Petition for Writ of Certiorari — Rosillo-Puga v. Holder

Supreme Court, U:S.

FILED

No.

N9I3A? MAY 7 - 2010

Jn Whe OFFICE OF THE CLERK

Supreme Court of the Anited States

--@ aa

MARTIN ROSILLO-PUGA,

Petitioner

Vv.

ERIC H. HOLDER,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

— |

LAURIE WEBB DANIEL DANIEL KANSTROOM

CYNTHIA G. BURNSIDE* C/O BOSTON COLLEGE

HOLLAND & KNIGHT LLP LAW SCHOOL

Suite 2000 885 Centre Street

1201 West Peachtree St., N-LE. Newton, MA 02459

Atlanta, GA 30309 kanstroo@bc.edu

eynthia.burnside@hklaw.com (617) 552-0880

(404) 817-8500 (617) 552-4098 (F)

(404) 881-0470 (FF)

*Counsel of Record

for Petitioner

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO (S800) 225-664

OR CALL COLLECT (402) 342-2891

QUESTION PRESENTED

In 1996, the Illegal Immigration Reform and

Immigrant Responsibility Act (IiRIRA) provided

aliens the statutory right to file a motion to re-

consider a determination of removability (8 U.S.C.

§ 1229a(c)(6)A)) and to reopen removal proceedings.

8 U.S.C. § 1229a(c 7A). The statute expressly im-

poses limits on the number and timing of such

motions, but does not condition the right to file on

an alien’s geographic location. When the Attorney

General promulgated implementing regulations for

IIRIRA, however, she retained, without amendment,

a pre-IIRIRA regulation barring aliens from filing

such motions after the alien has been removed from

or has voluntarily departed the United States. The

questions presented are:

(1) Whether this regulation, 8 C.F-R. § 1003.23(b)\1),

is invalid under IIRIRA because it denies aliens who

have been removed or who otherwise have departed

the United States their statutory right to file a mo-

tion to reopen or reconsider an order of removability.

(2) Whether the Tenth Circuit Court of Appeals

may usurp the Immigration Judge’s (lJ) and Board of

Immigration Appeal’s (BIA) discretionary authority to

sua sponte reconsider or reopen removal proceedings

by denying a petition for review based on reasons not

articulated in either the IJ’s or BIA’s orders denying

the motion in the first instance.

TABLE OF CONTENTS

Page

QUESTION PRESENTED......................... | i

TABLE, CO Pea si srrecr esse ccs ccc sc cece ccc sc cece. iv

OP Tar as ok csvccccsccccccccceceeees 1

MB ee |

STATUTORY AND REGULATORY PROVISIONS

Ny ae cic esccceccececcccccses 2

STALE Ee areas ice cy scccsccccccccccece 2

A. Statutory And Regulatory Background ...... 5

B. Min. Meera pee eee.............................. 9

C. Removal Proceeasmgs................................0.. 10

D. Motion To Reconsider Or Reopen Removal

Proceedings And Appeal To BIA.................. 11

E. ‘Temtis Gapeuse ereeemeo................................. 13

REASONS FOR GRANTING THE PETITION..... 14

[. The Courts Of Appeals Are Divided Over

The Validity Of 8 C.F.R. § 1003.23(b) And

The Companion Regulation, 8 C.FR.

GS cccccccccccccccccccecce. 15

Il. The Issue Presented Here Is A Recurring

One Of Substantial Practical Importance .... 20

A. The Practical Importance Of Motions

To Reopen And Reconsider Counsels In

es... cscccecsceee. 21

B. Court Of Appeals Confusion Over

Dada v. Mukasey Requires Resolution

Mi

Neo veacnnccccsecsccecesees

11]

TABLE OF CONTENTS — Continued

Page

Ill. The Tenth Circuit’s Decision Was Wrong....

A. The Statutory Language Is Plain And

28

FIR 5 css os ecasp ines ioe Seances 29

B. The Structure Of The Statute Con-

firms Congress’ Intent For The Reach

Of §§ 1229a(c)(6)(A) And 7(A) To Be

Sufficiently Broad To Include Departed

PAE gaeiccpindennse cee 30

C. Legislative History Confirms Congress’

Intent To Include Even Those Aliens

WED FEGVO EPOORTOO oo oonsocs ccc scen cscs es ccsxess 32

IV. The Tenth Circuit’s Alternative Basis For

Denying The Petition Is Erroneous ............ 35

CP eek PIES 5s vckiccahn a vananhaveisunsa vas eiecae aha as 37

APPENDIX

DORE Circuit CO on cscs sccsascssesncsocosscaeenas esses App. l

PII o3foiccsccsacn hasucsca este acesc eh ee App. 57

Decision of the Board of Immigration Appeals.... App. 59

Decision of the Immigration Judge....................4. App. 62

Tenth Circuit Order on Rehearing....................-+. App. 66

B UBC. BD UAC ID ink ah cosa vos cos eassaseasons App. 68

BE. © Ae a oo osestasi oeceece App. 68

BU. Be. FV et 2) Sa vektxeecta ries i aseeasecessaans App. 69

lv

TABLE OF AUTHORITIES

Page

CASES

Ardestani v. INS, 502 U.S. 129 (1991).......................22

Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) ............ 24

Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.

, IRR a rear pear nene ae oO EeL Ese EE CIE P ORTON MMF EN 30

Benslimane v. Gonzales, 430 F.3d 828 (7th Cir.

I Sins PSCC Sr ner Te eee ee ee ee ee 22

Boumediene v. Bush, 553 U.S. 723 (2008) ................. 24

Castillo-Perales v. Mukasey, 298 F. App’x 366

COUR Oe © iRe csds bacs cacneemrnie en ree ee TEE ARR M AL ARISE PAD 18

Chevron U.S.A., Inc. v. Natural Resources De

fense Council, Inc., 467 U.S. 837 (1984).................30

Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010).............. 17

Dada v. Mukasey, 128 8. Ct. 2307 (2008)......20, 27, 23

Dodd v. United States, 545 U.S. 343 (2005) .............. 29

Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.

| RRR em ni per Ae Pred RAI ne hop apr R ELI. RIS een, FOS Ty fap

Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th

eo he eee ee ee ee eee 35

Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003)..... 2,10

FPC v. Texaco, Inc., 417 U.S. 380 (1974) ........000........ 36

LLNS. v. St. Cyr, 533 US. ZEB C2001) qc... cccsccccsccsccssses 22

In re G-D, 22 1I&N Dec. 1132 (BIA 1999) ...00000 000. 25

In re GCL, 23 I&N Dec. 359 (BIA 2002) .................... 25

TABLE OF AUTHORITIES - Continued

Page

In re S-M-J-, 21 I&N Dec. 722 (BIA 1997) ........0....... 34

In re XGW, 22 IKE&N Dec. 71 (BIA 1998)...........000000.... 26

ENS vu. Awe, 464 U.G. O4 (TBBGS) oo cccccccccccccessccccccccesss 34

Kucana v. Holder, 130 S. Ct. 877 (2010).................... 25

Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)............ 19

Mansour v. Gonzales, 470 F.3d 1194 (6th Cir.

eM een oe See a a eee ee ee oe 19

Mayo v. Schiltgen, 921 F.2d 177 (8th Cir. 1990)........ 36

Mendiola v. Holder, 585 F.3d 1303 (10th Cir.

REISER areca rE ew Ee ROR ney Oe SO Ree ey

Munoz De Real v. Holder, 595 F.3d 747 (7th

ce TE” MARR Seapine dell CS RE ea OE PA DON Fe Pe 18

Navarro-Miranda v. Ashcroft, 330 F.3d 672

ee ute le all aia eceuas sae 18

Nken v. Holder, 129 S. Ct. 1749 (2009)........0.00.cc.. 35

Nken v. Holder, 130 S. Ct. 827 (2010)....................00:. 20

Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009)......... 18

Padilla v. Kentucky, __ S. Ct. _., 2010 WL

Dee PO CIO BL, DROS oiviciccscicccccesssvavccccesentacs a, 2

Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir.

et EERE GE A Sal SES Se Fee EN eT BE aH SE Seen eS eS ARE 19

Rosillo-Puga v. Holder, 580 F.3d 1147 (2009).............. 1

Securities and Exchange Comm’n v. Chenery

Cg eae Bie OD vances ea cosstncanvanancacsaecds 36, 37

Vi

TABLE OF AUTHORITIES — Continued

Page

Silerto-Nunez v. Holder, No. 08-9556, 2009 WL

ye eee Chere SAP, EAOG. 16, DOC) ooccicccsicicccccsscscscsss 17

Toledo-Hernandez v. Mukasey, 521 F.3d 332

ae ax cia cue adsguxs ius ous kasvkcssnsanvenevence> «aes 25

United States v. Johnson, 529 U.S. 53 (2000) ...........31

Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) ......... 24

Wang v. Att’y General of U.S., 423 F.3d 260 (3d

ee cc sy chdvesunnis SULiLEsadeieetasaeeeneene: 23, 24

William v. Gonzales, 499 F.3d 329 (4th Cir.

| Sere ete va anus acu une pays sandcnuen ces passim

Zadvydas v. Davis, 533 U.S. 678 (2001)..................8. 24

STATUTES

Oe Oe Ficus pasaveavennecnchsdcpuecevensvevereravee 5

rs We OI snecccccsnssssvenceccessevscessesceneveseces 7, 34

re oo Ly eshavcaycvcevdvaenoadcatasvonnss 7, 19, 34

ere ee ND) os éscccucnascns es devasnecseseasn 10, Li

rs EEE) sss cencssncstscccvasssscsnvscaenses 10, 11

I aia ek Jus aN sw bakanenh saukennccannens 30, 31

eee, AD co ccscccnccccocccscaccncnascccacccses passim

ee ie ED vars ins sins ynnescsscscscsesvacevessecsenses 31

EE RE ES |) eae 31

280 5 Oe Bee Ve ) ee passim

ers I FUDD vines cscscescscnnsosnasessacndcnssevsvedesss 31

TABLE OF AUTHORITIES — Continued

Page

DB Res. SF BI dD iis ctsknckccessensscrcescssxsatuonnmciays 31

8 U.S.C. § 1229a(c)(7)(C)av IV)

8 U.S.C. § 1229a(c)(6)-(7)

8 U.S.C. § 1229(a\(1)

18 U.S.C. § 16

28 U.S.C. § 1252(a)(5)

ae ET bsccn sanceckasesvecucsacsaccniseaxekinasayebeaineensins 1

Ind. Code § 35-42-1

LEGISLATIVE SOURCES

Pub. L. No. 104-208, 110 Stat. 3009

Pub. L. No. 109-13, 119 Stat. 231 ....0.......... ccc eeeeeeeeeeee

5 Fed. Reg. 3503-3504 (Sept. 4, 1940)...........0......002..2.. 6

23 Fed. Reg. 9115, 9118 (1958)

64 Fed. Reg. 56135 (Oct. 18, 1999) ................cccsccsseees ‘

67 Fed. Reg. 54878 (Aug. 26, 2002)

68 Fed. Reg. 9824, 9826 (Feb. 28, 2003)

H.R. Rep. No. 104-469, pt. 1, at 157 (1996)

Proposals for Immigration Reform: Hearing Be-

fore the Subcomm. on Immigration and Refu-

gee Affairs of the S. Comm. on the Judiciary,

103rd Cong. 40 (1994) (statement of Barbara

Jordan, Chair, Comm’n on Immigration Re-

IRAN AGR ARS Nae Or oh SUPER OE EAA EERE AACS

Vill

TABLE OF AUTHORITIES — Continued

Removal of Criminal and Illegal Aliens: Hear-

ing Before the Subcomm. on Immigration

and Claims of the H. Comm. on the Judici-

ary, 104th Cong. 15 (1995) (statement of T.

Alexander Aleinikoff, General Counsel, Im-

migration and Naturalization Service)

Members’ Forum on Immigration: Hearing Be-

fore the Subcomm. on Immigration and Claims

of the H. Comm. on the Judiciary, 104th Cong.

38 (1995) (statement of Rep. Susan Molinari)

REGULATORY SOURCES

8 C.F.R. §

8 C.E.R.

8 C.F.R. § 1003.2

8 C.F.R. § 1003.2(b)(1)

8 C.E_LR. § 1003.2(c)(1)

8 C.F.LR. § 1003.2(d) passim

I cS 2 aug a vos beasiveastsancswecednuvenl 25

8 C.FLR. § 1003.23(b)

8 CLELR. § 1003.23(b)(1)

8 C.F.R. § 1003.23(b)(2)

8 C.F.R. § 1003.23(b)(3)

TABLE OF AUTHORITIES — Continued

LAW REVIEW ARTICLES

Daniel Kanstroom, Deportation, Social Control,

and Punishment: Some Thoughts About Why

Hard Laws Make Bad Cases, 113 Harvard

Law Review 1890-1935 (2000)..............0..00000... .

Diana R. Podgorny, Rethinking the Increased

Focus on Penal Measures in Immigration

Law as Reflected in the Expansion of the “Ag-

gravated Felony” Concept, 99 J. Crim. L. &

Criminology 287, 295-296 (2609)

Jaya Ramyji-Nogales et al., Refuge Roulette:

Disparities in Asylum Adjudication, 60 Stan.

Law R. 295 (2007)

Jill E. Family, A Broader View of the Im-

migration Adjudication Problem, 23 Geo.

Trmigy. 1,0). GE, Grecia cacccsccesesccccvcccess 23

John R.B. Palmer et al., Why Are So Many

People Challenging Board of Immigration

Appeals Decisions in Federal Court? An Em

pirical Analysis of the Recent Surge in Peti-

tions for Review, 20 Geo. Immigr. L.J. 1, 23 &

29-31 (2005)

Maureen A. Sweeney, Fact or Fiction: The Le-

gal Construction of Immigration Removal for

Crimes, 27 Yale J. on Reg. 47, 66-67 (2010)

PE'TITION FOR A WRIT OF CERTIORARI

Petitioner Mr. Martin Rosillo-Puga respectfully

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Tenth Circuit (App., infra, 1) is reported

at 580 F.3d 1147. The court of appeals’ order denying

rehearing en banc (App., infra, 66) is unpublished.

The order of the Board of Immigration Appeals

denying petitioner’s motion to reopen (App., infra, 59)

is unpublished.

The order of the Immigration Judge denying peti-

tioner’s motion to reopen (App., infra, 62) is unpub

lished.

JURISDICTION

The judgment of the court of appeals was entered

on September 15, 2009. A timely petition for re-

hearing was denied on December 8, 2009. On March

1, 2010, Justice Sotomayor extended the time for

filing a petition for a writ of certiorari to May 7, 2010.

This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

-¢

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

IS U.S.C. 8&8 LZ29a(c)(6)A) and (c)7)A)|

IS C_E.R. § 1003.23(b)(1)|

The relevant statutory and regulatory provisions

are set out in the appendix to this Petition

*

STATEMENT

Congress has provided that aliens determined

removable from the United States may file a motion

to reconsider the order of removal and/or to reopen

the removal proceedings, so that they muy present

new evidence or seek relief from error. This case

involves Mr. Martin Rosillo-Puga, formerly a lawful

resident of the United States, married for 16 years to

a U.S. citizen, with two U.S. citizen children and

deported due to a misdemeanor ‘battery conviction.

Shortly after his removal, the Seventh Circuit held

that a conviction under the same Indiana battery

statute pursuant to which Mr. Rosillo was convicted

and removed, did not constitute an aggravated felony

or a crime of violence as required to support an order

of removal. See Flores v. Ashcroft, 350 F.3d 666 (7th

Cir. 2003).

While there is no geographic limitation on those

aliens entitled to file a motion to reconsider removal

or to reopen removal proceedings in the statutory text

establishing these remedies, in this case the Tenth

3

Circuit held that such relief is unavailable to aliens

once they have departed the United States. This issue

has been widely litigated and has divided the nu-

merous courts of appeals who have considered the

validity of the regulatory departure bar. In this case,

the Tenth Circuit flatly rejected the Fourth Circuit's

contrary and well-reasoned opinion that Congress

expressly and unambiguously guaranteed aliens the

right to seek removal or reconsideration regardless of

their location. Four other courts of appeals also have

taken conflicting approaches to the question.

