Martinez Coyt v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL MARTINEZ COYT, 

Petitioner, No. 05-77080

v.

 Agency No.

A078-372-732

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 5, 2009—San Francisco, California

Filed January 20, 2010

Before: Ferdinand F. Fernandez and Sidney R. Thomas,

Circuit Judges, and Ann Aldrich,* District Judge.

Opinion by Judge Thomas

*The Honorable Ann Aldrich, Senior United States District Judge for

the Northern District of Ohio, sitting by designation.

1269

MARTINEZ COYT v. HOLDER 1271

COUNSEL

Robert Bradford Jobe, San Francisco, California, on behalf of

petitioner Rafael Martinez Coyt.

Eric Warren Marsteller, Washington, DC, on behalf of

respondent Eric H. Holder Jr.

OPINION

THOMAS, Circuit Judge:

In this petition for review, we consider whether the Board

of Immigration Appeals (“BIA”) may deem a motion to

reopen or reissue withdrawn by operation of law when the

government removes a petitioner before the BIA has ruled on

1272 MARTINEZ COYT v. HOLDER

the motion. We conclude that it cannot do so, and we grant

the petition for review.

I

Rafael Martinez Coyt entered the United States at San Ysi-

dro, California without inspection in 1984. In 2001, he was

served with a Notice to Appear charging him with removabil-

ity as an alien present who had not been admitted or paroled.

Martinez Coyt conceded removability, but applied for cancel-

lation of removal, or, in the alternative, voluntary departure.

In 2003, the immigration judge (“IJ”) found that Martinez

Coyt had no disqualifying criminal convictions, had been con-

tinuously physically present for ten years, and was of good

moral character during that time. She denied cancellation,

however, finding that Martinez Coyt was healthy and had

extensive family ties in Mexico, had not shown more than

mere loss of current employment, or the inability to maintain

his present standard of living, and had not shown any compel-

ling educational or medical needs of his children that could

not be met in Mexico. The IJ held that, while the petitioner’s

American citizen children were likely to suffer some hard-

ship, his claim did not amount to exceptional and extremely

unusual hardship. She granted a sixty-day voluntary departure

period.

Martinez Coyt timely appealed the decision. A single-

member panel of the BIA affirmed the IJ’s decision without

opinion on May 7, 2004, granting Martinez Coyt thirty days

to depart voluntarily. The order was sent to Martinez Coyt’s

former attorney at an address in Oakland, California; how-

ever, his former attorney had moved his office to Emeryville,

California. Martinez Coyt’s former attorney asserts that he did

not receive word of the decision until he made a routine

phone call to the Executive Office for Immigration Review on

October 6, 2004, several months after the expiration of the

renewed voluntary departure period. Both Martinez Coyt and

MARTINEZ COYT v. HOLDER 1273

his former attorney agree that Martinez Coyt did not find out

about the denial until sometime in early October, 2004.

Martinez Coyt was scheduled for deportation on September

20, 2005. That day, through a new attorney, he moved for the

BIA to “reissue” its decision so that the thirty-day voluntary

departure period would restart, arguing that his former coun-

sel had been ineffective. Along with the motion, he intro-

duced evidence that his son Marcos had hernia surgery in

April and may require additional surgery; that his son Rafael

Jr. had serious mental health problems dating back to at least

February of that year, including emotional outbursts and a sui-

cide attempt; and that he had been injured on the job in March

of that year, which he alleged would interfere with his ability

to provide for his children’s medical needs if he were

removed and lost his American health insurance. Martinez

Coyt also moved for an emergency motion to stay removal

pending a decision on his motion to reissue. He was removed

the same day, before the BIA had ruled on his emergency stay

motion.

The government filed its opposition to Martinez Coyt’s

motion to reissue, equating it with a motion to reopen, and

explaining that it should be denied as untimely.1 In response,

Martinez Coyt supplemented his motion, explaining that he

had been removed on September 20, 2005, and that his son

had attempted suicide on two separate occasions since that

time, had been institutionalized briefly, and at some point had

been diagnosed with bi-polar disorder. He presented a letter

from the son’s social worker tracing the suicide attempts to

their separation, as well as documentation of a lack of psycho-

1

See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (petitioner

“filed a motion to reopen with the BIA, requesting that it reissue its deci-

sion so [he] could timely appeal to this court”); see also Chen v. U.S. Atty.

