Sarmiento v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2841

L EONIDA M. S ARMIENTO and

R OMEO L. S ARMIENTO ,

Petitioners,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

Nos. A097 867 848 & A097 867 849

A RGUED A PRIL 25, 2012—D ECIDED M AY 21, 2012

Before P OSNER, S YKES and T INDER, Circuit Judges.

T INDER, Circuit Judge. An alien subject to an order

of removal has 90 days from the entry of a final admin-

istrative order of removal to seek to reopen the removal

proceedings. The question presented in this case is

whether the filing of a motion to reconsider an order of

removal tolls that 90-day period until a ruling is made

2 No. 11-2841

on a motion to reconsider. An Immigration Judge

ordered removal for Leonida and Romeo Sarmiento

after refusing to adjust their status to permanent

residents, and the Board of Immigration Appeals dis-

missed their appeal. The Sarmientos moved the Board

for reconsideration, which it denied. Within 90 days of

that denial, but several months after the Board’s initial

dismissal, the Sarmientos moved to reopen. The Board

denied the motion as untimely, concluding that a

motion to reopen must be filed within 90 days of the

dismissal of the Board appeal, regardless of the

pendency of a motion to reconsider the removal order.

Because the Board’s interpretation of the applicable

statute and regulation is reasonable, the petition for

review presented to this court is denied.

I. Background

The Sarmientos, citizens of the Philippines, entered

the United States under nonimmigrant visas, Leonida in

2003 and Romeo in 2004. About a month before Leonida’s

visa was set to expire, her employer petitioned on her

behalf for alien-worker status, and she applied for ad-

justment of status. Leonida is a nurse and qualified as

a skilled worker or professional under 8 U.S.C.

§ 1153(b)(3)(A)(i) or (ii). At the same time, Romeo

applied for adjustment of status as Leonida’s spouse.

The petition for worker status was granted in late 2004.

Ten months later, immigration officials denied the

Sarmientos’ applications for adjustment of status be-

cause Leonida had not submitted evidence of her certif-

No. 11-2841 3

ication to practice nursing in the United States, as

required by 8 U.S.C. § 1182(a)(5)(C) (the results of a

necessary English exam were pending). The Sarmientos

reapplied for adjustment of status a few months later,

but their applications were again denied, this time

because Leonida filed her second application for adjust-

ment of status after her lawful status had lapsed for

over 180 days, rendering her ineligible for adjustment

of status. See id. § 1255(c)(7), (k). The Department of

Homeland Security began removal proceedings in

late 2007.

At a removal hearing before the IJ, the Sarmientos

renewed their applications to adjust their status. The IJ

denied the Sarmientos’ applications and ordered them

removed. He explained that he could not renew Leonida’s

first application because it had not been properly filed

in the first instance since it did not include evidence

of her nursing certification. And, according to the IJ,

Leonida was ineligible for adjustment of status under

her second application because she filed it after living

in the United States unlawfully for more than 180 days.

The Sarmientos appealed to the Board, arguing that

their first application had been properly filed and that

their unlawful presence in the United States for over

180 days was a result of an error by their former attor-

ney. In June 2010, the Board dismissed the appeal, con-

cluding that the Sarmientos had not shown that

their counsel was ineffective and that the IJ was correct

that they were not eligible to adjust status because

they had been in the United States unlawfully for more

than 180 days.

4 No. 11-2841

A month later, the Sarmientos moved for reconsidera-

tion, rehashing the arguments they had made in their

initial submission to the Board. The Board denied the

motion in December 2010, explaining that the motion

failed to point out any errors of fact or law in the

original dismissal. Nine months after the Board

dismissed their original appeal but within 90 days of

the Board’s denial of their motion to reconsider, the

Sarmientos moved to reopen in March 2011. They con-

tended, with supporting evidence, that they were

newly eligible for adjustment of status because their

daughter, a United States citizen who was now 21, had

petitioned to adjust status on their behalf, and those

petitions had been approved.

The Board determined that the motion was untimely

and denied it. The Board explained that the motion was

due within 90 days of its “final administrative order

of removal,” which it said was the decision issued in

June 2010 dismissing the Sarmientos’ appeal, not the

later order in December denying their motion to recon-

sider. The Sarmientos then petitioned for review.

II. Analysis

The Immigration and Nationality Act provides that

a “motion to reopen shall be filed within 90 days of the

date of entry of a final administrative order of removal.”