This is an issue of substantial practical impor

tance. Under the current state of the law, an alien

who follows the law and departs the United States

after an unfavorable determination in removal pro-

ceedings would be unable to file a motion to reopen or

reconsider in the First, Fifth, Sixth and Tenth Cir

cuits, while aliens in the Fourth and Ninth Circuits

would be able to seek such redress even after de

parting. More astonishing, however, is that under the

current state of the law, an alien who defies an order

of removal and remains in the country illegally is

entitled to seek this relief in every Circuit.

By holding that alicns who follow the law and

depart as required may not avail themselves of such

relief, the Tenth Circuit departed from the governing

statutory language, and frustrated the congressional

purpose. To bring uniformity to the courts of appeals

and eliminate a significant distortion of the immi-

gration law, further review is warranted.

This petition is submitted in coordination with

counsel for Petitioner Eddie Mendiola who will be fil-

ing a similar petition, from the same (Tenth) Circuit

on or before May 28, 2010. For the Court’s conven-

ience and for the sake of judicial economy, counse!

suggest that the Court consider these petitions to-

gether. These cases challenge the validity of different,

but substantively identical regulations prohibiting

the filing of motions to reopen removal proceedings or

reconsider an order of removal by those aliens who

have departed the United States. Both regulations

suffer from the same defect — they are contrary to

Congress’ express intent to offer relief to any and all

aliens who have had an adverse ruling on re-

movability regardless of their geographic location

when such motions are filed.

This petition differs from the Mendiola petition

in that it also challenges the validity of the ‘Tenth

Circuit’s alternative basis for denial of Mr. Rosillo’s

appeal — that his motion to reopen and/or reconsider

was untimely. The Tenth Circuit exceeced the scope

of its review authority, because the IJ’s and BIA’s

orders clearly indicate that no procedural or sub-

stantive issues were considered at all. Rather, first

the IJ and then the BIA determined that they had no

jurisdiction to consider any substantive or procedural

aspect of Mr. Rosillo’s motion to reopen and/or recon-

sider solely because he had departed the country.

A. Statutory And Regulatory Background.

1. The government initiates removal proceed-

ings against a noncitizen by filing a Notice to Appear

with an Immigration Judge (IJ), specifying the

grounds alleged for removal. 8 U.S.C. § 1229(a)(1).

Aliens determined to be removable by an IJ may

appeal their removal order to the BIA. The removal

order becomes final upon review by the BIA (or upon

expiration of the BIA review filing deadline). /d.

§ 1101(a\(47). At that point, the alien may seek

judicial review of the removal order by filing a pe-

tition for review in the court of appeals for the circuit

in which the removal hearing was conducted. /d.

§ 1252(a)(5).

An alien also may seek administrative review

of an IJ’s removal decision or of a final removal order

by filing a motion to reopen or reconsider.’ /d.

§ 1229a(c)(6)-(7). Motions to reopen give aliens a

chance to challenge their removal by presenting new,

material facts unavailable at their original removal

proceedings. 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b\3).

Motions to reconsider allow an alen to challenge

' Such motions are filed directly with the IJ where the BLA

does not take jurisdiction over the alien’s case - for cxample,

where an alien fails to appeal his removal order. Otherwise, they

are properly filed with the BIA. See BIA Practice Manual App. K

(Where to File a Motion).

6

mistakes of fact or law in the original administrative

decision. Jd. §§ 1003.2(b)(1), 1003.23(b)(2).”

The BIA has had the authority to entertain such

motions since its creation. See 5 Fed. Reg. 3502,

3503-3504 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.9)

(creating the BIA and providing that “[t]he recon-

sideration, reargument or reopening of a final deci-

sion by the Board of Immigration Appeals shall be

permitted only upon motion.”); see also 23 Fed. Reg.

9115, 9118 (1958) (final rule codified at 8 C.F.R. § 3.2

(1959)) (allowing the BIA to “reopen or reconsider any

case in which it has rendered a decision” on its own

motion or by written motion of a party). Until 1996,

however, motions to reopen and reconsider removal

orders were solely creatures of regulation. The gov-

erning regulations prevented the Board or an IJ from

considering motions to reopen or reconsider filed “by

or in behalf of a person who is the subject of de-

portation proceedings subsequent to hts departure

from the United States.” Ibid. (emphasis added). This

regulatory post-departure bar mirrored the then-

governing statutory limit on judicial review, which

provided that “[a]ln order of deportation or of

* The regulations governing motiens to reopen and recon-

sider were originally codified at 8 C.F.R. § 3.2. The regulations

were re-codified in 2003 pursuant to the Homeland Security Act

of 2002, as amended, which transferred the functions of the

former Immigration and Naturalization Service to the Depart-

ment of Homeland Security, while retaining the Executive Office

of Immigration Review in the Department. of Justice. 68 Fed.

Reg. 9824, 9826 (Feb. 28, 2003).

exclusion shall not be reviewed by any court if the

alien ... has departed from the United States after

issuance of the order.” 8 U.S.C. § 1105a(c) (1962).

Until the repeal of this post-departure bar to federal

court review in 1996, most aliens received an auto-

matic stay of their removal order pending resolution

of any appeals to prevent the court from being

divested of jurisdiction by the alien’s departure from

the United States. See § 1105a(a\(3) (1994). Such a

stay also preserved the alien’s right to file a motion to

reopen or reconsider an IJ or BIA decision.

2. What began as a regulatory privilege became

a statutory right with the passage of the [legal

Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. No. 104—208, 110 Stat.

3009. Among its many reforms, IIRIRA repealed the

statutory prohibition on judicial review of removal

orders when an alien has departed the country.

IIRIRA also, for the first time, expressly provided

aliens a specific statutory right to file one motion to

reconsider and one motion to reopen an order of

deportation within 90 days of the entry of the final

administrative order of removal. See 8 U.S.C.

§ 1229a(cX 6A) (“The alien may file one motion to

reconsider a decision that the alien is removable from

the United States.”); id. § 1229a(c\(7A) (“An alien

may file one motion to reopen proceedings. .. .”). The

new statute does not include an express _ post-

departure bar on the now statutorily-authorized mo-

tions to reopen (or reconsider) deportation proceed-

ings before the IJ (or BEA).

8

When the Attorney General promulgated imple-

menting regulations for ITRIRA in March 1997,

however, she retained without change the pre-JTRIRA

bar on post-departure motions to reopen and to recon-

sider. The current regulation, 8 C.F-R. § 1003.23(b)(1),

which is substantially identical to the one in force

before the enactment of IJRIRA, prohibits the IJ from

considering motions to reopen removal proceedings

filed by any alien who has departed the United

States, either voluntarily or involuntarily. It reads:

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 ex-

clusion proceedings subsequent to his or her

departure from the United States. Any de-

parture from the United States, including

the deportation or removal of a person who is

the subject of exclusion, deportation, or re-

moval proceedings, occurring after the filing

of a motion to reopen or a motion to re-

consider shall constitute a withdrawal of

such motion.

A second regulation, 8 C.F.R. § 1003.2(d), contains

virtually identical language governing motions to

reopen or reconsider filed before the BIA."

* 8 C.FR. § 1003.2(d) includes a post-departure bar for

motions to reopen or reconsider filed with the Board of Immi-

gration Appeals. It reads, in relevant part:

(d) Departure, deportation, or removal. 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

(Continued on following page)

9

B. Mr. Martin Rosillo-Puga.

Petitioner Mr. Martin Rosillo-Puga, a native and

citizen of Mexico, married Chiara Rosillo, a United

States citizen, in 1994. (R. 000030). On July 18, 1995,

Mr. Rosillo became a conditional legal permanent

resident of the United States after the filing by his

wife of an immediate relative petition. (R. 000030;

000101). Mr. Rosillo and Chiara have now been

married for sixteen (16) years and have two minor

children who are also United States citizens,

Alejandra and Martin, Jr. (R. 000030). During Mr.

Rosillo’s residency in the United States, he provided

his family with necessary emotional, physical, and

financial support. (R. 000030-31). Mr. Rosillo was

gainfully employed as a landscaper and trained to be

a heavy equipment operator. (R. 000030). Mr. Rosillo’s

wife, Chiara, suffers from a number of serious medi-

cal conditions, and depended on Mr. Rosillo’s financial

support to provide for their family. (R. 000031).

exclusion, deportation, or removal proceedings subse-

quent to his or her departure from the United States.

Any departure from the United States, including the

deportation or removal of a person who is the subject

of exclusion, deportation, or removal proceedings, oc-

curring after the filing of a motion to reopen or a

motion to reconsider, shall constitute a withdrawal of

such motion.

10

C. Removal Proceedings.

On August 14, 2003, the Department of

Homeland Security commenced removal proceedings

against Mr. Rosillo by filing a Notice to Appear before

the Immigration Court. (R. 000101-02). Mr. Rosillo

was unable to obtain counsel for the immigration

court proceedings and appeared pro se. (R. 000030).

Mr. Rosillo did not believe that he could challenge the

charges alleged in the immigration proceedings. (/d.).

On August 18, 2003, Mr. Rosillo was ordered removed

from the United States to his native country of

Mexico on the basis that his 1997 conviction for

misdemeanor battery, pursuant to section 35-42-1 of

the Indiana Code, constituted an aggravated felony

under 8 U.S.C. § 1227(a)(2A)(ii1) and a removable

offense under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (E)(i).

(R. 000099; 000101-02). Mr. Rosillo had no money to

hire a lawyer to appeal the removal order and was

subsequently removed. (R. 000030). He was physi-

cally removed to Mexico and resides in La Calera,

a small village consisting of approximately 300

families. (/d.).

Three months after Mr. Rosillo’s removal, the

Seventh Circuit held that a conviction under the

same Indiana battery statute pursuant to which Mr.

Rosillo was convicted, did not constitute an aggra-

vated felony or a crime of violence which subjected

Mr. Rosillo to removal. See Flores v. Ashcroft, 350

F.3d 666 (7th Cir. 2003). Mr. Rosillo, as noted, did not

have counsel during his removal proceedings or im-

mediately after his removal, and was thus unaware

11

that his removal order was based on an erroneous

interpretation of statutory language. (See R. 000030-

31). Moreover, his home in the small Mexican village

of La Calera did not have a telephone or computer by

which Mr. Rosillo could have discovered the error.

(R. 000030). And, Mr. Rosillo did not have access

to any other sources of information about legal de-

velopments in the United States. (R. 000030-31). He

discovered that his conviction was based on the

erroneous interpretation of section 35-42-2-1 only

after his wife found volunteer lawyers to assist Mr.

Rosillo at the Post-Deportation Human Rights Project

at Boston College Law School. (R. 000031). Upon

learning of the error and with the assistance of coun-

sel for the first time, Mr. Rosillo promptly initiated

proceedings to reconsider or reopen his removal

proceedings. (R. 000068-98).

D. Motion To Reconsider Or Reopen Kemoval

Proceedings And Appeal To BIA.

On May 7, 2007, with the assistance of counsel,

Mr. Rosillo filed a Motion To Reconsider or Reopen

Proceedings before the Immigration Judge on the

ground that his battery conviction is not a crime

of violence under 18 U.S.C. § 16, and therefore not

a crime of domestic violence under 8 U.S.C.

§ 1227(a)(2)(E)i) nor an aggravated felony under 8

U.S.C. § 1227(aX2) AG). (R. 000063-000070). Be-

cause Mr. Rosillo did not discover the error in law

prior to the 90-day limitation for filing a motion to

reopen, Mr. Rosillo requested that the IJ exercise sua

12

sponte jurisdiction under 8 C.F.R. § 1003.23(b)(1) to

reopen or reconsider the removal order based upon

the exceptional circumstance of a change in the law.

(R. 000071-74). Pursuant to 8 C.F.R. § 1003.23(b), the

IJ “may upon his or her own motion at any time, or

upon motion of... the alien, reopen or reconsider any

case in which he or she has made a decision, unless

jurisdiction is vested with the Board of Immigration

Appeals.”

In an opinion dated May 24, 2007, the IJ

explained that in most circumstances he had general

discretion to reopen and reconsider proceedings pur-

suant to 8 C.F.R. § 1003.23(b)(1). (R. 000054). How-

ever, the IJ concluded that he was constrained from

exercising his general discretion to reopen and re-

consider proceedings due to the regulatory post-

departure bar, 8 C.F.R. § 1003.23(b)(1). Ud.). The IJ

denied Mr. Rosillo’s motion to reopen or reconsider on

the sole ground that the post-departure bar precluded

the exercise of his sua sponte jurisdiction. (R.

000054).

Mr. Rosillo subsequently appealed the IJ’s de-

cision to the Board of Immigration Appeals. (R.

000011). Mr. Rosillo argued that the regulatory post-

departure bar did not preclude the IJ from exercising

his sua sponte jurisdiction to reopen or reconsider his

removal proceedings because the regulatory post-

departure bar in 8 C.F.R. § 1003.23(b)(1) is contrary

to the Illegal Immigration Reform and Immigrant

Responsibility Act, 8 U.S.C. § 1229a(c)(6), which

codifies the right to file a motion to reopen without

13

imposing any post-departure bar. (R. 000020). The

BIA, however, affirmed the IJ’s order on the same

ground. (R. 000002). The BIA concluded that the reg-

ulatory post-departure bar in C.F.R. § 1003.23(b)(1)

precluded the IJ from exercising jurisdiction over a

motion to reopen after the alien departs from the

United States. (R. 000002).

E. Tenth Circuit Decision.

Mr. Rosillo petitioned the Tenth Circuit to re-

verse the BIA decision. Mr. Rosillo argued that the IJ

was not precluded from exercising his discretion to

reopen or reconsider under 8 C.F.R. § 1003.23(b)(1),

because the regulation is an invalid exercise of the

Attorney General’s authority. The regulation directly

conflicts with the express language of 8 U.S.C.

§§ 1229a(c)(6)(A) and (7)(A), which grant aliens the

right to file one motion to reconsider and one motion

to reopen proceedings irrespective of the alien’s geo-

graphic location. A divided Court of Appeals affirmed

the BIA’s ruling on the applicability of the post-

departure bar and denied Mr. Rosillo’s petition for

review. App., infra, 21, 31.

The court recognized that the Fourth Circuit

concluded that 8 U.S.C. § 1229(a)(7)(A) “clearly and

unambiguously grants an alien the right to file one

motion to reopen, regardless of whether he is present

in the United States when the motion is filed.” Jd. at

14 (quoting William v. Gonzales, 499 F.3d 329, 334

(4th Cir. 2007)). The court, however, declined to follow

14

the William majority, and instead relied on the lone

dissent in William, upholding the regulatory post-

departure bar as valid under the statutes in question.

As an alternative basis for denial of the petition for

review, the Tenth Circuit held that Mr. Rosillo’s

petition was untimely. Jd. at 24-25. The Tenth Circuit

denied the petition on the ground of timeliness

despite the fact that neither the IJ nor the BIA

articulated timeliness as a basis for denial in their

orders.

REASONS FOR GRANTING THE PETITION

As this case demonstrates, the availability of a

motion to reopen or reconsider is a matter of more

than theoretical or technical importance. As is the

case here, such a motion may be the only avenue for

relief from the erroneous removal of an alien (here, a

Jong-time resident) from the United States. Congress

accordingly guaranteed aliens the right to make such

motions, whether or not they have already departed

the United States; that guarantee was an essential

component of Congress’ decision also to expedite the

removal of certain aliens from the country. The Tenth

Circuit’s decision in this case, upholding a decision

that bars aliens from filing such motions after their

departure, cannot be reconciled with the statutory

language and congressional purpose. Because that

decision also cements an acknowledged conflict in the

circuits, further review is in order.

