection against detention by Executive authorities without judicial review based on errors of law and erroneous application or interpretation of statutes).

[110]. Compare Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (discussing detention as a deprivation of personal liberty which is at the heart of what the Fifth Amendment Due Process Clause protects), with Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922) (stating that deportation may result in the deprivation of life and liberty for a resident alien or a citizen wrongly placed into deportation proceedings).

[111]. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43 (1985) (discussing the principle of due process as being the opportunity to be heard before the deprivation of life, liberty, or property in order to avoid the risk of an erroneous deprivation).

[112]. St. Cyr, 533 U.S. at 298-99 (stating that in construing a statute that purports to remove habeas corpus from judicial review, a clear indication that Congress intended that result must reinforce the plain language of the statute and that implication is not sufficient, even when based on statutory text or legislative history).

[113]. St. Cyr, 533 U.S. at 314 (concluding that the AEDPA and the IIRIRA did not repeal habeas jurisdiction because these statutes were not statements that were clearly unambiguous, and that without a clear statement indicating intent the Court would not construe a statute in a way that would raise constitutional questions).

[114]. See supra Part IV (discussing the statutory ambiguity in section 1252, the section on judicial review in the IIRIRA).

[115]. See supra Part V (arguing that the Fifth Amendment of the Constitution applies in the immigration setting because it is a deprivation of life and liberty and without stays of voluntary departure periods the review granted to the alien would not be meaningful nor comport with constitutional requirements, thus implying that the court needs to interpret the IIRIRA in a way that allows stays of such periods). But see St. Cyr, 533 U.S. at 326-27 (Scalia, J., dissenting) (contending that the Court found ambiguity in the utterly clear statutory language of the IIRIRA, and stating that the law deprives the Court jurisdiction to entertain this habeas corpus suit).

[116]. See St. Cyr, 533 U.S. at 298-99 (stating that in order for an assertion that the court does not have jurisdiction over an issue decided by an administrative action to prevail, this assertion must overcome the presumption in favor of judicial review, and it must be specifically articulated because the requirement of a clear statement assures that the legislature considered and intended the result); Salinas v. United States, 522 U.S. 52, 59-60 (1997) (holding that the petitioner’s invocation of the avoidance canon was not appropriate because the statute was unambiguous and finding that the statute at issue was constitutional as applied).

[117]. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653-54 (7th Cir. 2004) (finding that the court could stay voluntary departure periods in order to give the alien a meaningful review). By recognizing an alien’s right to meaningful review in Lopez-Chavez, the court seems to imply that unless the court interpreted the IIRIRA as allowing it to stay voluntary departure periods, it would not be allowing for the constitutionally granted due process requirement.

[118]. See Hooper v. California, 155 U.S. 648, 657 (1895) (stating that an elementary rule of statutory construction is that the Court must resort to any reasonable interpretation in order to maintain the constitutionality of a statute).

[119]. See supra Part IV (discussing the First and Eighth Circuits’ findings that since section 1252 states that it is subject to chapter 158 of Title 28, the court should utilize this language to stay voluntary departure periods).

[120]. See 8 U.S.C. § 1252(a)(1) (2000) (stating under the heading “General Orders of Removal,” that the section on judicial review is governed only by chapter 158 of Title 28 unless it conflicts with the deadline, the venue, or the service as delineated by section 1252); Bocova v. Gonzales, 412 F.3d 257, 266-67 (1st Cir. 2005) (regarding language in Chapter 158 of Title 28 as permission to stay voluntary departure periods).

[121]. See Rife v. Ashcroft, 374 F.3d 606, 615-16 (8th Cir. 2004) (negating the proposition that the IIRIRA removed the court’s jurisdiction to stay voluntary departure periods and pointing to the reference to Title 28 in section 1252 as a strong indicator that Congress actually intended that courts maintain the ability to stay voluntary departure periods).

[122]. See supra Part IV.A (showing that because section 1229c is entitled “Voluntary Departure,” a statutory interpretation should not be limited to merely the subsection on judicial review).

[123]. See supra Part IV.A (discussing the fact that the First and Eight Circuits used Title 28 as reasoning for their decisions that they had jurisdiction to stay voluntary departure periods).

[124]. See supra Part V.A (describing the Supreme Court’s adoption of the Mathews v. Eldridge test into the immigration context, in order to determine what steps are necessary to ensure an alien receives her constitutional due process rights).

[125]. See supra Part V.B. (showing how review of an alien’s case after she has left the country does not foster a meaningful review, because it is a deprivation of a constitutionally granted right at a time that is not meaningful due to the fact that at that point in the process, the judiciary has yet to decide whether the deprivation is warranted).

[126]. See supra Part VI (stating that when a statute conflicts with constitutional rights, and there is an alternative interpretation that would not conflict with constitutional rights, the court must use the constitutional avoidance canon and construe the statute to avoid the constitutional issues).

[127]. See supra Part VII (stating that the circuit split regarding stays of voluntary departure periods should be resolved through the construction of the IIRIRA that the First and Eighth Circuits used, by looking to Title 28 which allows courts to suspend decisions of federal agencies until the completion of judicial review).

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