“Congress was undoubtedly aware of the pre-existing regulatory post-departure bar. . . . [T]herefore, the ‘proper inference’ is that Congress considered whether to bar motions to reopen . . . from noncitizens who had departed the United States, and chose not to do so.” (citation omitted) (internal quotation mark omitted)
How later courts described this case
- “Congress was undoubtedly aware of the pre-existing regulatory post-departure bar. . . . [T]herefore, the ‘proper inference’ is that Congress considered whether to bar motions to reopen . . . from noncitizens who had departed the United States, and chose not to do so.” (citation omitted) (internal quotation mark omitted)
- noting the court’s review is limited to the reasons set forth by the BIA
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASBIR SINGH TOOR, No. 10-73212
Petitioner,
Agency No.
v. A056-361-534
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 4, 2015—Pasadena, California
Filed June 17, 2015
Before: Stephen Reinhardt, N. Randy Smith,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Reinhardt
2 TOOR V. LYNCH
SUMMARY*
Immigration
The panel granted Jasbir Singh Toor’s petition for review
of the Board of Immigration Appeals’ decision dismissing his
appeal of an Immigration Judge’s order denying his motion
to reopen or reconsider on the ground that the IJ and BIA
lacked jurisdiction under the regulatory departure bars
because he voluntarily departed the United States during
removal proceedings.
The panel held that two pre-IIRIRA regulations
concerning motions to reopen or reconsider made before an
IJ (8 C.F.R. § 1003.23(b)(1)) and before the BIA (8 C.F.R.
§ 1003.2(d)), referred to as the departure bars, are invalid
irrespective of the manner in which the noncitizen departed.
The panel analyzed the unpublished decision in Toor’s case
under Chevron because it was directly controlled by Matter
of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008),
which held that the departure bars apply after IIRIRA even
though the regulations predated IIRIRA. The panel held that
the text of IIRIRA made clear that the statutory right to file a
motion to reopen or reconsider is not limited by whether the
individual had departed, and that the bar is invalid
irrespective of how the noncitizen departed the United States.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TOOR V. LYNCH 3
COUNSEL
Marie L. Kayal (argued), The Law Office of Marie L. Kayal,
Burlingame, California, for Petitioner.
Ann C. Varnon (argued), Trial Attorney; Tony West,
Assistant Attorney General; Cindy S. Ferrier, Assistant
Director; and Sunah Lee, Trial Attorney, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for Respondent.
OPINION
REINHARDT, Circuit Judge:
In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA), which inter alia
provides all noncitizens a statutory guarantee that they may
file “one motion to reconsider a decision that the alien is
removable from the United States,” 8 U.S.C.
§ 1229a(c)(6)(A), and “one motion to reopen proceedings,”
8 U.S.C. § 1229a(c)(7)(A). See Dada v. Mukasey, 554 U.S.
1, 14 (2008) (“[T]he statutory text is plain insofar as it
guarantees to each alien the right to file ‘one motion to
reopen proceedings under this section.’” (citation omitted)).
That guarantee was limited in some ways — with number,
content, and time restrictions — but not in any respect by
whether the noncitizen had departed the United States prior
to filing such motions.
Two regulations that predate the passage of IIRIRA —
hereinafter referred to as the regulatory departure bar —
provide that a noncitizen who is the subject of immigration
4 TOOR V. LYNCH
proceedings may not make a motion to reopen or reconsider
“subsequent to his or her departure from the United States.”
See 8 C.F.R. § 1003.23(b)(1) (concerning motions to reopen
or reconsider made before an Immigration Judge); 8 C.F.R.
§ 1003.2(d) (concerning motion to reopen or reconsider made
before the Board of Immigration Appeals (BIA)). In Matter
of Armendarez-Mendez, 24 I & N Dec. 646, 660 (BIA 2008),
the BIA held that the regulatory departure bar survives the
passage of IIRIRA. Here, we consider whether the BIA was
correct, or whether the regulatory departure bar conflicts with
IIRIRA’s statutory guarantee that noncitizens may file one
motion to reopen and one motion to reconsider irrespective of
whether they previously departed the United States.