L5

The Courts Of Appeals Are Divided Over

The Validity Of 8 C.F.R. § 1003.23(b) And

The Companion Regulation, 8 C.F.R.

§ 1003.2(d).

‘lo begin with, there is a clear and acknowledged

conflict between the Fourth and Tenth Circuits (both

of which were themselves divided) over the question

that this case presents — whether the regulatory post-

departure bar on motions to reopen o> reconsider

before the BIA or an IJ is consistent with the

controlling statute. But that is not the full extent of

the confusion: four additional circuits have considered

the treatment of post-departure motions to reopen

or reconsider and have taken widely divergent ap-

proaches. As a result, identically situated persons

face different rules regarding post-departure motions

to reopen or reconsider in different parts of the

country. Because uniformity in this area of the law is

essential, further review is warranted for this reason

alone.

l. As the ‘Tenth Circuit panel in this case

acknowledged, a divided Fourth Circuit panel has

held the regulation invalid under JIRIRA because

Ҥ 1229a(c)(7)(A) unambiguously provides an alien

with the right to file one motion to reopen, regardless

of whether he is within or without the country.”

William, 499 F.3d at 332. The William majority ex-

plained that the statutory language “speak[s] to the

filing of motions to reopen by aliens outside the

country; it does so because they are a subset of the

group (i.e. ‘alien|s|’) which it vests with the right to

l6

file these motions.” /bid. It also reasoned that “the

fact that Congress provided for |lother| specific

limitations on the mnght to file a motion to reopen

bolsters the conclusion that § 1229a(c)(7)(A) cannot

be read to except from its terms those aliens who

have departed the country.” /d. at 333. And the

William majority noted that Congress did include a

physical presence requirement in a different subsec

tion of the statute dealing with aliens who apply for

relief from removal as victims of domestic violence

(bid.), concluding that it “must draw a ‘negative

inference’ from Congress’ exclusion of the physical

presence requirement from [§ 1229a(c)(7)(A)|.” /brd.

The William decision speaks directly to the question

presented in this case, and, insofar as is relevant

here, William and petitioner are identically situated.

On the other hand, the Tenth Circuit expressly

rejected the Fourth Circuit’s conclusion. The majority

“apree|d|] with the [William] dissent’s position and

conclude|d] that 8 C.F.R. § 1003.23(b)(1) Cike 8 C.E-R

§ 1003.2(d)) is a valid exercise of the Attorney General’s

Conpressionally delegated rulemaking authority, and

does not contravene 8 U.S.C. §&§ 1229a(c)\(6)(A) or

(7) A).” App., infra, 21. The majority believed that

“the statute is simply silent on the issue of whether it

meant to repeal the post-departure bars” and that

“the agency’s answer 1s based on a permissible con

struction of the statute.” /d. at 21. In his lengthy dis

sent, Judge Lucero agreed with the Willtam majority

that “the pertinent provisions of § 1229a(c)(6)(A) and

(7(A) unambiguously guarantee every alien the right

to file one motion to reconsider removability and one

motion to reopen removal proceedings, regardless of

whether the alien has departed from the United

States.” /d. at 35

The Tenth Circuit expressly rejected the Fourth

Circuit's conclusion and held the regulation valid, not

only in the present case but also in Mendiola

Holder, 585 F.3d 1303 (10th Cir. 2009) and Silerio

Nunez v. Holder, No. 08-9556, 2009 WL 4755726

(10th Cir. Dec. 14, 2009).° The Tenth Circuit panels in

Menditola and Silerto-Nunez, bound by the decision in

this case, held that the reyvulation is) valid) under

IIRIRA. See Silerio Nunez, 2009 WL 4755726, at *2.,

Mendiola, 585 F.3d at 1310

There is no denying this conflict. It has been

repeatedly acknowledged by the Tenth Circuit: and

noted by the Ninth. See Coyt vo. Holder, 593 F.3d 902,

907 0.3 (9th Cir. 2010) (“Those circuits are split. The

Fourth Circuit has invalidated & C.F. R. §& 1003.2(d) in

its entirety. The Tenth Circuit upheld both [8% C.EFR

§ 1003.2(d) and § 10038.23(0b)01)).7) Gnternal citations

omitted)

2 While their analyses differ in some parts

ulars from those of the Fourth and Tenth Circuit

four additional courts of appeals also have considered

Like thas CASE Srlerto- Nun adadre rc ie oe |.

§ 10045.24(bx 1)'s post-departure bar to review by an LJ William

and Mendtola discuss the tissue in the context of & CLER

§ 1003.2(d)'s post-departure bur to review by the BIA

18

the treatment of post-departure motions to reopen or

reconsider and have adopted widely divergent rules.”

Fike the Tenth Circuit, the First, Fifth, and Sixth

Circuits have held, even after the enactment of

IIRIRA, that 8 C.F.R. § 1003.2(d) and § 1003.23(b)\(1)

bar review of post-departure motions to reopen or

reconsider. In contrast, the Ninth Circuit, like the

Fourth, has held that an alien may file a motion to

reopen or reconsider after departing the United

States, unless the alien departs while he or she is the

subject of removal proceedings. Therefore, an indi-

vidual identically situated to petitioner may file a mo-

tion to reopen or reconsider in the Fourth and Ninth

Circuits but not in the First, Fifth, Sixth, and Tenth.

Both the Fifth and Sixth Circuits have enforced

the regulatory post-departure bar, post-ITRIRA. In

Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir.

2003), the Fifth Circuit applied the regulation with-

out mentioning ITRIRA. The court subsequently de-

clined to comment on the merits of William because it

declared itself bound by its decision. Castillo-Perales

v. Mukasey, 298 F. App’x 366, 369 (5th Cir. 2008).*

* The Seventh Circuit has noted but declined to reach the

question of whether the regulatory post-departure bar remains

valid under IITRIRA. See Munoz De Real v. Holder, 595 F.3d 747,

749 (7th Cir. 2010).

* In Ovalles v. Holder, 577 F.3d 288, 295 (5th Cir. 2009), the

Fifth Circuit did not reach the question of whether IIRIRA

precludes the regulatory post-departure bar to review of motions

to reopen or reconsider because petitioner did not file his motion

to reopen within the statutory deadline.

19

Similarly, without considering any IIRIRA-related

arguments, the Sixth Circuit has stated that the

regulation precludes an alien from reopening his or

her removal proceedings once the alien has left the

country. See Mansour v. Gonzales, 470 F.3d 1194,

1198 (6th Cir. 2006).

The First Circuit likewise has held that 8 C.F.R.

§ 1003.23(b)(1)’s post-departure bar is valid notwith-

standing the enactment of IIRIRA, specifically con-

cluding that the regulation had not been displaced by

IIRIRA’s repeal of 8 U.S.C. § 1105a(c), which read:

“An order of deportation ... shall not be reviewed by

any court if the alien ... has departed from the

United States after the issuance of the order.” See

Pena-Muriel v. Gonzales, 489 F.3d 438, 441-442 (1st

Cir. 2007). Petitioner thus would not be able to re-

open his removal proceedings under the First Circuit

rule.

The Ninth Circuit, on the other hand, has held

that an alien may file a motion to reopen or re-

consider even after being deported because the post-

departure bar “is phrased in the present tense and so

by its terms applies only to a person who departs the

United States while he or she ‘is the subject of

removal ... proceedings.’” Lin v. Gonzales, 473 F.3d

979, 982 (9th Cir. 2007). Because petitioner departed

the United States only after his removal proceedings

were completed, the Ninth Circuit would find that the

regulatory post-departure bar does not apply to him

and that he is therefore able to reopen his remova!

proceedings.

20

The upshot of these conflicting approaches is

intolerable inconsistency: An alien in precisely the

same circumstances as petitioner would have been

permitted to seek relief in the Fourth and Ninth

Circuits, but not in the First, Fifth, Sixth, and Tenth.

This Court’s intervention to clarify the law accord-

ingly is essential.

II. The Issue Presented Here Is A Recurring

One Of Substantial Practical Importance.

This conflict involves an issue of significant

practical importance. Deportation is a severe penalty.

Padilla v. Kentucky, __ «S. Ct. _ _, 2010 WL 1222274,

at *6 (March 31, 2010). As this Court recently ack-

nowledged, “[tlhe motion to reopen is an important

safeguard intended to ensure a proper and lawful

disposition of immigration proceedings.” Nken v.

Holder, 130 S. Ct. 827, 834 (2010) (quoting Dada v.

Mukasey, 128 S. Ct. 2307, 2317-2319 (2008)) (internal

citations omitted). For a significant number of aliens,

however, access to this crucial statutory right, as well

as the right to file a motion to reconsider, depends

solely on the geography of their appeal: The current

conflict implicates six circuits that together handled

over 62% of BIA appeals filed in 2009. Administrative

Office of the U.S. Courts, 2009 Annual Repert of the

Director: Judicial Business of the U.S. Courts 94

tb].B-3: (2009). Furthermore, the split stems, in part,

from disagreement over the meaning of this Court’s

recent treatment of the motions to reopen in Dada v.

21

Mukasey, 128 S. Ct. 2307 (2008), which requires this

,

}

.

Court’s resolution.

A. The Practical Importance Of Motions

To Reopen And Reconsider Counsels

In Favor Of Review.

The practical importance of the statutory right

itself counsels in favor of review. Motions to reopen

and reconsider are a vital safeguard in a system that

has been modified both to establish procedures lead-

ing to swift removal of aliens and to reduce the

avenues for discretionary relief from removal. The

1990s saw a range of statutory and administrative

changes to the immigration system that greatly

expanded the number of aliens eligible for removal,

largely by expanding the definition of aggravated fel-

ony to include a wider variety of crimes. “While once

there was only a narrow class of deportable offenses

and judges wielded broad discretionary authority to

prevent deportation, immigration reforms over time

have expanded the class of deportable offenses” and

“the ‘drastic measure’ of deportation or removal... is

now virtually inevitable for a vast number of non-

citizens convicted of crimes.” Padilla, 2010 WL

1222274, at *4. See also, Daniel Kanstroom, Deporta-

tion, Social Control, and Puntshment: Some Thoughts

About Why Hard Laws Make Bad Cases, 113 Harvard

Law Review 1890-1935 (2000); Diana R. Podgorny,

Rethinking the Increased Focus on Penal Measures

tn Immigration Law as Reflected in the Expansion of

the “Aggravated Felony” Concept, 99 J. Crim. L. &

22

Criminology 287, 295-296 (2009); see also Maureen A.

Sweeney, Fact or Fiction: The Legal Construction of

Immigration Removal for Crimes, 27 Yale J. on Reg.

47, 66-67 (2010). This is particularly so given the

complexity of immigration procedures and the lack of

access to legal counsel during immigration proceed-

ings. See Ardestani v. INS, 502 U.S. 129, 112 S. Ct.

515 (1991); Escobar Ruiz v. INS, 838 F.2d 1020, 1026

(9th Cir. 1988) (“deportation hearings are difficult for

aliens to fully comprehend, let alone conduct, and

individuals subject to such proceedings frequently

require the assistance of counsel.”).

fet, as more aliens became subject to removal,

the system increasingly denies them access to dis-

cretionary relief. IIRIRA, for example, amended the

INA to eliminate § 212(c) waivers of removal — a form

of discretionary relief in which a court considered a

range of equitable factors counseling against removal

— replacing it with a more limited form of relief

explicitly denied to aggravated felons. I.N.S. v. St.

Cyr, 533 U.S. 289, 294-97 (2001).

These changes have led to the removal of ever-

increasing numbers of aliens.’ The number of noncitizens

’ The increasing rate at which immigrants are being de-

ported has incited some harsh criticism for the immigration

adjudication system both from the bench and the immigration

bar. In a 2005 opinion, Judge Richard Posner opined that the

state of the immigration adjudication system “hal[d] fallen below

the minimum standards of legal justice[.]” Benslimane v.

Gonzales, 430 F.3d 828, 830 (7th Cir. 2005). Courts of appeal and

commentators alike have complained of overburdened, biased,

(Continued on following page)

23

facing removal orders increased dramatically with

the enactment of IIRIRA, rising over 64% from 1996

to 1997 — twice as much as it had in any of the

previous five years. Office of Immigration Statistics,

U.S. Dep’t of Homeland Sec., Yearbook of Immigra-

tion Statistics: 2008, at 95 tbl.36 (2009). Since 1997,

that number has grown three-fold, with 358,886

aliens removed in 2008 alone (the latest year for

which statistics are available). /bid.

But resolution of these cases is not immune from

error, due particularly to the BIA’s increased use of

summary procedures to deal with its “staggering”

case backlog. John R.B. Palmer et al., Why Are So

Many People Challenging Board of Immigration Ap-

peals Decisions in Federal Court? An Empirical Anal-

ysis of the Recent Surge in Petitions for Review, 20

Geo. Immigr. L.J. 1, 23 & 29-31 (2005). Under the

current rules, a majority of cases have been referred

tu a single Board member for review (instead of a

panel) and Board members are _ permitted to

and unprofessional IJs and poor legal analysis in immigration

decisions. See, e.g., Wang v. Att’y General of U.S., 423 F.3d 260,

270 (38d Cir. 2005) (deeming an IJ opinion to be “highly

improper” due to its contemptuous tone and the IJ’s reliance on

consideration of personal issues irrelevant to the merits of the

claim); Jill E. Family, A Broader View of the Immigration

Adjudication Problem, 23 Geo. Immigr. L.J. 595, 598-610 (noting

high IJ caseloads, lack of resources, politicized hiring, and sub-

par work product). See also Jaya Ramyi-Nogales et al., Refuge

Roulette: Disparities tn Asylum Adjudication, 60 Stan. Law. R.

295 (2007) (documenting inconsistencies in asylum grant rates

across immigration judges).

24

summarily dispose of cases without basis in law or

fact without issuing an opinion. 64 Fed. Reg. 56135

(Oct. 18, 1999) (establishing streamlined procedure);

67 Fed. Reg. 54878 (Aug. 26, 2002) (expanding the

procedures to be the “dominant method of adjudica-

tion for the large majority of cases before the Board”).

The “alarming frequency” of ineffective assis-

tance of counsel in the immigration context, (Aris v.

Mukasey, 517 F.3d 595, 600 (2d Cir. 2008)), as well as

the lack of access to counsel for many aliens subject

to removal proceedings, is another major source of

error. Noncitizens without access to counsel, par-

ticularly those deported to their home countries, often

have little access to information about legal develop-

ments in the United States making it impossible to

challenge deportation orders by filing a timely motion

to reopen deportation proceedings. Accordingly, the IJ

and BIA’s authority to sua sponte reopen immigration

proceedings is often the only vehicle by which a

noncitizen can seek review of the “drastic” penalty of

deportation. Indeed, the bright line post-departure

bar enacted by the agency also raises serious due

process concerns. Zadvydas v. Davis, 533 U.S. 678

(2001); Boumediene v. Bush, 553 U.S. 723 (2008).

Courts and federal agencies have long held a “full

panoply of powers which they may invoke sua

sponte.” Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir.

2001) (recognizing the power of BIA to act sua sponte

to reopen immigration proceedings). In this context,

the IJ is authorized “upon his or her own motion at

any time, or upon motion of the Service or the alien,

25

[to] reopen or reconsider any case in which he or she

has made a decision, unless jurisdiction is vested

with the Board of Immigration Appeals.” 8 C.F.R.

§ 1003.23. Similarly, the BIA may also “at any time

reopen or reconsider on its own motion any case in

which it has rendered a decision.” 8 C.FE-.R. § 1003.2.

The IJ and BIJA’s sua sponte authority to reopen

immigration proceedings is consistent with the broad

discretion granted the agencies to grant or deny

motions to reopen. Kucana v. Holder, 130 S. Ct. 877,

838 (2010) (noting discretion conferred by the Attor-

ney General to consider motions to reopen).

The IJ and BIA’s sua sponte authority is essential

because exceptional situations occasionally arise after

entry of an order of removal that undermine the very

basis of the removal. See Toledo-Hernandez ov.