Gen., 502 F.3d 73, 75 (2d Cir. 2007) (“A motion to reissue is treated as

a motion to reopen.” (citing Tobeth-Tangang v. Gonzales, 440 F.3d 537,

539 n. 2 (1st Cir. 2006)).

1274 MARTINEZ COYT v. HOLDER

logical services and appropriate medical care in Mexico that

would prevent their reunification outside of the United States.

A one-member panel of the BIA issued a per curiam order

on November 28, 2005, citing 8 C.F.R. § 1003.2(d) to find

that Martinez Coyt’s departure resulted in the withdrawal of

his motion. Martinez Coyt timely petitioned us to review the

BIA decision.

II

At issue in this petition for review is one aspect of the

BIA’s regulatory “departure bar,” under which the BIA deems

a pending appeal or motion to reopen or reconsider withdrawn

if the petitioner departs from the United States, either volun-

tarily or involuntarily. The departure bar at issue in this case,

8 C.F.R. § 1003.2(d), reads in relevant part:

Any departure from the United States, including the

deportation or removal of a person who is the subject

of exclusion, deportation, or removal proceedings,

occurring after the filing of a motion to reopen or a

motion to reconsider [before the BIA], shall consti-

tute a withdrawal of such motion.

Martinez Coyt claims that the regulation as applied to him

is invalid, as being ultra vires to the governing statute.

A

[1] We must first dispose of the government’s unpersuasive

argument that we lack appellate jurisdiction over Martinez

Coyt’s challenge to the validity of 8 C.F.R. § 1003.2(d)

because he did not exhaust this claim before the BIA. As Mar-

tinez Coyt points out, he had no right to challenge the validity

of the regulation before the BIA, because “[t]he BIA simply

has no authority to invalidate a regulation that it is bound to

follow.” Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273

MARTINEZ COYT v. HOLDER 1275

(9th Cir. 1996). Because the BIA has no authority to declare

a regulation invalid, “the exhaustion doctrine does not bar

review of a question concerning the validity of an INS regula-

tion because of a conflict with a statute.” Id. at 1273-74. Thus,

Martinez Coyt did not need to present his regulatory chal-

lenge to the BIA before raising it in a petition for review.

B

In determining whether the Attorney General exceeded

statutory authority in promulgating an immigration regulation,

we employ the familiar analysis dictated by Chevron U.S.A.

v. Natural Res. Def. Council, 467 U.S. 837 (1984) and Food

& Drug Admin. v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000). United States v. Dang, 488 F.3d 1135, 1140

(9th Cir. 2007).

Chevron requires that we examine in the first instance

“whether Congress has directly spoken to the precise question

at issue.” 467 U.S. at 842. “If Congress has done so, the

inquiry is at an end; [we] ‘must give effect to the unambigu-

ously expressed intent of Congress.’ ” Brown & Williamson,

529 U.S. at 132 (quoting Chevron, 467 U.S. at 843). In deter-

mining Congressional intent under Chevron, we not only look

at the precise statutory section in question, but we also ana-

lyze the provision in the context of the governing statute as

a whole, presuming congressional intent to create a “ ‘sym-

metrical and coherent regulatory scheme.’ ” Id. at 133 (quot-

ing Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)).

Finally, “we must be guided to a degree by common sense as

to the manner in which Congress is likely to delegate [such

an important] policy decision.” Id.

If, after conducting such an analysis, we conclude that Con-

gress has not addressed the issue, we “must respect the agen-

cy’s construction of the statute so long as it is permissible.”

Id. at 132 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999), and Auer v. Robbins, 519 U.S. 452, 457 (1997)).