This is not the first time we have examined the regulatory
departure bar. As a matter of regulatory interpretation, we
have held that the departure bar does not apply to noncitizens
who departed the United States either before removal
proceedings have commenced, see Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005), or after removal proceedings
were completed, see Lin v. Gonzales, 473 F.3d 979 (9th Cir.
2007). In considering the relationship between the regulatory
departure bar and IIRIRA, we have held that the regulatory
departure bar is invalid as applied to a noncitizen who is
involuntarily removed from the United States. See Reyes-
Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011); Coyt v.
Holder, 593 F.3d 902 (9th Cir. 2010).
We have not, however, addressed whether the regulatory
departure bar may be validly applied to a noncitizen who
voluntarily departs the United States during removal
proceedings. Although we have never upheld the invocation
of the regulatory departure bar in a precedential decision, we
have reserved that question. See Coyt, 593 F.3d at 907 n.3
TOOR V. LYNCH 5
(“Other circuits have considered whether 8 C.F.R.
§ 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) . . . can be applied
to any removal — voluntary or involuntary — a question we
need not, and do not, reach in this case.”); Cardoso-Tlaseca
v. Gonzales, 460 F.3d 1102, 1106 n.2 (9th Cir. 2006). Now,
we address the question, and consistent with every other
circuit that has addressed it, we hold the regulatory departure
bar invalid irrespective of how the noncitizen departed the
United States.1
1
The other circuit courts that have addressed this issue have approached
it in two ways. The First, Third, Fourth, Fifth, Tenth, and Eleventh
Circuits have held that the regulatory departure bar clearly conflicts with
IIRIRA, and therefore fails at step one of Chevron. See Santana v.
Holder, 731 F.3d 50 (1st Cir. 2013); Prestol Espinal v. Atty. Gen.,
653 F.3d 213 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329 (4th Cir.
2007); Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012);
Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc);
Lin v. U.S. Atty. Gen., 681 F.3d 1236 (11th Cir. 2012). The Second, Sixth,
and Seventh Circuits have held that the BIA’s application of the regulatory
departure bar as a jurisdictional rule is an impermissible contraction of its
own jurisdiction. See Luna v. Holder, 637 F.3d 85 (2d Cir. 2011); Pruidze
v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder,
612 F.3d 591 (7th Cir. 2010). Although the two rationales “may not be
altogether separate,” Contreras-Bocanegra, 678 F.3d at 816, we need not
and do not opine on the rationale adopted by the Second, Sixth, and
Seventh Circuits because we resolve the case as a matter of statutory
interpretation. (The Eighth Circuit has not yet decided the validity of the
regulatory departure bar. See Ortega-Marroquin v. Holder, 640 F.3d 814,
820 (8th Cir. 2011).)
Some circuit courts have upheld the validity of the regulatory
departure bar when applied to motions to reopen or to reconsider filed
untimely, and thus out of compliance with IIRIRA. See Zhang v. Holder,
617 F.3d 650, 660–65 (2d Cir. 2010); Ovalles v. Holder, 577 F.3d 288,
295–96 (5th Cir. 2009); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676
(5th Cir. 2003). Because Petitioner’s motion was timely and, it appears,
6 TOOR V. LYNCH
I.
Jasbir Singh Toor (Petitioner), a native and citizen of
India, was admitted to the United States as a lawful
permanent resident on a conditional basis in 2003. In 2005,
the former Immigration and Naturalization Service (INS)
approved his petition to remove the conditions on his
residence. On August 23, 2007, the Department of Homeland
Security (DHS) initiated removal proceedings against
Petitioner, charging that he was removable for fraudulently or
willfully misrepresenting a material fact on a visa petition in
violation of INA § 212(a)(6)(C)(I), and for lacking a valid
entry document at the time of his application for admission in
violation of INA § 212(a)(7)(A)(i)(I). On November 3, 2008,
an Immigration Judge (IJ) sustained both charges of
removability. Two days later, the IJ granted Petitioner until
December 19, 2008, to apply for all forms of relief from
removal. Petitioner did not do so, and on February 3, 2009,
the IJ considered all requests for relief waived and
abandoned, and ordered Petitioner removed to India.