Mukasey, 521 F.3d 332, 335 (5th Cir. 2008); In re G-D,

22 I&N Dec. 1132 (BIA 1999). To be sure, exceptional

situations are rare. The IJ and BIA exercise their

sua sponte authority “sparingly, treating it not as a

general remedy for any hardships created _ by

enforcement of the time and number limits in the

motions regulations, but as an extraordinary remedy

reserved for truly exceptional situations.” Jn re G-D,

22 I&N Dec. 1132, 1133-34 (BIA 1999). However,

there are occasions where a significant change in the

law may undermine the basis of removal such that

the removal might never have occurred in the face of

the change. See Jn re G-D, 22 I&N Dec. at 11385. But,

rarely do such changes in the law occur within the 90-

day limitation period to reopen immigration proceed-

ings. See, e.g., In re GCL, 23 I&N Dec. 359 (BIA 2002)

26

(reopening asylum proceedings finalized in 1995 after

1996 change in law regarding the definition of a

refugee); In re XGW, 22 I&N Dec. 71 (BIA 1998) (re-

opening asylum proceedings after change in the law

that occurred four months after the denial of appli-

cation for asylum). Or, rarely are noncitizens who are

often without access to legal counsel, aware of such

significant legal developments. Consequently, the IJ

and BIA’s sua sponte authority to reopen serves the

interest of justice by providing often the only remedy

for noncitizens seeking review of deportation orders

subject to new changes in the law.

In this context, motions to reopen and reconsider

serve a necessary and important checking function on

removal proceedings. They are, in many situations,

an alien’s only practical option for vindicating his or

her due process rights, raising previously unavailable

evidence or a change in the law that directly bears

upon — or may completely preclude — his removal, or

correcting the mistakes of an ineffective attorney or

mistaken immigration judge.”

* Over 12,000 such motions were filed with immigration

judges in 2008. Office of Planning, Analysis & Technology,

Executive Office for Immigration Review, FY 2009 Statistical

Yearbook at B7 fig.2 (March 2009). In the same year, the BIA

received 7,823 motions to reopen (not including IJ appeals). Jd.

at T2 tbl.16.

27

B. Court Of Appeals Confusion Over

Dada v. Mukasey Requires Resolution

By This Court.

Apart from the practical importance of the

statutory right at stake, the specific question of

whether the post-departure bar is valid requires this

Court’s resolution because it stems, in part, from

inconsistent interpretations of this Court’s recent

decision in Dada v. Mukasey, 128 S. Ct. 2307 (2008).

In Dada, the Court affirmed the statutory right to

pursue a motion to reopen and held that, in order to

“safeguard” that right, an alien must be permitted to

withdraw a request for voluntary departure that, if

granted, would trigger the §§ 1003.23(b)(1) and

1003.2(d) departure bars and preclude decision of the

motion. 128 S.Ct. at 2319. (The question of the

validity of the post-departure bar was not before the

Court. Id. at 2320.)

Although the Fourth Circuit’s William decision

predates Dada, the panel majority in the present

case, which relies on the William dissent, cites Dada

for support. The majority relies on Dada for the

proposition that “[t]he very problem identified by the

Supreme Court in Dada would not exist but for the

validity of the regulation challenged here — the alien’s

motion to reopen would not be withdrawn but for the

regulation,” App., infra, 12, n. 3, although the

majority conceded that “neither party in Dada

specifically challenged the validity of the regulations

at issue,” id. at 13, n. 3. The dissent, in sharp

contrast, believed that Dada “all but compels the

28

conclusion” that IZRIRA trumps the departure bar

because Dada recognized that “an alien must be

allowed to file one motion to reopen” and “an alien

cannot be forced by regulation to forfeit a motion

guaranteed by statute.” /d. at 51-52 (Lucero, J.,

dissenting). This Court should take this opportunity

to resolve this substantial divergence of inter-

pretation.

Congress and the Attorney General have had

over a decade to address the discrepancy between the

unequivocal statutory rights granted by IIRIRA and

the post-departure bar in § 1003.23(b)(1). They have

failed to do so, leaving the courts of appeals with no

guidance and leading to the current intractable con-

flict. The issue presented in this case is likely to arise

in many future IJ proceedings and involves an im-

portant source of administrative review in a system

where it is sorely needed. The Court’s guidance is

therefore necessary to bring the statutory and regu-

latory treatment of these motions into alignment.

lif. The Tenth Circuit’s Decision Was Wrong.

The need for review is especially acute here

because the Tenth Circuit’s decision below is wrong.

The plain language and structure of IIRIRA show

that Congress meant to displace the departure bar,

and this interpretation is consistent with the broader

congressional purpose. The evolution of immigration

law has decoupled physical presence from jurisdic-

tion, making an alien’s physical presence increasingly

29

irrelevant to the jurisdiction of the court reviewing

his or her case. The departure bar is a holdover that

Congress intended to be set aside. The logic of the

current system of judicial review compels this con

clusion.

A. The Statutory Language Is Plain And

Unambiguous.

Congress provided in 8 U.S.C. § 1229a(c)(7)(A)

that “/ajJn alien may file one motion to reopen any

proceeding] | under this section.” Similarly, § 1229a(cX6)A)

provides “/t/he alien may file one motion to reconsider

.” (emphasis added). The language of these provi-

sions is plain and unequivocal: there is no exception

for aliens who have departed the United States. “We

‘must presume that [the] legislature says in a statute

what if means and means in a statute what it says

there’” (Dodd v. United States, 545 U.S. 343, 357

(2005) ((alteration in original) (quoting Conn. Nat’

Bank v. Germain, 503 U.S. 249 (1992))); all aliens,

regardless of location, are treated alike and have a

right to file a motion to reopen. See App., infra, 35

(Lucero, J., dissenting) (“A plain reading of 8 U.S.C.

§§ 1229a(c)(6)(A) and (7)(A) comfortably occupies al]

the space on the issue before us and leaves any

potential for valid promulgation of the challenged

portion of 8 C.F.R. § 1003.23(b)(1) outside in the bitter

cold.”); William, 499 F.3d at 332 (“We find that

§ 1229a(c)7A) unambiguously provides an alien

with the right to file one motion to reopen, regardless

of whether he is within or without the country.”);

Azarte v. Ashcroft, 394 E3d 1278. 1285-86 (9th Ci

2005) (“With re spect to motions lo reopen Con

gress. language in IIRIRA is clear and unambig

uous.”). The Attorney Genera! may not rewrite an Act

of Congress by regulating the exclusion of a subclas;:

of aliens that Congress unambiguously intended to

reach. Chevron U.S.A., Inc. v. Natural Resources De

fense Council, Inc., 467 U.S. 837, 842-43 (1984)

3. The Structure Of The Statute Confirms

Congress’ Intent For The Reach Of

§§ 1229a(c)(6)(A) And 7(A) To Be Suffi-

ciently Kroad ‘To Include Departed

Aliens.

A review of the statute as a whole indicates that

had Congress intended to exclude such a significant

class of aliens from relief prescribed by 8&8 U.S.C

S$ 1229a(6)(A) and 7(A), it most certainly would have

said so

Indeed

distinguishes between aliens within and without the

, another subsection of 8&8 U.S.C. § 1229a

United States, providing that the usual 90-day time

limit for a motion to reopen docs not apply to a

battered spouse, child, or parent who “is physically

present in the United States at the time of filing the

motion.” § 1229a(c)(7)(C)ivyX TV). Congress therefore

plainly knew how to limit certain forms of relief to

aliens currently in the United States, and it chose not

to impose such a limit in §§ 1229a(c)\(6)(A) and (7)(A)

If physical presence in the United States were

required for any alien to file a motion to reopen, the

language in § 1229a(c)(7)Gv)TV) requiring specified

aliens LO he “physically present would he Upper

fluou:

The statute also includes several express limita

tions on motions to reopen, including: those on timelh

ness, && 1Z29a(cK6)B), (7)C), content, && 1229a(cWKGKC)

(7)(B), and numerosity, $8 1229a(c (6) A), (7)(A). But

§ 1229a includes no limitation on peography. When

Conyress makes Lhe SCOpPe ol its intention clears

through limitations and exceptions, the lack of othe:

limitations and exceptions should be read to indicat

Conyress’ decision nmol to include those limitation:

and exceptions. United States v. Johnson, 529 US

53, 58 (2000) (“When Congress provides exceptions in

a stutute, it does not follow that courts have uuthority

to create others. The proper inference is that Con

gress considered the issue of exceptions and, in the

end, limited the statute to the ones set forth.”). Thu

it is properly inferred that Conpre: intentionally

eschewed a geographical limitation on aliens filing

movulions LO reopen

Adopting the reasoning of the Willtamm dissent, the ma

jority in the present case opined that § 1299ale7)(CoVITV)’:

physical-presence requirement was not added until 2006 and |

therefore unhelpful in discerning what Conpress intended when

it enacted IIRIRA in 1996. App. infra, 17, 21. But iff the

majority's reading were correct if there is a physical presence

requirement implicit in §$ L229aleK 6A) and (7)(A), adding

the physical-presence language in) Z006 would have beer

unnecessary. That language presumably was added because

S§ 1229a(cKh6X A) and (7X A) had no such requirement. /d. at 1165-66

o2

C. Legislative History Confirms Congress’

Intent To Include Even Those Aliens

Who Have Departed.

The legislative background of IIRIRA supports

the conclusion that Congress meant what it said —

any alien who has been determined removable may

file a motion to reopen or reconsider. Congress ex-

pressly intended IIRIRA “to make it easier to deny

admission to inadmissible aliens and easier to remove

deportable aliens from the United States.” H.R. Rep.

No. 104-469, pt. 1, at 157 (1996). Needless to say,

allowing aliens to file motions after they have been

removed is fully consistent with — and may even

facilitate — this goal. One of Congress’ primary con-

cerns in enacting IIRIRA was the amount of time it

took to deport aliens who had committed crimes.’

10 . , , . ° Ps .

See Members’ Forum on Immigration: Hearing Before t/

Subcomm. on Immigration and Claims of the H. Comm. on the

Judiciary, 104th Cong. 38 (1995) (statement of Rep. Susan

Molinari) (“The criminal alien population, which has an ex.

tremely high rate of recidivism, can be curbed by simply improv

ing deportation procedures, thus saving our local communities

millions of dollars by providing them with much more safety. It

also frees up desperately needed jail space.”); Removal of

Criminal and Illegal Aliens: Hearing Before the Subcom. on

Immigration and Claims of the H. Comm. on the Judiciary,

104th Cong. 15 (1995) (statement of T. Alexander Aleinikoff,

General Counsel, Immigration and Naturalization Service)

(“The administration is committed to ensuring that aliens in

deportation proceedings are afforded appropriate due process;

however, the availability of multiple layers of judicial review has

frustrated the timely removal of deportable aliens.”); Proposals

for Immigration Reform: Hearing Before the Subcomm. on

Immigration and Refugee Affairs of the S. Comm. on the

(Continued on following page)

This concern with efficient removal, however, is a

“non-sequitur” with respect to allowing aliens already

outside of the country to file motions to reopen and

reconsider. See App., infra, 48-49 (Lucero, J., dissent-

ing). As these aliens have already left the country

prior to filing, there is no danger that they will use

motions to reopen or reconsider as a “means of delay-

ing removal.” Jd. at 49. Indeed, if these filings were

barred, Congress would be creating a disincentive for

aliens to leave the country, leading them to withdraw

motions for voluntary departure or to refuse to

comply with removal orders, adding to the original

problem. See Dada, 128 S. Ct. at 2320.

Nor would allowing post-departure motions re-

sult in an unmanageable increase in filings. IIRIRA

still “limits in significant ways the availability of the

motion to reopen,” Dada, 128 S.Ct. at 2316, most

importantly through filing deadlines and numerical

limits. These procedural limits greatly restrict the

number of aliens eligible to file such motions, absent

grounds (such as exceptional circumstances or in

effective assistance of counsel) for equitable tolling or

sua sponte reopening or reconsideration. Moreover, a

this Court has repeatedly recognized, the immigra

tion authorities retain considerable discretion over

Judiciary, 103rd Cong. 40 (1994) (statement of Barbara Jordan,

Chair, Comm’n on Immigration Reform) (“The top priority of

interior enforcement strategies should be the removal of

deportable criminal aliens from the U.S. in such a way that the

potential for their retura to the U.S. will be minimized.”)

34

whether to grant a motion to reopen or reconsider.

See, e.g., INS v. Abudu, 484 U.S. 94 (1988). The BIA’s

streamlined summary procedures allow the Board to

easily dispose of facially invalid or frivolous motions.

And, of course, “immigration enforcement obligations

do not consist only of initiating and conducting

prompt proceedings that lead to removals at any cost.

Rather, as has been said, the government wins when

justice is done.” In re S-M-J-, 21 I&N Dec. 722, 727

(BIA 1997).

Congress created the statutory mght to seek

reopening or reconsideration as part of a compre-

hensive revision of the law governing when an alien’s

physical location should (or should not) bear on the

judicial review of his or her immigration status. Pre-

JIRIRA, courts of appeals lacked jurisdiction to

review the deportation order of an alien who had

already left the United States (8 U.S.C. § 1105a(c)

(1994)), and so most aliens were able to obtain an

automatic stay of their removal order while judicial

review was pending. 7d. § 1105a(a)(3). Interested in

more efficient removal, Congress in IITRIRA rendered

aliens’ location irrelevant to the jurisdiction of re-

viewing courts. Among other things, ILRIRA lifted a

statutory bar to judicial review of deportation orders

for aliens who had departed the country. See William,

499 F.3d at 330. The statutory right to move to reopen

regardless of location is a piece of that reform. (The

REAL ID Act of 2005, Pub. L. No. 109-18, 119 Stat.

231, was the next major piece of legislation to address

removal procedures; it took a further step in the same

">

35

direction by repealing jurisdictional obstacles for

aliens pursuing petitions for review after they depart.

Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th

Cir. 2005)).

Having made these changes, Congress also re-

pealed the presumption of an automatic stay of

removal pending completion of judicial review and

restricted the availability of injunctive relief to pre-

clude removal. See Nken v. Holder, 129 S. Ct. 1749,

1755-56 (2009). Under this decoupling of jurisdiction

and physical presence in the United States, the post-

departure bar on motions to reopen or reconsider is a

relic from a bygone era. It should not survive Con-

gress’ substantial revision of immigration law.

IV. The Tenth Circuit’s Alternative Basis For

Denying The Petition Is Erroneous.

The Tenth Circuit panel majority, over the strong

dissent of Judge Lucero, denied Mr. Rosillo’s petition

for review on the alternative ground that the petition

was untimely. Despite Mr. Rosillo’s express preserva-

tion of his right to request the IJ and BIA to reopen

sua sponte his removal proceedings in briefs filed

with the IJ and BIA, the Tenth Circuit completely ig-

nored the IJ and BIA’s discretionary powers to reopen

Mr. Rosillo’s removal proceedings based on excep-

tional circumstances. Instead, the ‘Tenth Circuit

denied Mr. Rosillo’s petition on a ground that the IJ

and the BIA never considered — timeliness. Sig-

nificantly, neither the IJ nor the BIA based their

36

dismissal of Mr. Rosillo’s motion on _ timeliness.

Rather, the IJ and BIA’s denial of Mr. Rosillo’s peti-

tion was entirely based on the departure bar. App. at

64 & 59, respectively. And, the Tenth Circuit’s con-

sideration of factors outside the scope of the IJ and

BIA’s conclusions of law is erroneous.

Judge Lucero’s dissent aptly describes the funda-

mental rule of administrative law. A reviewing court

may not uphold an agency decision based on reasons

not articulated by the agency itself in its decision.

FPC v. Texaco, Inc., 417 U.S. 380, 397, 94 S. Ct. 2314,

2326 (1974); Securities and Exchange Comm ’n ov.

