Jose Euceda Hernandez v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MIGUEL EUCEDA HERNANDEZ, No. 12-71862

Petitioner,

Agency No.

v. A096-064-471

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 28, 2013—Pasadena, California

Filed December 24, 2013

Before: Diarmuid F. O’Scannlain, Carlos T. Bea,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

2 HERNANDEZ V. HOLDER

SUMMARY*

Immigration

The panel granted Jose Miguel Euceda Hernandez’s

petition for review of the Board of Immigration Appeals’

dismissal of his motion to reopen for lack of jurisdiction

pursuant to its “place-of-filing” rule.

The panel held that the Board’s interpretation of its

place-of-filing rule, providing that a motion to reopen must

be filed with the immigration judge when the Board dismisses

an appeal on jurisdictional grounds, is only a procedural

claims-processing rule and not a jurisdictional bar to the

Board’s authority to consider a motion to reopen. The panel

vacated the Board’s order and remanded for proceedings

consistent with the opinion.

COUNSEL

Isaiah Costas-Barofsky (argued) and Alexis Diamond

(argued) under the supervision of Andrew Knapp,

Southwestern Law School, Los Angeles, California, for

Petitioner.

Yedidya Cohen (argued), Stuart F. Delery, S. Nicole

Nardone, and Anthony P. Nicastro, Department of Justice,

Washington, D.C., for Respondent.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HERNANDEZ V. HOLDER 3

OPINION

CHRISTEN, Circuit Judge:

Jose Miguel Euceda Hernandez, a citizen of Honduras,

filed a motion to reopen removal proceedings with the Board

of Immigration Appeals (“the Board”) after the Board

dismissed his appeal for lack of jurisdiction. The Board

dismissed his motion to reopen for lack of jurisdiction

pursuant to its “place-of-filing” rule. Euceda Hernandez

petitions for review. We have jurisdiction over this appeal

under 8 U.S.C. § 1252(a)(1). We grant the petition and

remand this case to the Board.

I. BACKGROUND

Euceda Hernandez, a citizen of Honduras, entered the

United States in 1992. In October 2002, he filed an

application for asylum with the Immigration and

Naturalization Service (“INS”). The INS issued a notice to

appear in December 2002, charging that Euceda Hernandez

was removable under 8 U.S.C. § 1182(a)(6)(A)(i) for having

entered the United States without admission or parole.

Euceda Hernandez conceded removability but sought

cancellation of removal or, alternatively, voluntary departure.

In August 2004, an immigration judge denied Euceda

Hernandez’s application for cancellation of removal. Any

appeal was due by September 8, 2004.

Euceda Hernandez, proceeding pro se, sent notice of

appeal on September 8, 2004. The appeal was received and

filed on September 9, 2004. The Board ruled that the

immigration judge’s decision had become final because

4 HERNANDEZ V. HOLDER

Euceda Hernandez’s appeal was one day late. The Board

dismissed Euceda Hernandez’s appeal for lack of jurisdiction.

The Board’s order also informed Euceda Hernandez that the

Board could entertain a motion to reconsider, but that any

other motion, including a motion to reopen, had to be filed

with the immigration judge.

Notwithstanding the Board’s instructions, Euceda

Hernandez attempted to re-file his notice of appeal with

Board in December 2004, along with a motion to accept a late

filing. The Board treated Euceda Hernandez’s filing as a

motion to reconsider “[i]nasmuch as it asserts the appeal,

filed one day late, should be accepted as timely.” But the

Board ruled that Euceda Hernandez’s filing, construed as a

motion to reconsider, was itself untimely, and the Board

denied the motion to reconsider.

In April 2011, Euceda Hernandez, still pro se, filed a

motion to reopen with the Board. He alleged ineffective

assistance of counsel during proceedings before the

immigration court in 2004. The Board determined it did not

have jurisdiction over the motion to reopen pursuant to its

interpretation of 8 C.F.R. § 1003.2(a). The Board’s

interpretation, sometimes dubbed its “place-of-filing” rule,

provides that a motion to reopen must be filed with the

immigration judge when the Board dismisses an appeal on

jurisdictional grounds and does not enter a decision on the

merits. See In re Mladineo, 14 I. & N. Dec. 591, 592 (BIA

1974); In re Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998). In

accordance with this rule, the Board instructed Euceda

Hernandez to file his motion to reopen with the immigration

court. But Euceda Hernandez was undeterred, and he filed a

nearly verbatim motion to reopen with the Board in March

2012. In an order dated May 14, 2012, the Board reiterated

HERNANDEZ V. HOLDER 5

its conclusion that it did not have jurisdiction to decide

Euceda Hernandez’s motion to reopen and it again instructed

Euceda Hernandez that his motion had to be filed with the

immigration court.

Euceda Hernandez petitions for review of the Board’s

May 14, 2012 order.

II. STANDARD OF REVIEW

We review an agency’s determination of its own

jurisdiction de novo. Reynoso-Cisneros v. Gonzales,

491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam).

III. DISCUSSION

Euceda Hernandez argues that 8 U.S.C. § 1229a(c)(7)

permits an alien to file one motion to reopen, and that because

the statute does not limit the place of filing explicitly, the

location of the filing cannot be a jurisdictional limitation.

8 U.S.C. § 1229a(c)(7) does permit an alien to file one motion

to reopen but it does not speak to the Board’s authority to

entertain the motion. 8 U.S.C. § 1229a(c)(7)(A). The

agency’s interpretation of the statute is set out in 8 C.F.R.