Petitioner filed a timely motion to reopen or reconsider
his removal proceedings, in which he argued that the IJ could
not validly order him removed to India because Petitioner had
already “departed the United States and arrived in India on
April 3, 2008” before the IJ ordered him removed. The IJ
denied Petitioner’s motion, holding that, pursuant to 8 C.F.R.
§ 1003.23(b)(1) — the regulatory departure bar applicable to
proceedings before an Immigration Judge — the IJ had no
jurisdiction to entertain Petitioner’s motion to reopen or
reconsider because Petitioner had “voluntarily left the United
otherwise in compliance with IIRIRA, we need not and do not address that
issue in this case. See note 7, infra.
TOOR V. LYNCH 7
States while his removal proceedings were pending.”2 The
BIA dismissed Petitioner’s appeal. Like the IJ, the BIA
explained that it had no jurisdiction to consider Petitioner’s
motion because the regulatory departure bar — located for
the BIA at 8 C.F.R. § 1003.2(d) — precludes a noncitizen
from moving the BIA to reopen or reconsider his removal
proceedings subsequent to his departure from the United
States, and Petitioner had “self-deported from the United
States during the pendency of administrative proceedings.”
The instant petition for review followed.
II.
We have jurisdiction to review questions of law presented
in a petition for review. 8 U.S.C. § 1252(a)(2)(D). “We
review the BIA’s denial of motions to reopen or to reconsider
for abuse of discretion, ‘although [de novo] review applies to
the BIA’s determination of purely legal questions.’” Cano-
Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002) (quoting
Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir. 2002)). The
subject of this appeal — the validity of the regulatory
departure bar — presents a purely legal question of statutory
interpretation to which we apply de novo review, “giving
appropriate deference to the agency if warranted.” Arteaga-
De Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir. 2012).
2
The IJ also held that even if it had jurisdiction to consider Petitioner’s
motion, the motion would fail on the merits. The BIA, however, did not
reach the merits of Petitioner’s motion, and it is not, therefore, a subject
of this appeal. Indeed, the government concedes that we cannot affirm the
BIA on the merits alone, but rather must “remand the case to the Board for
further proceedings on the merits of the motion” if we reverse the BIA’s
jurisdictional holding.
8 TOOR V. LYNCH
III.
Separate sections in the Federal Register provide
essentially an identical limitation on motions to reopen or to
reconsider filed before an IJ, on the one hand, and the BIA,
on the other. The regulation pertaining to motions to reopen
or to reconsider made before an IJ states, in relevant part:
A motion to reopen or to reconsider shall not
be made by or on behalf of a person who is
the subject of removal, deportation, or
exclusion proceedings subsequent to his or her
departure from the United States.
8 C.F.R. § 1003.23(b)(1). The regulation pertaining to
motions to reopen or to reconsider made before the BIA
states:
A motion to reopen or a motion to reconsider
shall not be made by or on behalf of a person
who is the subject of exclusion, deportation,
or removal proceedings subsequent to his or
her departure from the United States.
8 C.F.R. § 1003.2(d). These regulations compose the
regulatory departure bar. In this case, the IJ and the BIA
refused to exercise jurisdiction over Petitioner’s motion to
reopen and reconsider because he had voluntarily departed
the United States during his immigration proceedings, and
therefore was barred by the regulatory departure bar from
making a motion to reopen or to reconsider.
Petitioner argues that the regulatory departure bar
conflicts with the statutory right to file a motion to reopen
TOOR V. LYNCH 9
and a motion to reconsider provided in the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA). In Matter of Armendarez-Mendez, 24 I & N
Dec. 646, 660 (BIA 2008), the BIA held that the regulatory
departure bar, which predated the passage of IIRIRA,
“remains in full effect” after IIRIRA. The BIA explained that
it saw “nothing in the language or legislative history of . . .
IIRIRA that would lead [it] to conclude that [IIRIRA] was
intended to override the existing regulatory scheme governing
the filing and adjudication of motions in removal
proceedings.” Id. at 657.
“We apply Chevron deference to the Board’s
interpretations of ambiguous immigration statutes, if the
Board’s decision is a published decision” or an unpublished
decision “directly controlled by [a] published decision.”
Guevara v. Holder, 649 F.3d 1086, 1089–90 (9th Cir. 2011)
(quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010))
(internal quotation marks omitted). In this case, the BIA
issued an unpublished decision, but it was directly controlled
by Matter of Armendarez-Mendez, a published decision.