Chenery Corp., 318 U.S. 80, 87, 638 S. Ct. 454, 459

(1943). Nor may reviewing courts search the record to

find alternative grounds to support an agency deci-

sion. Mayo v. Schiltgen, 921 F.2d 177 (8th Cir. 1990).

“If an order is valid only as a determination of policy

or judgment which the agency alone is authorized to

make and which it has not made, a judicial judgment

cannot be made to do service for an administrative

judgment.” /d. at 88, 63 S.Ct. at 460. This is so

because appeilate courts simply “cannot intrude upon

the domain which Congress has exclusively entrusted

to an administrative agency.” /d.

The Tenth Circuit exceeded its authority when it

decided that Mr. Rosillo’s motion to reopen was due to

be denied because it was untimely. Only after the IJ

and BIA have opined on the timeliness of Mr. Rosillo’s

motion to reopen, may the Tenth Circuit review their

decisions. If the Tenth Circuit’s opinion remains valid,

the opinion will effectively neutralize the IJ and the

37

BIA’s sua sponte authority in the Tenth Circuit and

effectively overrule Chenery. This power is simply too

important to allow the Tenth Circuit to render it

meaningless in light of the severity of the penalty of

deportation, the complexity of deportation proceed-

ings, and the lack of other avenues of redress for

exceptional situations such as we have here — where

changes in Jaw that would render removal] invalid in

the first instance have developed subsequent to the

removal proceedings.

In light of the foregoing, this Court should grant

review and reverse the Tenth Circuit’s erroneous

decision denying Mr. Rosillo’s petition for review on

the basis of timeliness.

oe aemeeeegee

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LAURIE WEBB DANIEL DANIEL KANSTROOM

CYNTHIA G. BURNSIDE* C/O BOSTON COLLEGE

HOLLAND & KNIGHT LLP LAW SCHOOL

Suite 2000 885 Centre Street

1201 West Peachtree St., N.E. Newton, MA 02459

Atlanta, GA 30309 kanstroo@bc.edu

cynthia.burnside @hklaw.cor (617) 552-0880

(404) 817-8500 (617) 552-4098 (F)

(404) 881-0470 (F)

*Counsel of Record

for Petitroner

Counsel for Petitioner

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTIN ROSILLO-PUGA,

a/k/a Martin Puga, a/k/a

Martin Rosillo,

Petitioner,

Vv. No. 07-9564

ERIC H. HOLDER, JR.,*

United States

Attorney General,

Respondent.

THE AMERICAN

IMMIGRATION LAW

FOUNDATION,

Amicus Curiae.

ON PETITION FOR REVIEW FROM

THE BOARD OF IMMIGRATION APPEALS

(Filed Sep. 15, 2009)

* Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is

substituted for Michael B. Mukasey as the respondent in this

appeal.

App. 2

Cynthia G. Burnside, Holland & Knight LLP, Atlanta,

Georgia (Laurie Webb Daniel, Kimberly R. Ward,

Holland & Knight LLP, Atlanta, Georgia, and Rachel

E. Rosenbloom, Post-Deportation Human Rights Pro}-

ect Center for Human Rights and International

Justice, Boston College, Newton, Massachusetts, with

her on the briefs) for Petitioner.

James A. Hurley, Attorney (Anh-Thu P. Mai, Senior

Litigation Counsel, with him on the brief), United

States Department of Justice, Civil Division, Wash-

ington, D.C., for Respondent.

Trina Realmuto and Beth Werlin, Washington, D.C.,

filed an amicus curiae brief on behalf of the American

Immigration Law Foundation.

Before LUCERO, ANDERSON, and O’BRIEN, Cir-

cuit Judges.

ANDERSON, Circuit Judge.

Petitioner Martin Rosillo-Puga seeks review of a

decision issued by the Board of Immigration Appeals

(“BIA”), in which the BIA affirmed the Immigration

Judge’s (“IJ”) denial of Rosillo-Puga’s motion to recon-

sider or reopen his deportation proceedings. The IJ,

in reliance on regulations implementing the Immigra-

tion and Nationalization Act, had ruled that he lacked

jurisdiction over the motion because Rosillo-Puga had

App. 3

previously been removed from the United States.

After concluding that the regulations are valid, we

deny Rosillo-Puga’s petition for review.

BACKGROUND

On July 18, 1995, Rosilla-Puga, a native and

citizen of Mexico, was admitted into the United

States in Indiana as a conditional resident. On July

24, 1997, he was convicted of battery in an Indiana

state court. On August 14, 2003, the Department of

Homeland Security (“DHS”) commenced removal] pro-

ceedings against Rosillo-Puga by filing a Notice to Ap-

pear (“NA”) before the immigration court in Aurora,

Colorado. DHS charged Rosillo-Puga as being remov-

able from the United States pursuant to 8 U.S.C.

§ 1227(a)(2)(A)Gii), because he had been convicted of

an aggravated felony (the 1997 battery conviction), as

well as removable pursuant to 8 U.S.C. § 1227(a)(2) EXD),

because he had been convicted of a crime of domestic

violence (the same battery conviction, which involved

Rosillo-Puga’s wife).

Rosillo-Puga appeared pro se at a hearing before

an IJ and admitted the factual allegations in the NA.

Based upon those admissions, the IJ ordered Rosillo-

Puga removed to Mexico. Rosillo-Puga did not apply

for relief from removal and he waived his right to

appeal the removal order. Later in 2003, he was re-

moved to Mexico. Three months following Rosillo-

Puga’s removal to Mexico, the Seventh Circuit held

that a conviction for battery under Indiana law,

App. 4

pursuant to which Rosillo-Puga had been convicted,

was not an aggravated felony or a crime of domestic

violence for immigration law purposes. Flores v.

Ashcroft, 350 F.3d 666 (7th Cir.2003).

On May 7, 2007, some three-and-one-half years

after his removal to Mexico, Rosillo-Puga filed a

“Motion to Reconsider and Rescind Removal Oriier, or

in the Alternative to Reopen Proceedings” with the

immigration court in Colorado. In his motion, Rosillo-

Puga argued that, pursuant to 8 C.F-R. § 1003.23(b)(1),

the immigration court could reconsider or reopen his

case “at any time” ard that the IJ had discretion to do

so sua sponte.’ Rosillo-Puga specifically contended

that the August 2003 decision to remove him was

“based on an error of law” because the Seventh

Circuit had subsequently clarified that his battery

conviction was not an aggravated felony or a crime of

violence which subjected Rosillo-Puga to removal.

Respondent’s Mot. at 1, Admin. R. at 63. Rosillo-Puga

further argued that the Flores decision constituted

“exceptional circumstances to invoke the Court’s sua

sponte jurisdiction.” /d. at 9.

8 C.F.R. § 1003.23(b)(1) contains another provi-

sion critical to our decision in this case:

‘ 8C.E.R. § 1003.23(b)(1) provides in pertinent part:

An Immigration Judge may upon his or her own mo-

tion at any time, or upon motion of the Service or the

alien, reopen or reconsider any case in which he or

she has made a decision... .

App. 5

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. Any

departure from the United States, including

the deportation or removal of a person who is

the subject of exclusion, deportation, or re-

moval proceedings, occurring after the filing

of a motion to reopen or a motion to re-

consider shall constitute a withdrawal of

such motion.

8 C.F.R. § 1003.23(b)(11). Thus, pursuant to this

regulatory provision’s post-departure bar, aliens like

Rosillo-Puga who have been removed from the United

States may not file a motion to reopen or reconsider

their removal proceeding. In his motion to reopen or

reconsider, Rosillo-Puga argued that, despite the fact

that he had departed the United States, the regu

lation’s “at any time” language “permits an Immi-

gration Judge to exercise sua sponte jurisdiction

regardless of whether the motion is made pre- or

post-departure.” Respondent’s Motion at 11, Admin

R. at 73. He also argued that his removal to Mexico

did not bar his motion to reopen because the

deportation bar of 8 C.F.R. § 1003.23(b)(1) “does not

apply to those who have already been removed and

are therefore no longer ‘the subject of removal pro

ceedings.” Id. at 11-12. Finally, Rosillo-Puga argued

that, because of the “at any time” language in

§ 1003.23(b)(1), the time limits contained in the

statute for motions to reconsider (within thirty days

App. 6

of the entry of the final order of removal) and motions

to reopen (within ninety days of the entry of the final

order of removal) did not bar his motion

The IJ denied Rosillo-Puga’s motion. While not

ing that “{i]Jn most circumstances, an IJ has general

discretion to reopen and reconsider proceedings,” the

IJ concluded that the post-departure bar specifically

“precludes the IJ to exercise his general discretion in

reopening and reconsidering proceedings under such

circumstances.” Mem. and Dec. at 2, Admin. R. at 54.

Citing Shawnee Tribe v. United States, 423 F.3d 1204,

1213 (10th Cir. 2005), the IJ held that “the general

sua sponte authorit riven to an IJ to reopen and

e ,

’

reconsider proceedings is limited by the more specific

prohibition on making such motions on behalf of a

person who has departed after an order of removal.”

Id.” The lJ accordingly denied Rosillo-Puga’s motions

to reconsider or reopen the proceedings.

Rosillo-Puga appealed the adverse decision to the

BIA. He argued the IJ committed legal errors in

denying his motion to reopen or reconsider because:

there was no conflict between the provision that an IJ

can reconsider or reopen a proceeding “at any time”

and the post-departure bar; the post-departure bar

did not apply to those, like him, who had already

We stated in Shawnee Tribe that “[ilt is a ‘fundamental

canon of statutory construction that, when there is an apparent

conflict between a specific provision and a more general one, the

more specific one governs.’” 423 F.3d at 1213 (quoting United

States v. Groves, 369 F.3d 1178, 1188 n.5 (10th Cir. 2Z004))

been removed and Were ho ionge! r) reerric il

ceedings; he was not legally removed; the regulat

was contrary tot he appli able statute; the regulation

was unconstitutional; the Seventh Circuit Klore

decision constituted “extraordinary circumstanc:

sufficient to invoke sua sponte authority”; and Rosillo

Puga was not time-barred even though three and one

half years had elapsed since his removal. See Notic«

of Appeal, Admin. R. at 42. The BIA affirmed tl

decision and dismissed KRosillo-Pupa’s appeal

BIA agreed with the IJ that 8 C.F.R. §& 1003.2:

deprived the immigration court of jurisdictio

motions to reopen or reconsider made by alier

sequent to their departure from the United >

The Board also agreed with the iJ’s conclusior

the more specific po st depart ure bar trumps th

rencral language giving t he IJ authority 1 rev

ic

;

reconsider a proceeding sua sponte. This petit

review followed. Addressing the } M as th

nave presents d them, we deny the petitior

DISCUSSION

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App. 9

Three months after the enactment of the 1962

laws, the Attorney General issued implementing reg-

ulations, including 8 C.F-.R. § 3.2, titled “Reopening or

reconsideration before the [BIA].” That regulation

paralleled § 1105a(c), and provided:

[A] motion to reopen or a motion to re-

consider shall not be made by or on behalf of

a person who is the subject of deportation

proceedings subsequent to his departure

from the United States. Any departure from

the United States of a person who is the

subject of deportation proceedings occurring

after the making of a motion to reopen or a

motion to reconsider shall constitute a with-

drawal of such motion.

8 C.F_LR. § 3.2 (1962) (currently 8 C.F.R. 1003.2(d)). 8

C.F.R. § 1003.23(b)(1) contains identical language

governing motions to reopen or reconsider filed before

an IJ. From the early 1960s until 1996, 8 U.S.C

§ 1105a(c) remained unchanged from that 1961 ver-

sion, as did the language of the regulations regarding

motions to reopen or reconsider before an IJ and the

BJA. All barred post-departure motions to reopen or

reconsider. In Apml 1996, the Attorney General

amended 8 C.F.R. $3.2 and added numerical and

time limits for motions to reopen and to reconsic«r, as

well as prescribed contents for such a motion. The

post-departure bar remained.

In September 1996, Congress made major re-

forms to immigration law through its enactment

of the Illegal Immigration Reform and Immigrant

App. 10

Responsibility Act (““ITRIRA”), Pub. L. No. 104-208,

110 Stat. 8009. Amony other things, the IIRIRA

repealed the statutory bar to judicial review of

deportation orders when the alien had departed the

country and codified and enacted procedures gov-

erning the filing of motions to reopen. See William uv.

Gonzales, 499 F.3d 329, 330 (Ath Cir. 2007). Thus, the

current statute governing motions to reopen and

reconsider provides that “/t|he alien may file one mo-

tion to reconsider a decision that the alien is remov

able from the United States,” 8&8 U.S.C. § 1229a(cKX6)(A),

and that such a motion must be filed “within 30 days

of the date of entry of a final administrative order of

8 U.S.C. § 1229a(c\(6)(B). Furthermore,

“faJn alien may file one motion to reopen proceedings

under this section,” 8 U.S.C. § 1229a(c)(7)( A), which

re moval

motion must, in general, 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)(1). The statute

also details the required content of motions to reopen

or reconsider, as well as exceptions from both the

numerical limit of one motion to reopen and the time

period for filing such a motion. See 8 U.S.C.

§ 1229a(c)(7)(A)-(C). The statute does not, however,

contain any explicit post-departure bar to review,

which, as indicated above, had previously existed in

former 8 U.S.C. § 1105a(c).

On March 6, 1997, the Attorney General prom-

ulgated regulations implementing the TTRIRA. The

regulations retained the post-departure bar for

motions to reopen before an IJ and the BIA:

App. 11

A motion to reopen or ... 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. Any

departure from the United States, including

the deportation or removal of a person who is

the subject of exclusion, deportation, or re-

moval proceedings, occurring after the filing

of a motion to reopen ... or reconsider, shal]

constitute a withdrawal of such motion

(currently 8 C.FLR. § 1003.2(d)). Virtually identical

language bars post-departure review before the IJ

See 8 C.F.R. § 1003.23(b)(1). Thus, the regulations

continue to contain a post-departure bar to motions to

reopen or reconsider before both the IJ and the BIA

Indeed, the Attorney General specifically discussed

the continuing validity of the post-departure bar in

the notice and comment process for the regulatis

implementing the ITRIRA:

No provision of the new section 242

[INA] supports reversing the long

Itshed rule that a motion to reopen or

consider cannot be made in immign

troceedings by or on behalf of a person aft

that person’s departure from the Unit:

States.... The Department [fof Just

believes that the burdens associated with t!

adjudication of motions to reopen. ai

reconsider on behalf of deported or depart:

aliens would greatly outweigh any advar

tages this system might render

App. 12

Inspection and Expedited Removal of Aliens; Conduct

of Removal Proceedings; Asylum Procedures, 62 Fed.

Reg. 10,312, 10,321 (March 6, 1997).

4 :

Ill. Validity of 8 C.F.LR. § 1003.2(d) and .23(b)(1)

A.

The validity of the regulations continuing to

impose a post-departure bar, and their applicability

to Rosillo-Puga, are at the heart of this case. William,

499 F.3d 329, the only court to directly address the

validity of these regulations, has determined that the

regulations are invalid because they “conflict{ ] with

the statute [8 U.S.C. § 1229a(c)\(6)(A) and (7)(A)] by

restricting the availability of motions to reopen to

those aliens who remain in the United States.” /d. at

334.

We note that the Supreme Court recently tangentially

discussed the departure bar in Dada v. Mukasey, 1288S. Ct. 2307

2008). In Dada, the Supreme Court addressed a dilemma faced

by certain aliens:

the alien who is granted voluntary departure but

whose circumstances have changed in a manner

cognizable by a motion to reopen is between Scylla

and Charybdis: He or she can leave the United States

in accordance with the voluntary departure order;

but, pursuant to [8 C.F. R. § 1003.2(d)], the motion to

reopen will be deemed withdrawn. Alternative!,. if the

ahen wishes to pursue reopening and remains in the

United States to do so, he or she risks expiration of

the statutory period and ineligibility for adjustment of

status, the underlying relief sought.

