Desta v. Ashcroft

U.S. Court of Appeals for the Ninth District

2004 U.S. App. LEXIS 7204

The Petitioner, Tilahun Fantaye Desta, applied for asylum after leaving his native Ethiopia due to alleged beatings and imprisonment for his political associations.  The Immigration Judge (“IJ”) denied asylum and the Board of Immigration Appeals (“BIA”) affirmed, giving the Petitioner 30 days for voluntary departure.  After 25 days, the Petitioner appealed to the Ninth District Court of Appeals and moved for a stay of removal.  After the 30-day voluntary departure period had expired, the Petitioner moved for a stay of voluntary departure.  The Ninth District Court of Appeals affirmed the BIA’s denial of asylum, but granted the stay of voluntary departure reasoning that it was included in the motion for a stay of removal.

The Petitioner claims that he was persecuted because of his participation in anti-government groups.  He says that governmental officials arrested and tortured him on one occasion. The Petitioner also claims that on another occasion, he was forced to sign a confession admitting participation in an anti-peace movement and was subsequently imprisoned.  The Petitioner also says that his wife was imprisoned and raped because of his political affiliations.  Citing inconsistencies throughout his testimony, the IJ denied asylum due to the lack of credibility of the evidence. 

While asylum was not granted, this case is unique because the court used its equitable powers to include a motion for stay of voluntary departure within a motion for stay of removal.  The court reasoned that once the motion for stay of removal was granted, the 30-day period for voluntary departure was paused at 25 days.  Even though the Petitioner did not move for stay of voluntary departure until 30 days had passed, it is assumed by the court that the motion for stay of removal included a motion for stay of voluntary departure. Therefore, the stay of voluntary departure motion was not untimely filed.  Once the Ninth Circuit affirmed the BIA’s decision, the Petitioner had 5 days remaining for voluntary departure.

The Ninth Circuit Court of Appeals cited prior case law and the Illegal Immigration Reform and Immigrant Responsibility Act as the source of its equitable power to make this decision.  The court also pointed out that the standards for satisfying each motion are the same.  The court reasoned that the motions are ancillary because when the standard for the motion to stay removal is satisfied, the standard to stay voluntary departure is also satisfied.