Therefore, we apply Chevron deference. Under Chevron, we
first ask “whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the
end of the matter . . . .” Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984). If, however,
“the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843.
Here, we hold that Congress has directly spoken to the
precise question at issue; the text of IIRIRA makes clear that
the statutory right to file a motion to reopen and a motion to
10 TOOR V. LYNCH
reconsider is not limited by whether the individual has
departed the United States.3 The regulatory departure bar,
therefore, fails at the first step of Chevron. In so holding, we
join every circuit that has resolved this issue under Chevron.
See Santana v. Holder, 731 F.3d 50, 61 (1st Cir. 2013);
Prestol Espinal v. Atty. Gen., 653 F.3d 213, 218 (3d Cir.
2011); William v. Gonzales, 499 F.3d 329, 334 (4th Cir.
2007); Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir.
2012); Contreras-Bocanegra v. Holder, 678 F.3d 811, 819
(10th Cir. 2012) (en banc); Lin v. U.S. Atty. Gen., 681 F.3d
1236, 1241 (11th Cir. 2012). We recognize that the Second,
Sixth, and Seventh Circuits have held that the regulatory
departure bar is an impermissible contraction of the BIA’s
jurisdiction. See Luna v. Holder, 637 F.3d 85 (2d Cir. 2011);
Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011);
Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010).
Without necessarily disagreeing with those courts, we choose
3
Our decision is in no way inconsistent with Singh v. Gonzales,
412 F.3d 1117 (9th Cir. 2005), or Lin v. Gonzales, 473 F.3d 979 (9th Cir.
2007). In those cases, we simply interpreted the text of the regulatory
departure bar and held that as written the bar applies only to noncitizens
who depart the United States during removal proceedings — not before
or after. In both cases, we held that the regulatory departure bar could not
be applied to the petitioners before us because they did not depart during
removal proceedings. In neither case did we uphold the application of the
regulatory departure bar. We were not asked to resolve nor did we resolve
the precise issue before us now — whether the regulatory departure bar
was overruled by IIRIRA. Singh and Lin, therefore, were cases
exclusively concerned with regulatory interpretation. We acknowledged
that fact in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) — the first case
in which we addressed the relationship between IIRIRA and the regulatory
departure bar — when we reserved the very question that we answer in
this case: whether the regulatory departure bar “can be applied to any
removal — voluntary or involuntary.” Coyt, 593 F.3d at 907 n.3. We
could not have done so if that question had already been resolved by Singh
and Lin.
TOOR V. LYNCH 11
to resolve this case under Chevron because that is the
approach taken by six of the nine circuits to have considered
the question, and the one that our cases in this area of the law
have taken. See Reyes-Torres v. Holder, 645 F.3d 1073, 1076
(9th Cir. 2011); Coyt v. Holder, 593 F.3d 902, 905 (9th Cir.
2010).
Our inquiry “begins with the statutory text, and ends there
as well,” because the text is “clear and unambiguous.”
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th
Cir. 2009) (quoting McDonald v. Sun Oil Co., 538 F.3d 774,
780 (9th Cir. 2008) (internal quotation marks omitted)).
IIRIRA states inter alia that an “alien may file one motion to
reconsider a decision that the alien is removable from the
United States,” 8 U.S.C. § 1229a(c)(6)(A), and that an “alien
may file one motion to reopen proceedings under this
section,” 8 U.S.C. § 1229a(c)(7)(A). The statute does not
limit these rights to “aliens who have not departed the United
States during their immigration proceedings,” as the
regulatory departure bar would require. The statutory rights
are, instead, guaranteed to each “alien.” The regulatory
departure bar conflicts with this clear statutory command.