(Continued on following page)

App. 13

““The judiciary is the final authority on issues of

statutory construction and must reject administrative

constructions which are contrary to clear congres

‘

sional intent.’” Lee v. Mukasey, 527 F.3d 1103, 1106

(lOth Cir. 2008) (quoting Chevron U.S.A., In U

Natural Res. Def. Counctl, Inc., 467 U.S. 837, 8438 n.9

/

(1984)). “We begin by analyzing the plain language

employe. by Congress, and we ‘must give words their

ordinary or natural meaning.’” Jd. (quoting Leocal 1

’

Ashcroft, 543 U.S. 1, 8-9 (2004)). Finally, “[wJhen a

court rev1iews an agency's construction of the statute

which it administers,” it must first answer “whether

Congress has directly spoken to the precise question

at issue.” Chevron, 467 U.S. at 842. “If congressional

intent is clear from the statutory language, the

inquiry 1s over, and both the court and the agency

‘must give effect to the unambiguously expressed

ld. at 2318 (citations omitted The Court held that iT Ven

should be allowed to withdraw his or her motion for voluntary

departure, in order to pursue a motion to reopen. The very

problem identified by the Supreme Court in Dada would not

exist but for the validity of the regulation challenged here — the

alien’s motion to reopen would not be withdrawn but for the

regulation. See Matter of Armendarez-Mendez, 24 1 & N Dex

646, 655 n.7 (BIA 2008) (“We perceive some tension between

William and the Supreme Court’s recent precedent. in Dada

Mukasey, ... which treated the departure bar as a valid

constraint on the Board's authornty to adjudicate motions filed

by the beneficiaries of voluntary departure orders. Such

treatment was essential to the Dada Court’s portrayal of the

problem to be remedied.”) (citation omitted). We are aware,

however, that neither party in Dada specifically challenged the

validity of the regulations at issue

App. 14

intent of Congress.” Lee, 527 F.3d at 1106 (quoting

Chevron, 467 U.S. at 842-43. “[I]f the statute is silent

or ambiguous with respect to the specific issue, the

~uestion for the court 1s whether the agency's answer

is based on a permissible construction of the statute.’

Ochieng v. Mukasey, 520 F.3d 1110, 1114 (10th Cir

2008) (quoting Chevron, 467 U.S. at 843

In accordance with Chevron, we begin with the

plain language of the statute, 8 U.S.C. § 1229a(c)(6

and (7): “The 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). “An alien may file

one motion to reopen proceedings under this section

except that this limitation shall not apply so as to

prevent the filing of one motion to reopen described in

ubparagraph (C)(iv).” Jd. § 1229a(e)(7)(A)

As indicated, the William court is the only court

to specifically address the clarity or ambiguity of thi:

statute and whether the regulations providing a post-

departure bar conflict with the statute. The majority

in Willtam concluded “that § 1229a(c)(7)(A) unambig-

uously provides an alien with the right to flie one

motion to reopen, regardless of whether he is within

or without the country.” William, 499 F.3d at 332. The

court marshaled several arguments in support of its

conclusicn. First, the Fourth Circuit observed that “in

providing that ‘an alien may file, the statute does not

distinguish between those aliens abroad and those

within the country — both fall within the class denom-

inated by the words ‘an alien.’” Jd. Thus, the court

concluded that “Congress unambiguously addressed,

and at least implicitly repealed, the

departure bar by granting

y y

one motion to reopen.” /

reopen bolst«

cannot

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reopen, § ongress provides

lav limit does not apply wher

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is applying for relief! from re

199 od it 333 10ti1

S 1229a(ci7)C hav IV nternal citation and

tion omitted). Given that Congres

physical presence requirement in

Fourth Circuit drew “a ‘negative

gress’ exclusion of the physical presence requsren

from the statutory section under consideration.” Jd

(noting that where Congress “includes particular

language in one section of a statute but omits it

another section of the same Act . itis generally pre

sumed that Congress acts intentionally and purposely)

in the disparate inclusion or exclusion”) (citing

cy'7

Hamdan v. Rumsfeld, 126 5S. Ct. 2749, 2765 (2006)

App

Ganternal quotations omitted). Further, the court

observed that “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(7C)avJTV) mere surplusage.” Jd. “In sum, Con

gress knew how to include a requirement of physical

presence when it wished to do so, as it did in

y 1229a(c)7)(C)Uv)IV That it did not do so in the

general provisions of § 1229a(c)(7)(A) leads us to

conclude that Congress did not make presence in the

United States a prerequisite to filing a motion to

;

. r /

revo Bell La

Having found that § 1229:

inambiguously grants an alien the night

motion to reopen, regardless of whether he

in the United States when the motion

Kourth Circuit declared that 8 C.F.R. § 1003.2(d

containing the post-departure bar n motion

reopen, “conflicts with the statut ind

authority and is invalid.” /d. at 334. The

reasoning would support the

respect to 8 C.F.R. § 1003.23(b)

Calling it “a close cuestion,” the lengthy dissent

to the majority's decision in William explained its

conclusion that “8 C.FL.R. § 1003.2(d) remains a valid

exercise of the Attorney General’s congressionally-

delegated rulemakin= authority under the |I[mmigra

tion and Nationality Act].” Jd. at 335. ‘The dissent also

developed many arguments supporting its view that

App. 17

Congress did not intend to, in effect, repeal the

Attorney General's regulations

First, applying the first part of the Chevron

analysis, the dissent concluded that Ҥ 1229a(c)(7)(A)

in isolation says nothing about the departure bar in 8

C.F_R. § 1003.2(d) or about whether the statute as a

whole should be construed as repealing the departure

bar.” William, 499 F.3d at 336 (Williams, C.J., dis

senting). It rejected the majority's arguments about

the domestic-violence exception, noting that the

“physical presence” requirement in the domesti

violence exception was enacted after the ITRIRA, and

thus shed no light on Congressional intent at the

time the IIRIJRA was enacted, and noting, furthe

that the physical-presence requirement is not co

extensive with the regulatory departure bar. The

provision

dissent also noted that “a nearly identical!

limiting aliens to one motion to reopen existed before

enactment of the LIRIRA, and in the same regula

tion containing the departure bar now located in

§ 1003.2(d),” which undermined the “majority n

clusion that § 1229a(c)(7)(A) by itself repeal the

departure ban in 8 C.F.R. § 1003.2(d).” /d. at 334-3

8 U.S.C. § 1229a(c)( 7 iVMIV), the domestic violence

exception to the limit of one motion to reopen, only requires the

alien to be physically present when the motion to reopen is filed

The departure bar in the regulations provides that any de

parture effects a withdrawal of a previously filed motion, ther:

by requiring continuous presence in the United States

parture

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App. 23

forty years of continuous practice by the Attorney

General. It is “well established that when Congress

revisits a statute giving rise to a longstanding admin-

istrative interpretation without pertinent change, the

congressional failure to revise or repeal the agency’s

interpretation iS persuasive evidence that the

interpretation is the one intended by Congress.” Com-

modity Futures Trading Comm’n v. Schor, 478 U.S.

833, 846 (1986) (internal quotations omitted). See

Matter of Armendarez-Mendez, 24 1 & N Dec. 646

(BLA 2008) (specifically rejecting the analysis of the

William majority).

The dissent to this opinion relies upon quotations

from Dada (a case not cited to us by either party) to

support its view that the regulations at issue are

invalid. In our view, Dada speaks more to status than

procedure, and an alien in voluntary departure pro-

ceedings has a different status than an alien who has

been removed:

In many ways the structure of the

present immigration system is predicated on

the assumption that the physical removal of

an alien from the United States is a trans-

formative event that fundamentally alters

the alien’s posture under the law. Indeed, the

ultimate purpose of a removal proceeding is,

with respect to removable aliens, precisely to

bring about such a physical departure. As a

rule, once an alien has been removed, his

underlying removal order is deemed exe-

cuted, the proveedings that led to that order

App. 24

are consummated, and whatever immigra-

tion status the removed alien may have

possessed before departure is vitiated. .

The consequence of departure for a

removed alien is thus not just physical ab-

sence from the country, but also a nullifica-

tion of legal status, which leaves him in no

better position after departure than any

other alien who is outside the territory of the

United States. In fact, an alien who

physically departs the United States after

being ordered removed is in a substantially

less advantageous position than other alicns,

because the existence of a removal order

renders him or her inadmissible and vul-

nerable to heightened criminal sanctions and

expedited removal procedures in the event of

unlawful reentry.

Matter of Armendarez-Mendez, 24 I & N Dec. 646,

655-56 (2008). Thus, we do not view Dada as im-

plicitly supporting the view that the regulations are

invalid.

b.

There is an alternative basis for denying Rosillo-

Puga’s petition for review. As the facts set forth above

indicate, Rosillo-Puga filed his motion to reconsider

and/or reopen some three-and-one-half years after his

removal to Mexico. Section 1229a(c)(6)(B) provides

that a motion to reconsider “must be filed within 30

days of the date of entry of a final administrative

App. 25

order of removal,” and section 1229a(c)(7)(C)G) pro-

vides that a motion to reopen “shall be filed within 90

days of the date of entry of a final administrative

order of removal.” Thus, Rosillo-Puga’s motions were

untimely. While Rosillo-Puga’s counsel suggested at

oral argument that such time limits are subject to

various tolling provisions, no one has made a serious

argument that Rosillo-Puga’s motions would be

viewed as timely filed. Accordingly, we conclude, as

the Fifth Circuit did recently, that Rosillo-Puga’s

petition was untimely. See Ovaliles v. Holder, 2009 WL

2222883 (5th Cir. July 27, 2009). That basis similarly

distinguishes this case from the majority’s position in

William.

Furthermore, there is an additional ground upon

which to rule against Rosillo-Puga: waiver. While he

has suggested that the time limits applicable to a

petition to reopen or reconsider are mere rules of

procedure, rather than jurisdictional impediments,

there is no doubt that he has waived any argument

that he should be excused from those procedural

requirements. Accordingly, Rosilio-Puga’s petition

fails for this alternative reason.

IV. Application of Regulations

Assuming the validity of the regulations, which

we have found, Rosillo-Puga argues alternatively that

8 C.F.R. § 1003.23(b)(1) does not apply to those aliens

who have already been removed. He relies upon the

Ninth Circuit’s decision in Lin v. Gonzales, 473 F.3d

App. 26

979 (9th Cir. 2007), in support of this argument. The

regulation states that a motion to reopen or re-

consider “shall not be made by or on behalf of a

person who its the subject of removal, deportation, or

exclusion proceedings.” 8 C.F-R. § 1003.23(b)(1). The

Ninth Circuit held that the “regulation is phrased in

the present tense and so by its terms applies only toa

person who departs the United States while he or she

‘is the subject of removal ... proceedings.” Lin, 473

F.3d at 982. Accordingly, “|bJecause petitioner’s origi-

nal removal proceedings were completed when he was

removed ..., he did not remain the subject of re-

moval proceedings after that time.” Jd.

> GOVE es us not to follow JLrn,

The government urges us not to follow J

arguing that it misinterpreted the plain language of

the regulations:

A plain reading of both regulations["] shows

they aim to bring finality to the immis; ation

process by preventing an alien from iiling a

motion to reopen after having departed the

United States. The [Ninth Circuit} erred

because while the regulations speak in terms

of an alien who “is the subject of” removal

proceedings, the regulations do not link the

term “is” to the time of departure. Rather,

“is” refers to an alien who at some point is 1n

proceedings, regardless of whether he or she

departs during or after those proceedings.

* The government refers to both § C.F-R. § 1003.23(b)(1) and

§ 1003.2(d), which contain identical language

App. 27

Respondent’s Br. at 21. The government finas rein-

forcement for that interpretation in the next sentence

of the regulations, which states “[aJny departure from

the United States, including the deportation or re-

moval 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, shall constitute a withdrawal of such

motion.” 8 C.F.R. § 1003.2(d); 8 C.F.R. § 1003.23(b)(1).

The government argues “|t|hat sentence also speaks

in terms of an alien who ‘is the subject’ of removal

proceedings, but necessarily deals with departures

after the completion of proceedings.” Respondent’s Br.

at 22.

We agree with the government that Lin’s

interpretation of the regulation is problematic. Quite

simply, it seems illogical to discuss motions to reopen

filed by aliens 77 proceedings, as typically, a motion to

reopen will be filed only by one whose proceedings are

completed, and, thus, need to be “reopened.” By

contrast, the regulation as a whele makes sense if it

addresses motions to reopen filed by those aliens who

have departed following the completion of their

deportation/removal proceedings, and wish to reopen

them. We therefore reject Rosillo-Puga’s interpreta-

tion of the regulation. See Matter of Armendarez-

Mendez, 241 &N Dec. 646 (BIA 2008) (specifically re-

jecting the Lin court’s interpretation of the regula-

tion); see «/so Ovalles, 2009 WL. 2222883, at **8-10

(rejecting identical argument).

App. 28

Rosillo-Puga also argues, alternatively, that the

reguletion is arbitrary and capricious as applied to

him because it fails to account for the fact that his

order of removal was premised on a characterization

of his conviction that was subsequently overturned;

that the IJ and BIA should have considered his

motion sua sponte; and that the agency’s application

of the regulation violated his due process rights. We

note that the Fifth Circuit has recently rejected the

identical arguments, and we agree with that court’s

analysis. See Ovalles, 2009 WL 22228838, at **7-11.

Rosillo-Puga argues that the “IJ’s removal order

is invalid because it is based on an erroneous

interpretation of the definition of a crime of violence.”

Pet’r’s Br. at 27. While Rosilio-Puga cites some cases

arguably supporting his position, as the government

points out, there is ample authority to the contrary.

For example, in Navarro-Miranda v. Ashcroft, 330

F.3d 672 (5th Cir. 2003), a case very similar factually

to this case, the petitioner had previously been de-

ported based on a drunk driving conviction, and he

argued, post-departure, that the BIA should have sua

sponte reopeiced his proceedings because an inter-

vening circuit court decision held that a drunk driv-

ing conviction was not a deportable offense. The BIA

declined to invoke its sua sponte authority, noting

that the more specific post-departure bar trumped the

more general sua sponte authority provision. In

denying the petition for review, the Fifth Circuit

observed that “l[t]he Board’s conclusion ... is

consistent with the well-established principle that ‘a

App. 29

final civil judgment entered under a given rule of law

may withstand subsequent judicial change in that

rule.’” fd. at 676 (quoting Teague v. Lane, 489 U.S.

288, 308 (1989)); see also Patel v. Atty. Gen., 334 F.3d

1259, 1262 (lith Cir. 2003) (dismissing petition

where petitioner’s prior conviction was subsequently

found by state court to not constitute a deportable

defense, saying “we perceive no theory under which

the subsequent action of a state court could confer

jurisdiction upon us that would not otherwise exist”).

Thus, we cannot say that the BIA’s decision was arbi-

trary and capricious. See Ovalles, 2009 WL 2222883,

at **7-9.

Next, the IJ and BIA found that “when there is

an apparent conflict between a specific provision and

a more general one, the more specific one governs.”

Memorandum & Dec. at 2, Admin. R. at 54; see also

Order at 1, Admin. R. at 2. As we stated in Shawnee

Tribe, “\ijJt is a fundamental canon of statutory con-

struction that, when there is an apparent conflict

between a specific provision ¢nd a more general one,

the more specific one governs.” 423 F.3d at 1218

(further quotation omitted). That general rule has

been specifically applied to the regulations at issue

here. See Navarro-Miranda, 330 F.3d at 676 (“{T]he

BIA’s reasoning that the prohibition on motions to

reopen stated in § 3.2(d) [post-departure bar] over-

rides its § 3.2(a) power to reopen on its own motion is

a reasonable interpretation of these two regula-

tions.”); see also Mansour v. Gonzales, 470 F.3d 1194,

1198 (6th Cir. 2006). Furthermore, we have held that

App. 30

“we do not have jurisdiction to consider petitioner’s

claim that the |Board] should have sua _ sponte

reopened the proceedings under 8 C.F.R. § 1003.2(a)

because there are no standards by which to judge the

agency’s exercise of discretion.” Infanzon v. Ashcroft,

386 F.3d 1359, 1361 (10th Cir. 2004). Thus, we per-

ceive no error in the BIA’s decision that, notwith-

standing its sua sponte authority to consider motions

to reopen, it declined to reopen’ Rosillo-Puga’s

proceedings in this case.’ See Ovalles, 2009 WIT.