1276 MARTINEZ COYT v. HOLDER

However, “we must reject those constructions that are con-

trary to clear congressional intent or that frustrate the policy

that Congress sought to implement.” Schneider v. Chertoff,

450 F.3d 944, 952 (9th Cir. 2006).

[2] In the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208,

§ 304(a), 110 Stat. 3009-546, 3009-593 (Sept. 30, 1996),

Congress amended the Immigration and Nationality Act

(“INA”) by, among other things, granting aliens subject to a

removal order the right to file one motion to reopen. 8 U.S.C.

§ 1229a(c)(7)(A); Dada v. Mukasey, 128 S.Ct. 2307, 2310

(2008). IIRIRA provides that a motion to reopen must be filed

within ninety days of the entry of a final order of removal. 8

U.S.C. § 1229a(c)(7)(C). IIRIRA also requires that, “when an

alien is ordered removed, the Attorney General shall remove

the alien from the United States within a period of 90 days.”

8 U.S.C. § 1231(a)(1)(A).

The government argues that it is permissible to interpret

IIRIRA to mean that, where the Attorney General complies

with Congress’s directive to remove an alien within ninety

days, by that very act he unilaterally cuts short the ninety day

period Congress granted the alien to file a motion to reopen.

Moreover, he unilaterally causes to be withdrawn any motion

that the alien already filed. This is so, the government argues

in this case, even where the alien filed a motion to stay

removal along with the motion to reopen, and even if the BIA

has not yet ruled on the stay motion. According to the govern-

ment, the BIA is simply stripped of jurisdiction.

[3] These arguments are contrary to the IIRIRA statutory

scheme. In considering the context of the governing statute as

a whole, presuming congressional intent to create a “symmet-

rical and coherent regulatory scheme,” the intent of Congress

is clear. As we have previously held, Congress wished to

expedite the physical removal of those aliens not entitled to

admission to the United States, while at the same time

MARTINEZ COYT v. HOLDER 1277

increasing the accuracy of such determinations. See Morales-

Izquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir. 2007) (en

banc) (citing H.R. Rep. No. 104-469(I), at 111 (1996)).

[4] To that end, IIRIRA “inverted” certain provisions of the

INA, encouraging prompt voluntary departure and speedy

government action, while eliminating prior statutory barriers

to pursuing relief from abroad. Nken v. Holder, 129 S. Ct.

1749, 1755 (2009). Previously, an alien was afforded an auto-

matic stay of an order of final removal pending final action

by the courts. 8 U.S.C. § 1105a(a)(3) (repealed 1996). The

stay was required because, under prior law, removal of a peti-

tioner from the United States precluded courts from exercis-

ing jurisdiction over petitions for review. 8 U.S.C. § 1105a(c)

(repealed 1996). IIRIRA changed that by lifting the prior stat-

utory bar over courts exercising jurisdiction over departed

aliens, removing the automatic stay provision upon petition

for review, and informing the Attorney General that removal

need not be deferred. IIRIRA § 306(b), 110 Stat. 3009-612

(repealing § 1105a); 8 U.S.C. § 1252(b)(3)(B); 8 U.S.C.

§ 1252(b)(8)(C). Thus, in passing IIRIRA, Congress antici-

pated that petitioners would be able to pursue relief after

departing from the United States.

Congress’s dual goals are apparent not only in IIRIRA’s

provisions concerning judicial review, but in its provisions

concerning administrative relief. IIRIRA, for the first time,

provides petitioners with a statutory right to file a motion to

reopen administrative proceedings, while specifying that the

right must be exercised within ninety days after the final order

of removal. 8 U.S.C. § 1229a(c)(7)(A); Dada, 128 S. Ct. at

2315-16; see also 8 U.S.C. § 1229a(c)(6) (creating a statutory

right to file a motion to reconsider, within thirty days of the

entry of a final administrative order); 8 U.S.C. § 1229c(b)(2)

(“Permission to depart voluntarily under this subsection shall

not be valid for a period exceeding 60 days.”); Dada, 128

S.Ct. at 2318 (construing IIRIRA voluntary departure with

regard to the motion to reopen’s “purpose . . . to ensure a

1278 MARTINEZ COYT v. HOLDER

proper and lawful disposition”). IIRIRA also requires the

Attorney General to effectuate physical removal of petitioners

subject to a final order of removal within ninety days of the

order. 8 U.S.C. § 1231(a)(1)(A).

