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Keywords

appealmotionasylumdeportationequitable relief
appealmotionnaturalizationequitable relief

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Khalil v. Ashcroft

Facts

Khalil, an alien from Egypt, was denied asylum and withholding of deportation by the BIA, which granted him a 30-day period for voluntary departure. This period expired while his appeal was pending, and he did not leave the country. Instead, he filed a second petition for review regarding the BIA's denial of his motion to reopen for adjustment of status, arguing that the court's reinstatement of the voluntary departure period should apply retroactively.

Khalil did not depart, but appealed the BIA's order to this court on October 22, 2002. He asked the Immigration and Naturalization Service (INS) to extend his period of voluntary departure pending our review. The INS denied his request and set a new January 9, 2003 departure date.

Issue

Did the court's reinstatement of the voluntary departure period operate retroactively to nullify Khalil's overstay of the original departure period?

Khalil argues that our earlier reinstatement of the privilege of voluntary departure for a limited period operates retroactively and means that the BIA's basis for denying his motion to reopen is now wrong.

Rule

Grants of equitable relief, such as reinstatement of voluntary departure, typically apply prospectively rather than retroactively.

Ordinarily, grants of equitable relief apply prospectively rather than retroactively.

Analysis

The court applied the rule that reinstatements of voluntary departure periods are intended to provide future opportunities for departure without penalties, rather than to retroactively alter the consequences of prior actions. Khalil's failure to depart within the original timeframe meant he was statutorily ineligible for adjustment of status, regardless of the reinstatement.

Khalil has not cited any authority, or even any reason, for viewing the reinstatement by a court of appeals of a limited period for voluntary departure any differently.

Conclusion

The court affirmed the BIA's denial of Khalil's motion to reopen, concluding that he lost the privilege of voluntary departure due to his failure to leave within the designated time.

We affirm the BIA's decision and hold that this court's reinstatement of the privilege of voluntary departure did not have retroactive effect and thus does not provide a basis to overturn the BIA's denial of Khalil's motion to reopen.

Who won?

The Board of Immigration Appeals (BIA) prevailed because Khalil did not comply with the voluntary departure order, leading to the affirmation of the denial of his motion to reopen.

The BIA denied the motion to reopen on June 2, 2003 on the ground that Khalil was statutorily ineligible to apply for adjustment of status because he had overstayed the January 9 deadline for voluntary departure.

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