See Dada, 554 U.S. at 15 (“The statutory text is plain insofar
as it guarantees to each alien the right to file ‘one motion to
reopen proceedings under this section.’” (citation omitted));
Santana, 731 F.3d at 56 (“[T]he provision unambiguously
confers upon ‘an alien’ the authority and the right to file a
motion to reopen, in language that admits of no exceptions.”);
William, 499 F.3d at 332 (“Because the statute sweeps
broadly in this reference to ‘an alien,’ it need be no more
specific to encompass within its terms those aliens who are
abroad.”); Garcia-Carias, 697 F.3d at 263 (“By its clear
terms, the statute does not distinguish between those aliens
who are abroad and those who remain in the United States —
12 TOOR V. LYNCH
the unmodified ‘alien’ captures both.”); Contreras-
Bocanegra, 678 F.3d at 816 (“The language does not
distinguish between noncitizens abroad and those in the
United States.”).
Placing these statutory rights in their proper context
confirms that IIRIRA invalidated the regulatory departure
bar. IIRIRA limits the right to file a motion to reopen and a
motion to reconsider by number, time, and content, but not in
any respect by whether the individual has departed the United
States. Specifically, the statute provides that a noncitizen
may file “one” motion to reconsider, 8 U.S.C.
§ 1229a(c)(6)(A), it “must be filed within 30 days of the date
of entry of a final administrative order of removal,” id.
§ 1229a(c)(6)(B), and it “shall specify the errors of law or
fact in the previous order and shall be supported by pertinent
authority,” id. § 1229a(c)(6)(C). Similarly, unless the
statute’s exception for victims of domestic violence applies,
a noncitizen is limited to “one” motion to reopen, id.
§ 1229a(c)(7)(A), which must “be filed within 90 days of the
date of entry of a final administrative order,” id.
§ 1229a(c)(7)(C)(i), and “shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and
shall be supported by affidavits or other evidentiary
material,” id. § 1229a(c)(7)(B). In contrast, the statute does
not contain any requirement that the noncitizen filing a
motion to reconsider or a motion to reopen remain physically
present in the United States during the immigration
proceedings. Indeed, it contains no departure-related
restriction of any kind.
“When Congress provides exceptions in a statute, . . .
[t]he proper inference . . . is that Congress considered the
issue of exceptions and, in the end, limited the statute to the
TOOR V. LYNCH 13
ones set forth.” United States v. Johnson, 529 U.S. 53, 58
(2000). As the Tenth Circuit explained, “[t]his principle is
particularly pertinent in the IIRIRA context, given that
Congress was undoubtedly aware of the pre-existing
regulatory post-departure bar.” Contreras-Bocanegra,
678 F.3d at 817. Applied here, therefore, the “proper
inference” is that Congress considered whether to bar motions
to reopen or to reconsider from noncitizens who had departed
the United States, and chose not to do so. The statute
contains several exceptions to the general grant of a right to
file a motion to reopen and a motion to reconsider, but does
not contain any related to whether the noncitizen previously
departed the United States. The regulatory departure bar
unambiguously conflicts with this decision by Congress. See
Garcias-Carias, 697 F.3d at 264 (“The fact that Congress
created limitations on the exercise of the motion to reopen,
yet did not place a geographic restriction, supports a reading
. . . that does not deny departed aliens their right to file a
motion to reopen.”); Lin, 681 F.3d at 1240 (“Congress clearly
considered and included some restrictions on the ability to
file a motion to reopen but chose not to make a limitation
based on the alien’s physical location.”).
Moreover, subsequent enactments by Congress further
demonstrate that it knew how to include a physical-presence
requirement on motions to reopen, yet did not do so for all
noncitizens who make such a motion — contrary to the
regulatory departure bar, which applies to all noncitizens.
See Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000) (“[T]he meaning of one
statute may be affected by other Acts, particularly where
Congress has spoken subsequently and more specifically to
14 TOOR V. LYNCH
the topic at hand.”). With changes enacted in 20004 and
2006,5 Congress provided that the number and time
limitations on filing a motion to reopen do not apply to
battered spouses, children, and parents, 8 U.S.C.
§ 1229a(c)(7)(C)(iv), as long as such individuals are
“physically present in the United States at the time of filing
the motion,” id. § 1229a(c)(7)(C)(iv)(IV). No other physical-
presence requirement exists in the statute governing motions
to reopen and motions to reconsider.