2222883, at **6-8

Finally, Rosillo-Puga argues that the BIA’s appli-

cation of the regulatory bar to his case violated his

due process rights. We disagree. “It is well-estab-

lished that aliens are entitled to due process in

deportation proceedings.” Pena-Muriel, 489 F.3d at

443. “In this context, due process requires that the

alien receive notice of the charges against nim, and a

fair opportunity to be heard before an executive or

administrative tribunal.” /d. Rosillo-Puga received

due process in his deportation proceedings. At the

time of his removal, he had been convicted of a crime

that warranted his removal. He received all appro-

priate process before the immigration authorities, he

did not seek relief from the removal order, and he

waived his right to appeal the removal order. He

made no attempt to alter the status of his conviction

We note that the BIA has recognized that it may reopen or

reconsider a case sua sponte in “exceptional circumstances.” See,

e.g.,inredJ-J, 211&N. Dec. 976 (BIA 1997).

App. 31

before he left the country. Now, Rosillo-Puga attempts

to reopen proceedings that ended roughly five years

ago, and five years following his departure. “Due

process does not require continuous opportunities to

attack executed removal orders years beyond an

alien’s departure from the country. Indeed, there is a

strong public interest in bringing finality to the

deportation process.” Jd.

CONCLUSION

We accordingly DENY the petition for review of

the BIA’s decision.

O’BRIEN, J. concurring.

Although the parties have argued more broadly,

the principal issue presented by this case is narrow —

whether an untimely petition to reopen or to re-

consider, as it relates to an Immigration Judge (IJ), is

subject to the post-departure bar found in 8 C.F.R.

§ 1003.23(b)(1). That issue was resolved to my

satisfaction by the Fifth Circuit in Ovalles v. Holder,

_. F.3d __. 2009 - WL 2222883 (5th Cir. July 27,

2009). In addressing Ovalles’ argument that the post-

departure bar, as it relates to the Board of

Immigration Appeals (BIA), was at odds with 8

U.S.C. § 1229a(c)(6)A) and (c)(7)(A) [providing an

alien the right to file one motion to reopen or to

reconsider], the court said “Ovalles invokes statutory

provisions that offer him no relief,” id. at *5, because

App. 32

his motion to reopen or reconsider was considerably

—e ]

out of time.

The same is true here; a timely motion to reopen

or reconsider is not before us. Rosillo-Puga did not file

his motion to reopen and/or reconsider until 3 1/2

years after his removal, well beyond the 30 and 90

day time limits provided by statute. See 8 U.S.C.

§ 1229a(c)(6)A), (7)(A) (absent circumstances not

present here, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv), a

motion to reconsider and a motion to reopen must be

filed within 30 days and 90 days, respectively, of the

date of entry of the removal order).

And we need not be distracted by worrying

whether the time limits for filing such motions are

jurisdictional or subject to equitable considerations. If

Rosillo-Puga had equitable arguments against en

forcing the statutory time limits he could have filed

his motion to reopen and/or reconsider and asserted

them; there would be no need for his attempted end

run around the statutes by appealing te the IJ to

exercise sua sponte authority to reopen or reconsider

1

The post-departure bar applicable to the BIA, 8 C.F.R.

§ 1003.2(d), and that applicable to the iJ, 8 C.ER.

§ 1003.23(b)(1), are equivalent. See Majority Op. at 10, 25, 20.

And it was filed more than three years afler the Seventh

Circuit decision upon which he rests his claims. See Flores v.

Ashcroft, 350 F.3d 666 (7th Cir. 2003); see also Ovalles, 2009 WL

2222883 at *5 (motion to reopen or reconsider filed eight months

after the Supreme Court decision relied upon as basis to reopen

or reconsider)

App. 33

under 8 C.F.R. § 1003.23(b)(1). He waived any claim

to consideration of equitable factors by his litigation

strategy.” In the words of the Fifth Circuit: “|Blecause

IS$ |] 1L229a(c)(6) and 1229a(c)(7) ... do not grant

[Rosillo-Puga] the right to have his facially and con

cededly untimely motion heard by the [IJ], he cannot

rely on those statutory provisions as a basis for

contending that the [IJ] was required to give sua

sponte consideration to the merits of his ... motion to

reconsider or reopen... .” Ovalles, 2009 WL 2222883,

at *6.

[ would have preferred to decide this issue on the

narrow grounds outlined (and convincingly explained

by the Fifth Circuit). It is tempting to concur in all

but Part TII(A) of Judge Anderson’s excellent opinion

But doing so would leave the issue presented for our

Moreover, Kosillo-Puga expressly acknowledged the

untimeliness of his motion to reopen and/or reconsider in the

agency proceedings. As the IJ stated in his order denying the

motion: “{Rosillo-Puga] acknowledges in his motion that he i;

barred from seeking a motion to reconsider or to reopen due to

the time constraints of 8 C.FLR. § 1003.23(b.1) (2007). [He]

requests the Immigration Judge (“IJ”) to exercise his sua sponte

authority under 8 C.F.R. § 1003.23(b)(1) to reconsider and

rescind his order of removal.” (R. Vol. I at 46.) The government

defended against Rosillo-Puga’s motion before the agency based

on its untimeliness, arguing: “The current motion is dated May

2, 2007, approximately 3 '/% years after the final [removal}

decision. The court is without jurisdiction to consider this mo

tion (he was removed and it is filed outside the 30 days for

motions to reconsider and 90 days for a motion to reopen)

C.F.R. section 1003.23.” Ud. at 55.)

Me

review unresolved in this circuit. For that reaso! I

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that & U.S.¢ S 1229a } lent on the question of

whether, subsequent to departure from the United

States. an alien may file a motion to reconsider

removability under § 1229a(c)(6)(A), or a motion to

reopen removal proceedings under § 1229a(c)(7)A)

In addition, the majority holds that an Immigration

Judge (“IJ”) lacks the power LO Sua sponte reconsider

or reopen an alien’s case after an alien has departed

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Azarte v. Ashcroft, 394 F.3d 1278, 1285-86 (9th Cir.

2005) (“With respect to motions to reopen ... , Con-

gress’ language in IIRIRA is clear and unambiguous:

‘An alien may file one motion to reopen proceedings.’’

(quoting § 1229a(c)(6)(A) (2004)) (footnote omitted)).”

The post-departure bar, which prohibits departed

aliens from filing a motion to reconsider or reopen,

conflicts with this unambiguous statutory language.

See 8 C.ER. § 1003.23(b)(1)-°

At the time of the Ninth Circuit’s decision in Azarte, mo-

tions to reconsider were governed by § 1229a(c)(5) and motions

to reopen were governed by § 1229a(c\6). In 2005, Congress

amended § 1229a, redesignating subsection (cX5) as (cX6) and

(c(6) as (c)(7). See Real ID Act of 2005, Pub. L. No. 109-138, div

B, § 101(d 1), 119 Stat. 302, 304 (2005).

*“ The regulation setting forth the post-departure bar pro

vides:

An Immigration Judge may upon his or her own

motion at any time, or upon motion of the Service or

the alien, reopen or reconsider any case in which he or

she has made a decision, unless jurisdiction is vested

with the Board of Immigration Appeals. ...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. 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 shall constitute a withdrawal of

such motion.

8 C.F.R. § 1003.23(b\(1) (emphasis added). It is the emphasized

portion of this section that Rosillo-Puga has challenged, and

that I refer to throughout as “the post-departure bar.”

(Continued on following page)

App. 38

Despite this clear language, the majority con-

cludes that § 1229a(c\6)A) and (7)(A) are silent on

the question of whether a certain subclass of aliens —

“aose who have departed the United States — may file

one motion to reconsider and reopen. Maj. Op. at 19.

Surely this cannot be correct. Sections 1229a(c)(6)(A)

and (7)(A) speak in absolute and unequivocal terms:

“The alten may file one motion to reconsider,”

§$ 1229a(c\6)A) (emphasis added), and “/ajn alten

may file one motion to reopen,” § 1229a(c)(7 A) (em-

phasis added). My colleagues conclude not that Con-

gress was silent regarding which aliens may file

motions, but rather, that Congress was silent regard-

ing whether any subclass of aliens might nonetheless

he excluded. Maj. Op. at 19. Under the majority's

approach, Chevron would require that Congress ex-

pressly enumerate all that an agency cannot do be-

fore we may conclude that Congress “has directly

spoken to the precise question at issue.” See 467 U.S.

at 842. The majority would thus preclude customary

expression of Congressional intent by the use of

expansive and inclusive permissions such as those in

§ 1229a(c)(6)(A) and (7)(A).

My colleagues’ reasoning conflicts with the thrust

of Chevron: we are to initially look at the plain

.

language of an act, and if there be any doubt, only

A parallel reguiation, which applies to the Board of

Immigration Appeals (“BIA”) rather than to IJs, appears at 8

C.F.R. § 1003.2. In William, the Fourth Circuit invalidated the

post-departure bar contained in § 1003.2(d). 499 F.3d at 334.

App. 39

then are we to look to the intent of Congress using

additional tools of statutory construction. Id. at 843

n.9 (“If a court, employing traditional tools of stat-

utory construction, ascertains that Congress had an

intention on the precise question at issue, that

intention is the law and must be given effect.7). On

the issue before us, a plain reading of the text of the

statute compels the conclusion that § 1229a(c)\(6)A)

and (7)(A) unambiguously guarantee all aliens the

right to file one motion to reconsider and one motion

to reopen.

Before today, we have followed the dictates of

Chevron, giving effect to the clear intent vf Congress

in determining whether a regulation is consistent

with the governing act. For example, in Lee v. Gallup

Auto Sales, Inc., we invalidated a regulation that

exempted from the Odometer Act a subclass of motor

vehicles which were neither explicitly nor implicitly

exempted under the terms of the pertinent statute.

135 F.3d 1359, 1360-62 (10th Cir. 1998). Under the

terms of the Odometer Act, a transferor was required

to disclose certain information whenever ownership of

“a motor vehicle” was transferred. Jd. at 1360 (quot-

ing 15 U.S.C. § 1988(a) (1993) (current version at 49

U.S.C. § 32705 (2008))) (emphasis added). Neverthe-

less, the Secretary of Transportation promulgated a

regulation exempting from the disclosure require-

ments those motor vehicles ten years old or older. Jd.

(citing 49 C.FLR. § 580.6(a)(3) (1993) (current version

at 49 C.E.R. § 580.17(a)(3) (2008))). “Because the text

>

of the Odometer Act dfid] not even suggest — much

App. 40

less explicitly state — a legislative intent to exempt

entire classes of vehicles from the disclosure require-

ments of the Act,” we invahdated the regulation as

contrary to the clear meaning of the statute. /d. at

1361 (quotation omitted); see also Sutter v. Mitchell

Motor Coach Sales, Inc., 151 F.3d 1275, 1280-81 (10th

Cir. 1998) Unvalidating a regulation that exempted

from the disclosure requirements of the Odometer Act

those vehicles with a gross vehicle weight rating in

excess of 16.000 pounds because the Act was unam-

biguous in its failure to authorize such an ex-

emption).

In this case, the language of § 1229a(c\(6)(A) and

(7A) does not evince a congressional intent to ex-

clude subclasses of aliens from the statutorly-guar-

anteed right to file one motion to reconsider and one

motion to reopen. Quite to the contrary, inclusive

terms “[t]he alien” and “[a]n alien” indicate a con-

gressional intent that a// aliens subject to a removal

order are entitled to file such motions. Assuredly, ihe

Attorney General cannot by regulation rewrite the

Act to exempt an entire subclass of aliens when

Congress itself chose not to authorize such an ex-

emption. See Suiter, 151 F.3d at 1280-81; Lee, 135

F.3d at 1360-62.

»)

a

Structurally, §1229a reinforces my interpreta-

tion. Throughout § 122

ber of limitations on an alien’s mght to file for

229a, Congress codified a num

App. 41

reconsideration or reopening. Those limitations are

express and clear. See § 1229a(c\6)(B) (motions to

reconsider must be filed within 30 davs of final

removal order); § 1229a(c)(6)(C) (motions to recon-

sider must challenge errors of law or fact, rather than

the exercise of discretion, and must be supported by

pertinent authority); § 1229a(c)(7\B) (motions to

reopen must state new facts and be supported by

evidentiary material); § 1229a(c)(7)(C) (motions to

reopen must generally be filed within 90 days of final

removal order). In doing so, Congress clearly con-

sidered the need to limit the filing of suck motions

and selected a precise scheme of time, number, and

content restrictions.

Sections 1229a(c)(6)(A) and (7)(A) also include an

express limitation: aliens are limited to one motion to

reconsider and one motion to reopen. In contrast,

what § 1229a does not do is limit by geography the

class of aliens eligible to file motions to reconsider

and reopen. ‘That Congress expressly included multi-

ple limitations, but chose not to include another — one

based on geography — presents a paradigmatic ex-

ample of the canon of statutory construction expressio

untus est exclusio alterius. See United States v.

* The House Report accompanying the passage of II[RIRA

shows that Congress considered § 1229a(c)6)(A) and (7)(A) to

embody an important limit on an alien’s right to file motions to

reconsider and reopen: “Aliens are limited to a single motion to

reconsider and a single motion to reopen removal proceedings.”

H.R. Rep. No. 104-469, pt. 1, at 159 (1996).

App. 42

Brown, 529 F.3d 1260, 1265 (10th Cir. 2008); see also

United States v. Johnson, 529 U.S. 53, 58 (2000)

(“When Congress provides exceptions in a statute, it

does not follow that courts have authority to create

others. The proper inference ... is that Congress

considered the issue of exceptions and, in the end,

limited the statute to the ones set forth.”); United

States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.

1989) (“As a- general principle of statutory

interpretation, if a statute specifies exceptions to its

general application, other exceptions not explicitly

mentioned are excluded.”).

This point is supported by another provision in

the same statute. In § 1229a(c)(7C)Uv)(TV), Congress

did include a geographic condition, exempting victims

of domestic violence from the deadline for filing a

motion to reopen “if the alien zs physically present in

the United States at the time of filing the motion.” 8

U.S.C. § 1229a(c)7)(C)GvXTV) (emphasis added); see

Sanchez v. Keisler, 505 F.3d 641, 642 (7th Cir. 2007).°

Obviously aware of the potential for such a distinc-

tion, Congress chose not to include similar language

in § 1229a(c)(6)A) and (7)(A). This textual contrast

serves as a buttress to the conclusion that Congress

* Imposing a “physical presence” requirement on aliens who

seek to invoke the § 1229a(c)(7)(C)liv) “special rule for battered

spouses, children, and parents,” but not on other aliens, is only

logical. This rule was enacted to protect aliens who have “been

battered or subjected to extreme cruelty in the United States” in

connection with their need for immigration benefits. 8 U.S.C

§ 1641(c)(1)(A) (emphasis added).

App. 43

did not intend to limit by geography the availability

of motions to reconsider or reopen. Indeed, by con-

cluding as it does that an alien must be in the United

States to file any motion to reconsider or reopen, the

majority would “render the physical presence require-

ment expressly written into subsection (c)(7KC)Gv)(IV)

mere surplusage.” William, 499 F.3d at 333.