[5] It would completely eviscerate the statutory right to

reopen provided by Congress if the agency deems a motion to

reopen constructively withdrawn whenever the government

physically removes the petitioner while his motion is pending

before the BIA. The only manner in which we can harmonize

the provisions simultaneously affording the petitioner a ninety

day right to file a motion to reopen and requiring the alien’s

removal within ninety days is to hold, consistent with the

other provisions of IIRIRA, that the physical removal of a

petitioner by the United States does not preclude the peti-

tioner from pursuing a motion to reopen.

Our conclusion that 8 C.F.R. § 1003.2(d) cannot apply to

cause the withdrawal of an administrative petition filed by a

petitioner who has been involuntarily removed from the

United States is consistent with the approach taken by the

only other circuit to address the question of involuntary

removal specifically. In Madrigal v. Holder, 572 F.3d 239

(6th Cir. 2009), the Sixth Circuit held 8 C.F.R. § 1003.4 to be

“inapplicable” where the petitioner is forcibly removed during

the pendency of his appeal. Id. at 244.2 The Sixth Circuit rea-

soned that a party’s withdrawal of a pending proceeding must

be a voluntary relinquishment of a right, and that an involun-

tary removal could not be held to constitute a voluntary with-

drawal. Id. As the concurring opinion succinctly put it:

The government forcibly removed [the petitioner]

2

In relevant part, 8 C.F.R. § 1003.4 states that “[d]eparture from the

United States of a person who is the subject of . . . removal proceedings,

. . . subsequent to the taking of an appeal, but prior to a decision thereon,

shall constitute a withdrawal of the appeal, and the initial decision in the

case shall be final to the same extent as though no appeal had been taken.”

MARTINEZ COYT v. HOLDER 1279

from the United States, and now claims she aban-

doned her appeal because she left the country. To

state that argument should be to refute it . . . .

Id. at 245-46 (Kethledge, J., concurring).3

III

In this case, there is an additional question as to the timeli-

ness of Martinez Coyt’s motion. Whether the motion to

reopen is timely, however, depends on the resolution of the

substantive argument in the motion itself, and Martinez Coyt

filed a motion to stay removal so that the BIA could address

that issue. Rather than allowing either motion to be heard,

however, the government removed Martinez Coyt knowing

that, under the BIA’s understanding of the Attorney General’s

regulations, it was stripping the BIA of jurisdiction over his

case. See In re Armendarez-Mendez, 24 I & N Dec. 646, 648

(BIA 2008). It is not for us to address the question of timing

in the first instance, but rather for the agency tasked with the

administration of IIRIRA. See Gonzales v. Thomas, 547 U.S.

183, 187 (2006). Thus, we remand this issue to the BIA for

its consideration.

IV

[6] The BIA erred in refusing to entertain Martinez Coyt’s

3

Other circuits have considered whether 8 C.F.R. § 1003.2(d) and 8

C.F.R. § 1003.23(b)(1), a nearly identical provision relating to motions to

reopen or reconsider filed before an immigration judge, can be applied to

any removal—voluntary or involuntary—a question we need not, and do

not, reach in this case. Those circuits are split. The Fourth Circuit has

invalidated 8 C.F.R. § 1003.2(d) in its entirety. William v. Gonzales, 499

F.3d 329 (4th Cir. 2007). The Tenth Circuit upheld both regulations.

Rosillo-Puga v. Mukasey, 580 F.3d 1147 (10th Cir. 2009); see also Men-

diola v. Holder, 585 F.3d 1303 (10th Cir. 2009). The Fifth Circuit upheld

8 C.F.R. § 1003.2(d) on narrower grounds. Ovalles v. Holder, 577 F.3d

288, 295-96 (5th Cir. 2009) (distinguishing facts from William).

1280 MARTINEZ COYT v. HOLDER

motion because it relied on a regulation that was invalid as

applied to a forcibly removed petitioner. Therefore, we grant

the petition and remand for further proceedings consistent

with this opinion. Given our decision, we need not—and do

not—decide any other question raised by the parties.

PETITION GRANTED; REMANDED.