The addition of a physical-presence requirement confirms
that the omission of a departure bar from the statute
governing motions to reopen and motions to reconsider was
deliberate. “Where Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(citation omitted) (internal quotation marks omitted). Here,
Congress included a physical-presence requirement in the
section of the statute concerning tardy or successive motions
to reopen filed by battered spouses, children, and parents, but
did not include any presence-related requirements elsewhere
in the statute. Therefore, we must presume that Congress
intentionally excluded a presence-related requirement from
its general grant of a statutory right to file a motion to reopen
and a motion to reconsider. See Santana, 731 F.3d at 56
4
See Victims of Trafficking and Violence Protection Act of 2000, Pub.
L. No. 106-386, § 1506(c), 114 Stat. 1464, 1528 (2000).
5
See Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, § 825(a)(2)(F), 119
Stat. 2960, 3063–64 (2006).
TOOR V. LYNCH 15
(“This provision shows that Congress knew how to impose a
geographic restriction when it wanted to, and further suggests
that the statute’s general provisions do not contain such a
limitation.”); Lin, 681 F.3d at 1240 (explaining that the
physical-presence requirement included in the statute leads to
an inference that Congress “intentionally chose not to require
such presence for a motion to reopen, except in the specified
circumstances.”).
Moreover, Congress must have understood that IIRIRA
invalidated the regulatory departure bar. As the Third Circuit
explained, there would have been “no need” for Congress in
its enactments subsequent to IIRIRA to provide a physical-
presence requirement for victims of domestic violence filing
motions to reopen if IIRIRA had left the regulatory departure
bar undisturbed. Prestol Espinal, 633 F.3d at 223. In fact,
the argument to the contrary — that the regulatory departure
bar survived IIRIRA, yet Congress nevertheless provided the
physical-presence requirement for victims of domestic
violence filing late or successive motions to reopen — would
require us to read the latter provision as mere surplusage, in
direct violation of the “fundamental canon of statutory
construction that a statute should not be construed so as to
render any of its provisions mere surplusage.” United States
v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003); see also
William, 499 F.3d at 333 (“We can go beyond simply
drawing an inference regarding Congress’ intent in this case,
for a finding that physical presence in the United States is
required before any motion to reopen may be filed would
render the physical presence requirement expressly written
into subsection (c)(7)(C)(iv)(IV) mere surplusage.”);
Garcias-Carias, 697 F.3d at 264 (“[A]n interpretation of the
statute that would impose a general physical presence
requirement would effectively read the aforementioned
16 TOOR V. LYNCH
provision regarding domestic abuse victims out of the
statute.”).
In sum, our conventional tools of statutory interpretation
yield one conclusion, and one conclusion alone — the
regulatory departure bar has been invalidated by Congress.
However, notwithstanding the complete lack of statutory
authority for the regulatory departure bar and the compelling
statutory evidence that Congress legislated to the contrary,
the government argues that the regulatory departure bar may,
at least in the case of a voluntary departure, nevertheless
apply for two reasons, both of which we reject.
First, the government argues that because the regulatory
departure bar predated IIRIRA and IIRIRA did not explicitly
overturn it, Congress chose not to disturb the pre-existing
regulatory departure bar. The basic story, in the
government’s view, is the following: In 1990, Congress
directed the Attorney General to “issue regulations with
respect to . . . the period of time in which motions to reopen
and to reconsider may be offered in deportation proceedings,
which regulations include a limitation on the number of such
motions that may be filed and a maximum time period for the
filing of such motions.” Immigration Act of 1990, Pub. L.
No. 101-649, § 545(d), 104 Stat. 4978, 5066. In April 1996,
the Attorney General promulgated time and number
limitations as instructed, while also reaffirming the regulatory
departure bar. See Motions and Appeals in Immigration
Proceedings, 61 Fed. Reg. 18,900, 18,905 (Apr. 29, 1996).
Later that year, Congress enacted IIRIRA, which codified the
time and number limitations that the Attorney General had
promulgated, and — according to the government — “did not
displace or otherwise disturb the post-departure bar.” As a
TOOR V. LYNCH 17
result, the government claims, the regulatory departure bar
remains valid after IIRIRA.