§ 1003.2(a). That regulation provides that “[t]he Board may

at any time reopen or reconsider on its own motion any case

in which it has rendered a decision,” but “[a] request to

reopen or reconsider any case in which a decision has been

made by the Board . . . must be in the form of a written

motion to the Board.” (Emphasis added). Therefore, under

the regulation, if the Board has rendered a “decision,” a party

seeking to reopen must file a motion with the Board.

6 HERNANDEZ V. HOLDER

Interpreting the previous version of 8 C.F.R.

§ 1003.2(a)¯which contained the same filing requirement¯

the Board ruled that there is no “decision” by the Board when

the Board dismisses an appeal solely for lack of jurisdiction;

instead, “the attempted appeal is nugatory and the decision of

the immigration judge remains undisturbed.” In re Mladineo,

14 I. & N. Dec. 591, 592 (BIA 1974). In Mladineo, the Board

held that if “a motion is made to reopen or reconsider . . . ,

there appears to be no reason why the immigration judge

should not adjudicate it, as he does in other cases where there

was no appeal from his prior order.” Id.

In In re Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998), the

Board decided that it would entertain motions to reconsider

dismissals of untimely appeals to the extent the motions

challenged the finding of untimeliness or requested

consideration of the reasons for untimeliness. Id. But Lopez

recharacterized the Mladineo decision as one that rested on

jurisdiction. Id. In doing so, Lopez purported to modify the

Board’s claims-processing rule into an interpretation of the

regulation that limited the Board’s own jurisdiction: “we now

modify our holding in Matter of Mladineo, supra, and hold

that the Board retains jurisdiction over a motion to reconsider

its dismissal of an untimely appeal to the extent that the

motion challenges the finding of untimeliness or requests

consideration of the reasons for untimeliness.” Id. (emphasis

added).

An agency’s interpretation of its own regulation is

“controlling unless plainly erroneous or inconsistent with the

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997)

(internal quotation marks omitted). Euceda Hernandez argues

that the Board’s interpretation, as articulated in Mladineo and

Lopez, is inconsistent with the text of 8 C.F.R. § 1003.2(a)

HERNANDEZ V. HOLDER 7

because the regulation permits the Board to reopen or

reconsider any “decision” upon receipt of a written motion;

whether that decision is on the merits is immaterial. Euceda

Hernandez overlooks that a jurisdictional dismissal is not a

“decision” at all under the Board’s reasoning—it is a

statement that the adjudicatory body lacks authority to render

a decision.

Euceda Hernandez maintains that the Board’s place-of-

filing rule lacks a “discernible or acceptable purpose.” See

Judulang v. Holder, 132 S. Ct. 476, 490 (2011) (“We must

reverse an agency policy when we cannot discern a reason for

it.”). The rule ensures that the only body to have addressed

the merits of a petitioner’s application also adjudicates any

potential motion to reopen. The rule is therefore “tied . . . to

the . . . appropriate operation of the immigration system.” Id.

at 485.

Euceda Hernandez also argues that Congress implicitly

disapproved of the place-of-filing rule when it declined to

codify the rule in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996. But Congress’s

silence as to the rule in Mladineo is uninformative. It is

equally likely that Congress saw no problem with the rule and

therefore elected to maintain the status quo by not addressing

it.

Nevertheless, we conclude that Euceda Hernandez is

correct that the Board’s place-of-filing rule is a procedural

claims-processing rule, not a jurisdictional bar to the Board’s

authority to consider a motion to reopen. The originating

statute, 8 U.S.C. § 1229a(c)(7), does nothing to diminish the

Board’s jurisdiction or authorize the Board to diminish its

own jurisdiction. See Union Pac. R.R. v. Bhd. of Locomotive

8 HERNANDEZ V. HOLDER

Eng’rs, 558 U.S. 67, 83–84 (2009) (“Congress gave the

[National Railroad Adjustment] Board no authority to adopt

rules of jurisdictional dimension.”); Arbaugh v. Y & H Corp.,

546 U.S. 500, 514–16 (2006).

This case cannot be meaningfully distinguished from

Irigoyen-Briones v. Holder, 644 F.3d 943, 947–49 (9th Cir.

2011). There, our court considered whether the 30-day time

limit for filing a notice of appeal with the Board under

8 C.F.R. § 1003.38(b) is jurisdictional. We noted that under

8 C.F.R. § 1003.1(c), the Board could decide to exercise

jurisdiction over an appeal even if the notice of appeal was

filed after the 30-day deadline. Id. at 946, 949. We

concluded that “[b]y reviewing cases where the lateness is

extraordinary, the agency interprets its own regulation as a

non-jurisdictional claim-processing rule.” Id. at 949.

The situation in this case is the same. In Mladineo, the

Board used its certification authority under 8 C.F.R.

§ 1003.1(c) to consider a motion to reopen that should have

been filed with the immigration judge under the place-of-

filing rule. Mladineo, 14 I & N. Dec. at 592 (taking the case

on certification under § 1003.1(c) and denying the motion on

the merits). The Board could not have done this if the place-

of-filing rule were jurisdictional. We conclude that the place-

of-filing rule is not jurisdictional in character.

Because the Board’s place-of-filing rule is only a claims-

processing rule, we conclude the Board erroneously relied on

it to rule that it did not have jurisdiction.1 We vacate the

1

Therefore, we need not reach Euceda Hernandez’s remaining

arguments.

HERNANDEZ V. HOLDER 9

Board’s order and remand for proceedings consistent with

this opinion.

IV. CONCLUSION

We GRANT the petition for review, VACATE the

Board’s May 14, 2012 order, and REMAND for proceedings

consistent with this opinion.