Garcia v. Holder, No. 07-72516 (9th Cir. Dec. 30, 2009).

This court has jurisdiction pursuant to 8 U.S.C. § 1252 to review the BIA’s order dismissing the petitioner’s appeal from an IJ’s removal order and denying his application for voluntary departure. This court reviews de novo questions of law and claims of due process violations in immigration proceedings.

The BIA properly concluded that the peititoner is removable under 8 U.S.C. § 1227(a)(1)(A) because the record of conviction establishes that his 1995 conviction for violating California Health & Safety Code Section 11366.5 related to a federally defined controlled substance and he was therefore inadmissable at the time of his 1999 entry.

The petitioner’s contention that California Health & Safety Code Section 11366.5 lacks the requisite mens rea to qualify as a crime relating to a controlled substance is unavailing. To the extent the petitioner contends that he lacked the requisite mens rea for conviction, this court cannot collaterally reexamine his conviction in this instant case.

The petitioner’s statutory eligibility for voluntary departure was a question of law which the BIA is permitted by regulation to review de novo. Therefore, the petitioner’s contention that BIA’s sua sponte vacatur of the IJ’s grant of voluntary departure violated due process is unpersuasive.

The BIA erred in holding that the petitioner’s conviction under California Health & Safety Code Section 11366.5 was categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Not all the behavior prohibited by Section 11366.5 would constitute a violation of 21 U.S.C. § 856(a)-(b). First, 21 U.S.C. § 856(a)(1) requires that the owner personally intend to engage in prohibited drug manufacturing, distribution, or usage, while Section 11366.5 requires only that the owner knowingly permit others who have such intent to engage in drug-related activity on the property. Second, although 21 U.S.C. § 856(a)(2) and Section 11366.5 are similar, they differ in that the mens rea requirement for the former is “knowingly and intentionally” while the mens rea requirement for the latter is only “knowingly.” This court cannot read the explicit mens rea requirement of “intentionally” out of the statute. Under accepted canons of statutory interpretation, this court must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. Because the BIA did not reach any other basis for characterizing the petitioner’s conviction as an aggravated felony, this court remands for the BIA to reconsider the petitioner’s request for voluntary departure. The petition for review is therefore denied in part, granted in part, and the case is remanded.

Matter of Velasco Lopez, [Unpublished] (BIA 11/17/2009).

Where the Board had granted the respondent’s first motion to reopen and remanded the case for further proceedings, there was no final order until the Immigration Judge’s decision rendered as a result of the further proceedings. Therefore, a new motion filed subsequent to the Immigration Judge’s new decision on remand was the first motion filed after the final administrative order pursuant to 8 CFR Sec. 1003.2(c)(2).

Under Dada v. Mukasey, 128 S.Ct. 2307, 2319 (2008), the respondents have a unilateral right to withdraw their application for voluntary departure within the voluntary departure time granted, and the Board concludes that the respondents implicitly exercised their right to withdraw their voluntary departure request when they filed their timely motion to reopen.

Matter of Velasco, 25 I&N Dec. 143 (BIA 2009).

The Supplementary Information at 73 Fed. Reg.76,936 published with the final voluntary departure rule clearly states that its provisions are prospective only. Some confusion may arise, however, from the language stating that this rule will apply to all cases pending before EOIR, or adjudicated by EOIR, on the effective date of this rule and any cases that later come before it. Cases on appeal to the Board are “pending before EOIR.” The Supplementary Information states, however, that an alien who receives a decision by an Immigration Judge granting voluntary departure on or after the effective date of this rule will be subject to the voluntary departure bond provisions of this rule as well as all other applicable provisions. In view of this language, the Board concludes that the reversal of Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006) was not given retroactive effect and that the previous regulatory provisions, as interpreted by that decision, still govern cases in which an Immigration Judge granted an alien voluntary departure prior to the effective date of the new rule. The Board notes that this ruling eliminates any unfairness to an alien who, prior to the regulatory change, chose not to post a voluntary departure bond because the Board had ruled in Matter of Diaz-Ruacho that failing to post the bond would automatically vacate the grant of voluntary departure, rather than exercise his or her unilateral right to withdraw the voluntary departure request before the expiration of the voluntary departure period.

Because the Immigration Judge granted voluntary departure to the respondent in the instant case prior to the effective date of the new rule, and because that grant was vacated under the prior regulatory scheme, as interpreted by Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), when the respondent failed to post the required bond, there was no voluntary departure order for the Board to reinstate when it dismissed the respondent’s appeal. Therefore, the Board finds that voluntary departure should not have been reinstated in the prior decision of the instant case. Accordingly, the Board vacates that portion of its February 18, 2009 order reinstating the 60-day voluntary departure period.

Further, because the respondent’s situation was controlled by the Board’s decision in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), she is not subject to the penalty provisions of section 240B(d)(1) of the Act. Given the effective date of the new rule, its provisions, which obligate an alien who fails to pay the voluntary departure bond to nevertheless depart within the voluntary departure period or suffer the penalties for failing to do so, do not apply to her. 8 C.F.R. § 1240.26(c)(4). The motion to reconsider is therefore granted. The Board’s February 18, 2009, order reinstating the Immigration Judge’s grant of voluntary departure is vacated, which leaves the alternate order of removal to Colombia in effect.