The government’s argument, however, merely begs the
question — did IIRIRA, in fact, not “displace or otherwise
disturb” the regulatory departure bar? Based on the
conventional tools of statutory interpretation as applied
above, the answer is “no.” Our precedent confirms this
answer. In both Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010),
and Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011),
we held that IIRIRA invalidated the regulatory departure bar
as applied to involuntary departures. Therefore, we have
already held that IIRIRA “displace[d] or otherwise
disturb[ed]” the regulatory departure bar. In short, we have
already rejected the premise of the government’s argument.6
The government’s contention is not only unpersuasive,
but would create troubling precedent. In short,
the government would place upon Congress,
when enacting a new statute against a
background regulatory scheme, the burden of
addressing each and every regulation that
existed before and expressly stating whether
it survives the change in the statute. That
argument is untenable. As the Tenth Circuit
6
Petitioner argues in part that our decisions in Coyt and Reyes-Torres
themselves resolve his case. We do not agree. Those decisions held that
IIRIRA was incompatible with the regulatory departure bar as applied to
involuntary removals. In this case, by contrast, Petitioner departed the
United States voluntarily. Indeed, as we have said, Coyt reserved the very
question at issue in this case: whether the regulatory departure bar “can be
applied to any removal — voluntary or involuntary.” Coyt, 593 F.3d at
907 n.3.
18 TOOR V. LYNCH
explained, “[t]o require an express repeal of a
discretionary regulation in this context would
upend the fundamental principle that
regulations should interpret statutes and not
the other way around.”
Santana, 731 F.3d at 58 (quoting Contreras-Bocanegra,
678 F.3d at 818) (footnote omitted).
Moreover, far from demonstrating that Congress chose to
leave intact the regulatory departure bar, the story presented
by the government more strongly suggests that Congress
deliberately invalidated it. The government acknowledges
that IIRIRA codified some regulatory limitations in existence
at the time, yet did not codify the regulatory departure bar.
The correct inference from this fact is that Congress made a
“considered judgment” as to which regulatory limitations
would be integrated into the statutory scheme governing
motions to reopen and motions to reconsider, and the
departure bar was not one of them. See Prestol Espinal,
653 F.3d at 222 (“Congress did not codify the post-departure
bar notwithstanding its long history. Neither we nor the
agency should be permitted to override Congress’ considered
judgment.”).
Second, the government argues that “[t]he decision to bar
aliens who have left the United States from having their cases
reopened or reconsidered represented a categorical exercise
of discretion by the Attorney General.” To support this
argument, the government cites Lopez v. Davis, 531 U.S. 230,
244 (2001), which upheld the authority of an agency to make
categorical rules in place of case-by-case determinations.
TOOR V. LYNCH 19
This argument is unpersuasive as well. We have held that
“Lopez applies only when Congress has not spoken to the
precise issue and the statute contains a gap.” Rodriguez v.
Smith, 541 F.3d 1180, 1188 (9th Cir. 2008) (quoting
Wedelstedt v. Wiley, 477 F.3d 1160, 1168 (10th Cir. 2007)
(internal quotation marks omitted)). As explained above,
Congress has spoken to the precise issue here by providing a
statutory guarantee that all noncitizens may file a motion to
reopen and a motion to reconsider and by not limiting that
right to noncitizens who have remained in the United States.
Moreover, even if Lopez applied, this argument would fail
because we may affirm the BIA based only on “the
explanations offered by the agency,” Arrington v. Daniels,
516 F.3d 1106, 1113 (9th Cir. 2008); see also SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943), and the BIA has “consistently
characterized the [departure bar] regulation as jurisdictional”
rather than a “categorical exercise of discretion,”
Contreras-Bocanegra, 678 F.3d at 819.7
IV.
That Petitioner departed the United States voluntarily,
rather than involuntarily, is immaterial. The regulatory
departure bar is invalid irrespective of the manner in which
the movant departed the United States, as it conflicts with
clear and unambiguous statutory text. The BIA erred by
refusing to exercise jurisdiction over Petitioner’s motion to
reopen and to reconsider on the basis of the regulatory
7
Because Petitioner’s motion to reopen or to reconsider was timely and,
it appears, otherwise compliant with IIRIRA, we do not address whether
the BIA may validly apply the regulatory departure bar to a motion that
does not meet the number, time, and content requirements specified in
IIRIRA. See note 1, supra.
20 TOOR V. LYNCH
departure bars. We therefore GRANT the petition for review
and REMAND for further proceedings consistent with this
opinion.