8 U.S.C. § 1229a(c)(7)(C)(i) (emphasis added). The

Sarmientos argue that the Board’s denial of their motion

to reconsider was a final order of removal and that

they may move to reopen the Board’s dismissal within

No. 11-2841 5

90 days of any final order of removal against them.

They conclude, therefore, that the 90-day deadline for

moving to reopen runs from the date that the court

denied their motion to reconsider in December, making

their March motion to reopen timely. The government

responds that the Sarmientos’ motion was untimely

because they had to move to reopen within 90 days of

the specific order they were challenging—and that order,

according to the government, was the Board’s initial

dismissal of their appeal.

The INA’s time limit for moving to reopen is ambigu-

ous. First, § 1229a(c)(7)(C)(i) does not state whether a

motion to reopen may be filed within 90 days of any final

order of removal, or must be filed within 90 days of the

specific final order of removal that a party seeks to chal-

lenge. Second, the INA’s definition of when an order of

removal becomes “final” has been interpreted in two ways.

The INA itself provides that an order is final when either

(1) the Board affirms the IJ’s removal order, or (2) the time

to appeal the IJ’s removal order to the Board expires. 8

U.S.C. § 1101(a)(47)(B). (Section 1101(a)(47)(B) actually

refers to an “order of deportation,” but that term is synony-

mous with “order of removal.” Viracacha v. Mukasey, 518

F.3d 511, 513-14 (7th Cir. 2008).) Some decisions read this

provision to limit “final” orders of removal to these

two instances, see Ocampo v. Holder, 629 F.3d 923, 927

(9th Cir. 2010), but others understand it to implicitly

include orders disposing of motions to reopen and recon-

sider as “final” orders of removal, see, e.g., Bronisz v.

Ashcroft, 378 F.3d 632, 636-37 (7th Cir. 2004); Dave v.

Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004); Chow v. INS,

6 No. 11-2841

113 F.3d 659, 663-64 (7th Cir. 1997), abrogated on other

grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998);

Cruz v. Attorney Gen., 452 F.3d 240, 246 (3d Cir. 2006);

Sarmadi v. INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997).

When a statute is ambiguous, courts must defer to

an agency’s reasonable interpretation of the statute.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-44 (1984); Escobar v. Holder, 657

F.3d 537, 542 (7th Cir. 2011); Dawoud v. Gonzales, 424

F.3d 608, 612 (7th Cir. 2005). Here the Board’s regula-

tion corresponding to § 1229a(c)(7)(C)(i) explains that

a motion to reopen “must be filed no later than 90

days after the date on which the final administrative

decision was rendered in the proceeding sought to be re-

opened.” 8 C.F.R. § 1003.2(c)(2) (emphasis added). The

Board was even more specific in In re Khan, 2007 BIA

LEXIS 60 (BIA June 15, 2007). There, on facts nearly

identical to this case, it held that the 90 days to file a

motion to reopen a removal order runs from the date

the Board dismissed the appeal of the IJ’s removal

order, and not the date that the Board ruled on a motion

to reconsider. Id. at *1 (citing Matter of L-V-K-, 22 I. & N.

Dec. 976 (BIA 1999)). In re Khan is not a precedential

Board decision, but it expressly relies on relevant

Board precedent in reaching its decision and therefore

is entitled to Chevron deference. See Escobar, 657 F.3d at

542; Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir.

2011); Rohit v. Holder, 670 F.3d 1085, 1087-88 (9th Cir.

2012); Quinchia v. U.S. Attorney Gen., 552 F.3d 1255, 1258

(11th Cir. 2008).

No. 11-2841 7

The Board’s interpretation of the statute, requiring

parties to move to reopen within 90 days of the Board’s

initial dismissal, is reasonable. To conclude otherwise

would allow aliens to receive extra time to move to

reopen their cases by the simple expedient of filing frivo-

lous motions to reconsider. Moreover, rejecting the

Board’s interpretation would create a circuit split with

the Fifth and Ninth Circuits. See Vega v. Holder, 611 F.3d

1168, 1170-71 (9th Cir.), petition for cert. filed, (U.S. Dec. 13,

2010) (No. 10-8010); William v. INS, 217 F.3d 340, 342-43

(5th Cir. 2000). Those circuits decided that the Board

reasonably interpreted the applicable regulation, 8 C.F.R.

§ 1003.2(c)(2) (formerly § 3.2(c)(2)), to require a motion

to reopen to be filed within 90 days of the order it is

challenging, and then reasoned that a motion to reopen

can only target the Board’s original dismissal. We agree

with this analysis.

The regulation states that the motion to reopen must

be filed within 90 days of the specific proceeding being

challenged. A motion to reopen cannot challenge an

order disposing of a motion to reconsider because the

motions have conflicting evidentiary requirements: A

party must submit new evidence for a motion to reopen,

see 8 U.S.C. § 1229a(c)(7); Munongo v. Gonzales, 479 F.3d

531, 534 (7th Cir. 2007), whereas a party may not

submit new evidence for a motion to reconsider, see 8

U.S.C. § 1229a(c)(6); Munongo, 479 F.3d at 534-35. There-

fore, the Sarmientos’ motion to reopen (which included

new evidence) can be seen only as a challenge to the

underlying removal order, not the ruling on the motion

to reconsider. See Vega, 611 F.3d at 1170-71 (stating

8 No. 11-2841

that “offering new evidence through a motion to

reopen the reconsideration proceeding would be inap-

propriate. The very purpose of a motion to reopen is

to offer new evidence. The new evidence, therefore,

can only pertain to the initial merits determination that

the alien is removable.” (citation omitted)); William,

217 F.3d at 342 (“[B]ecause an alien who seeks to

introduce new evidence can reopen only a proceeding

that once was open for the receipt of evidence, the

motion to reopen must look back to an evidentiary pro-

ceeding rather than to the denial of reconsideration.”)

Because the Sarmientos’ moved to reopen more than

90 days after the Board dismissed their appeal of the

IJ’s removal order, their motion is untimely.

This interpretation is consistent with how courts treat

deadlines to petition for judicial review of Board deci-

sions. The Supreme Court has held that a removal order

is independent of a later order denying a motion

to reconsider or reopen, and that therefore a motion

to reconsider or reopen does not extend the time to

appeal the underlying order. Stone v. INS, 514 U.S. 386, 394-

95 (1995). Following from Stone, a petition for review

must be filed within the deadline running from “the

specific order sought to be reviewed.” Nocon v. INS, 789

F.2d 1028, 1033 (3d Cir. 1986) (emphasis in original);

accord Muratoski v. Holder, 622 F.3d 824, 829-30 (7th Cir.

2010); Youkhana v. Gonzales, 460 F.3d 927, 933-34 (7th Cir.

2006); Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir.

2006); Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir. 2008);

Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

Because the time to petition for review is pegged to the

No. 11-2841 9

order to be reviewed, then the Board has reasonably

concluded that the time to move to reopen is pegged to

the order to be reopened.

The Sarmientos insist that the Board’s interpretation

is unreasonable. They contend that requiring a motion

to reopen to be filed within 90 days of the order it seeks

to challenge, rather than the last decision issued by the

Board, unfairly limits their ability to file both a motion

to reconsider and a motion to reopen. But the Board’s

approach does not prohibit parties from moving both

for reconsideration and reopening; it simply tightens

the timeline for doing so. The approach is thus

consistent with the purpose of the deadlines, which is to

“expedite petitions for review” and prevent “successive

and frivolous administrative appeals and motions.”

Stone, 514 U.S. at 399-400.

The Sarmientos’ final argument is that even if they

missed the 90-day deadline, it should have been

equitably tolled. The government responds that the

Sarmientos cannot raise this argument on appeal be-

cause they failed to exhaust their administrative

remedies by not raising the issue before the Board. The

Sarmientos reply that they invoked equitable consider-

ations in their motion to reopen and that the Board ad-

dressed equitable considerations in its order.

The Sarmientos may not raise the issue of equitable

tolling here. A party must exhaust all administrative

remedies before seeking review by this court, and failure

to raise a specific issue before the Board typically

forecloses a party from raising it on appeal. Arobelidze,

10 No. 11-2841

653 F.3d at 516-17. In their brief to the Board, the

Sarmientos did not mention equitable tolling (or a

similar concept like equitable estoppel, see Socop-Gonzalez

v. INS, 272 F.3d 1176, 1185 (9th Cir. 2001)), nor did they

cite any cases concerning equitable tolling. Their only

allusion to equity, asking in their conclusion that their

case be reopened “[i]n the exercise of justice and fair-

ness,” was too vague. Their failure to invoke equitable

tolling could be excused if the Board had nonetheless

addressed the issue, see Arobelidze, 653 F.3d at 517, but

it did not. The Board merely observed that the

Sarmientos’ circumstances did not justify reopening on

the Board’s own motion. The Sarmientos thus failed

to exhaust their administrative remedies with respect to

equitable tolling.

The petition for review is D ENIED.

5-21-12