Relying on the dissent in William, the majority

advances two reasons to disregard the inference I

draw from the existence of the physical presence re-

quirement in § 1229a(c)(7)(C iv) TV) and its conspic-

uous absence in § 1229a(c)(6)(A) and (7)(A). Maj. Op.

at 15-16; see William, 499 F.3d at 337-38 (Williams,

J., dissenting). First, my colleagues note that the

physical-presence requirement was added in 2006, see

Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162,

§ 825, 119 Stat. 2960, 3063-64 (2006), and therefore

infer that it sheds no light on what Congress in-

tended when it enacted IILIRIRA in 1996, see William,

499 F.3d at 337. Second, the majority agrees that

“S$ 1229a(c)(7)(C)GvXIV)’s physical-presence require-

ment is not coextensive with the regulatory departure

bar.” Id.

The majority’s first argument is wrong on two

counts. As an initial matter, whether particular

language in the statute was added in 1996 or 2006,

we must still read the statute as a whole. TRW Ince. v.

Andrews, 534 U.S. 19, 31 (20u1) (“It is a cardinal

principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it

App. 44

can be prevented, no clause, sentence, or word shall

be superfluous, void, or insignificant.” (quotations

omitted)); Bridger Coal Co./Pac. Minerals, Inc.,_ v.

Dir., Office of Workers’ Comp. Programs, 927 F.2d

1150, 1153 (10th Cir. 1991) (“We will not construe a

statute in a way that renders words or phrases

meaningless, redundant, or superfluous.”). If physical

presence in the United States were already required

of aliens before they filed a motion to reconsider or

reopen under § 1229a(c)(6)(A) and (7)(A), the “physi-

cally present” language in § 1229a(c)(7)(C)avXIV)

would be entirely superfluous.

Second, it is equally probable that Congress

included the “physically present” language in 2006

precisely because § 1229a(c)(6)(A) and (7)(A) contain

no such requirement. In other words, Congress in

2006 understood perfectly well what it had done in

1996: all aliens, whether or not physically present in

the United States, were granted the right to file one

motion to reconsider and one motion to reopen. Con-

gress also imposed a strict time limit — a limit it then

chose to lift in 2006 for qualifying victims of domestic

violence filing a motion to reopen while physically

present in the United States. § 1229a(c)(7)(C)Uiv)IV);

see William, 499 F.3d at 333 (majority op.) (“Congress

knew how to include a requirement of physical

presence when it wished to do so, as it did in

§ 1229a(c)(7)(C)av)TV).”).

We are offered a second explanation for rejecting

the logical inference which should be drawn from

the “physically present” language: the 8 U.S.C.

App. 45

§ 1229a(c)(7)(C)Gv)\( IV) requirement could be read as

different in scope from the 8 C.F.R. § 1003.23(b)(1)

post-departure bar. My majority colleagues embrace

the thinking of the William dissent:

[OJne can reasonably understand

§ 1229a(c)K(7)(CivXTV) to mean that as long

as the qualifying alien files a motion to

reopen before departing the country, the

alien’s subsequent departure from the

United States has no effect on the BIA’s

ability to hear the motion, which is a

decidedly different result than would obtain

under the [post-]departure bar.

William, 499 F.3d at 337-38 (Williams, J., dissenting).

In choosing the position of the William dissent,

the majority concludes that Congress intended to ben-

efit qualifying aliens by allowing the BIA to consider

a motion to reopen even after those aliens have

departed from the United States, whereas all other

aliens would forfeit such motions by departing under

the terms of the bar. But this interpretation is in-

compatible with the next portion of the same

statutory subsection. In addition to excepting do-

mestic violence victims from certain time limitations

“if the alien is physically present in the United States

at the time of filing the motion,” § 1229a(c)(7)(C)(iv)

continues:

The filing of a motion to reopen under this

clause shall only stay the removal of a

qualified alien ... pending the final disposi-

tion of the motion, including exhaustion of

App. 46

all appeals if the motion establishes that the

alien is a qualified alien.

Thus, removal from the United States of a qualifying

domestic violence victim is stayed pending the reso-

lution of the victim’s motion to reopen. For a stay of

removal to have teeth, the alien must be “physically

present” in the United States. Once removal of a

qualifying alien is stayed, the alien will presumably

remain in the United States.’ And if the alien

remains in the United States, the post-departure bar

will never be implicated. Thus, it simply cannot be

correct that the “physically present” language in

§ 1229a(c)(7C)av)IV) “carv[es] out a limited excep-

tion to the general working of the [post-]departure

bar.” William, 499 F.3d at 337. The post-departure

bar does not come into play when removal of a qual-

ifying alien has been stayed.

3

The history of IIRIRA further supports a plain

text reading of § 1229a(c)(6)(A) and (7)(A). Until 1996,

’ Even if an alien agreed to voluntary departure, Dada

allows the alien to withdraw consent to voluntary departure and

remain in the United States. 128 S. Ct. at 2319; see infra Part

I.B. The majority’s interpretation would thus operate to protect

the rare individual who, notwithstanding the stay of removal],

chose to leave the country. It hardly seems likely that this

subgroup of aliens, should such a subgroup exist, was the ob-

ject of Congress’s concern and motivated the inclusion of

§ 1229a(c)7CXivXIV).

App. 47

there existed by statute a post-departure bar to judi

cial review of deportation orders. 8 U.S.C. § 1105a(c)

(1995) (“An order of deportation or of exclusion shall

not be reviewed by any court if the alien ... has

departed from the United States after the issuance of

the order.” (emphasis added) (repealed 1996)). More

over, motions to reconsider and reopen were entirely

creatures of regulation until 1996. William, 499 F.3d

at 330 (majority op.); Azarte, 394 F.3d at 1283. In line

with the statutory post-departure bar to judicial re

view, the Code of Federal Regulations provided at the

time that “[a] motion to reopen or a motion to re-

consider shall not be made by or in behalf of a person

who is the subject of deportation proceedings subse

quent to his departure from the United States.” 8

C.F-R. § 3.2 (1995) (current versions at § 1003.2(d)

(2008), governing motions before the BIA, and

§ 1003.23(b)(1) (2008), governing motions before an

IJ). When Congress enacted IIRIRA in 1996, the

statutory scheme changed substantially.

On point, IIRIRA accomplished two significant

goals. First, the Act repealed § 1105a(c) and granted

circuit courts jurisdiction to review orders of removal.

William, 499 F.3d at 330; see IIRIRA, Pub. L. No. 104-

208, div. C, $ 306, 110 Stat. 3009-546, 3009-607 to 612

(1996) (codified as amended at 8 U.S.C. § 1252): &

U.S.C. § 1252(a)(5). Second, the Act codified the

statutory right of all aliens to file one motion to

reconsider and one motion to reopen. William, 499

F.3d at 330; see 8 U.S.C. § 1229a(c)(6)(A) & (7)(A).

App 124

Again we are driven to one conclusion: Congre

knew how to codify a post-departure bar when it so

elected. Such a bar prohibited ad/ judicial review until

1996. That Congress chose not to include a_ post

departure bar to the filing of motions to reconsider

and reopen when it enacted § 1229a(c)(6)(A) and

(7XA) demonstrates that Conyress did not intend to

authorize such a limitation

At bottom, the government's argument in support

of the validity of the post-departure bar amounts to

this: prohibiting departed aliens from filing motion:

LO reconsider Or reopen) 1s good polit y In its brief, the

government fails to engage in a Chevron analysis and

devotes itself almost entirely to defending the

efficiency of the post-departure bar. According to the

government, the reyulatory bar is consistent with the

Congress’s purpose in passing IIRIRA — “to make it

easicr to deny admission to inadmissible aliens and

easier to remove deportable aliens from the United

States.” H.R Rep No. 104-469, pt. 1, at 157 (1996)

Invalidating the post-departure bar, the government

tells us, would be inconsistent with this congressional

?

purpot Sc.

As an initial matter, the government’s policy

argument presents a non-sequitur. Mercly because

the post-departure bar may be consistent with the

broad purpose of the ITRIRA, it does not follow that

invalidating the regulation is inconsistent with that

PUT PO I

pose of the

able alien

(7A) adva

VO@q) Were Ww ¢ LOA LITIi¢

IIRIRA 1 to facilitate

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need by thi dissent

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CONSISLE

make

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fully

with tnat moal Kacially thes ection

easier Lo remove deportabl Abie because

lymited to one motion to re nsider and one

reopen within an expr time lmitation

cussed Conpre W i iLLent ( Lo the nee

motions to re sider and 1 per but cho

proach dilfe iL from that pr mulgated b

ney Cener Nn & LOO If rus¢ i

alien eekinp » file a mi recol ide!

has already left the United Late the ali

use these motions a imcan f delay rey

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meaning o! a tatute } pian and clear, tt

room left in the interpretive equation !

argument

and they too must be

left out

ul: heltlered cold “'W he 1) thie word QO] i {

unambiguou thi lirst canon 1 “al

judicial maquiry f mm plete Corn al |

(;sermain ().5 244 Agy: 199 ) {

omitted What we wrote / 1]

Moreover imply eCAUSE i itu ne!

Lo facilitale enlorcement dor ot mean that ever!

therein must be interpreted to maximally benelit t

ment and disadvantage the regulated individual. If

Congress's intent, there v wild be litth n to ul

LO Teco! der oO

i reopen il

| '

here “There «iy Ie food Policy reason) raor ‘ Kreps

mp departed ahens from . lA'A9 al Me) DI \ and (ZMAYD

but that determination 1s ley lative in mature and 3

properly made by Congr and not by revulator:

fiat Set a yh id if 1.36 ] quot Lene! Omitted)

at ipreme Court rece! decision in fyada '

Mukasey, 12 5 Ce. water Cau fourthes upport tae

conclusion that the post-departure bar is mconsisten

vith §& 1L2290a(c (OMA) and (7MA) In Jada. th (Court

held that all ahen nave a “statutory right Lo file one

motion to reopen Writing the Latutory Lex (>]

1229 alc) / A | plain msolar a if Pual mbes LO

eacl ahen the rigrt Lo dake Ore motion to reopen

proceeainys iZo 5 oF | Ay HH ou may (.otrt

then rehed upon this conclusion to interpret & C lek

100%3.'2(d). which is functionally mentical to the re

evant portion of § 1006 23(bM 1) and provide that an

alien departure frouta Ohae LJnited State ellect

ithdrawal of his motion to reopen. Given the unam

bigsuou conyvressional command of 122 9Qal( ci 7T MA)

thal cach alien may tile one motion to reopen, the

(Court reasoned that an alien must be permitted le

withdraw con ent to voluntar' ageparture iW nec ary

to afeguard the might to pur Tt thie tatutorils

ruoaranteed motion ld. at qV3IY. Othnerw i! Vbie}

Volunt i! hee | if tit¢ i iT itaor | rb

tain alien can leave the country willinel Witlit @ prescribe

timc lrame bad | | il t}) ‘7 In exchiunve f tine

App. 51

agreeing to voluntarily depart would face a Catch-22

situation incompatible with the clear statutory text.

Either the alien would have to depart the United

States and his motion to reopen would be deemed

withdrawn, or the alien could remain in the United

States in order to obtain a ruling on the motion, thus

staying beyond the voluntary departure period and

risking the loss of eligibility for a potential adjust-

ment of status. This, of course, is the very relief being

sought through the motion to reopen. /d. at 2318. The

Court pointedly noted that Dada had not challenged

the validity of the underlying rule that deems a

motion to reopen withdrawn ii the alien leaves the

United States. /d. at 2320. The validity of § 1003.2(d)

was therefore not at issue in Dada, but the validity of

closely analogous § 1003.23(b)(1) 1s squarely before us

today.

Notably, the Dada Court held that withdrawal of

consent to voluntary departure must be permitted

precisely because § 1229a(c)(7)(A) is clear and unam-

biguous: an alien rust be allowed to file one motion

to reopen. 128 S.Ct. at 2316. In rejecting the

government the expense and burden of deportation, the alien

avoids prolonged detention, chovses the country of destination,

and facilitates the possibility of readmission. /d. at 2314.

“Voluntary departure serves the practical goals of reducing the

costs associated with deporting individuals from the United

States and providing a mechanism for illegal aliens to leave the

country without being subject to the stigma or bars to future

relief that are part of the sanction of deportation.” Azarte, 394

F.3d at 1284.

App. 52

government's contrary position — that an alien is not

entitled to pursue a § 1229a(c)(7)(A) motion following

a voluntary departure — the Court reasoned that. “lilt

would render the statutory right to seck reopening a

nullity in most cases of voluntary departure.” /d. at

2317 (emphasis added). But one inescapable con-

clusion can be drawn from that language: an alien

cannot be forced by regulation to forfeit a motion

guaranteed by statute.

The logie of Dada applies with equal force to

the case before us. Just as the language of

§ 1229a(c)(7 A) is plain, see Dada, 1288S. Ct. at 2316,

the language of § 1229a(c)6)(A) is equally plain: all

aliens have the right to file one motion to reconsider

regardless of whether they have departed from the

United States. As in Dada, Rosillo-Puga cannot be

forced by regulation to forfeit the right to file one

motion to reconsider and one motion to reopen. Be-

cause § 1003.23(b)(1) accomplishes exactly that for-

bidden result, that regulation cannot stand. See

Costello v. LNS, 376 U.S. 120, 127-28 (1967) (“[Courts

should] hesitate long before adopting a construction

of [a statute] which would, with respect to an entire

class of aliens, completely nullify a procedure so

: ; ; : ‘ ; _ 10

intrinsic a part of the legislative scheme.”).”

The majority’s attempt is distinguish Dada is unper

suasive. My colleagues read Dada as affirming the validity of

§ 1003.23(b)(1). Maj. Op. at 1153 n.3 (“The very problem

identified by the Supreme Court in Dada would not exist but for

the validity of the regulation challenged here.”). In fact, the

(Continued on following page)

App. 53

i

My colleagues offer a final reason to deny Rosillo-

Puga’s appeal: His motion was untimely. It is well

established, however, that “[t]he grounds upon which

an administrative order must be judged are those

upon which the record discloses that its action was

based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943);

see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)

(“[A]n agency’s action must be upheld, if at all, on the

basis articulated by the agency itself.”); Cherokee

Nation of Okla. v. Norton, 389 F.3d 1074, 1078 (10th

Cir. 2004); Utahns for Better Transp. v. U.S. Dep't of

Transp., 305 F.3d 1152, 1165 (10th Cir. 2002). Neither

the IJ nor the BIA based its dismissal of Rosillo-

Puga’s motion on timeliness. My colleagues offer no

reason tc depart from the general rule of Chenery. We

Court necessarily assumed the validity of § 1003.23(b)(1), just as

it assumed the validity of § 1003.2(d). This is entirely un-

remarkable, as neither regulation was challenged before the

Court. See Dada, 128 8. Ct. at 2320 (This regulation, however,

has not been challenged in these proceedings, and we do not

consider it here.”). Moreover, the majority places undue reliance

on the BLA’s decision in Matter of Armendarez-Mendez, 241&N

Dec. 646, 655-56 & n.7 (2008). This court. owes no deference to

an agency’s interpretation of a Supreme Court decision. Nor do

we defer to an agency’s interpretation of an unambiguous

statute. Chevron, 467 U.S. at 842-48 (If the intent of Congress

is clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent

of Congress.”).

App. o4

thus may not uphold the BIA’s decision on the ground

of untimeliness

Ii

Although 1 would invalidate the challenged

portion of § 1003.23(b)(1), I note briefly my further

disagreement with the majority’s conclusion that an

IJ lacks sua sponte authority to reconsider or reopen

a removal proceeding after an alien has departed the

United States. Maj. Op. at 25-26. My colleagues reach

this conclusion by invoking the “canon of statutory

construction that, when there is an apparent conflict

between a specific provision and a more general one,

the more specific one governs.” Shawnee Tribe v.

United States, 423 F.3d 1204, 1213 (10th Cir. 2005)

(quotation omitted). In their view, the specific

11 r . . .

This circuit has already determined that the ninety-day

statutory deadline for filing a motion to reopen may be tolled.

See Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002). Ac-

cordingly, it is not a jumsdictional limit and should not be raised

sua sponte. Other circuits are in accord. See Socop-Gonzalez v.

INS, 272 F.3d 1176, 1190-93 (9th Cir. 2001) (en bane); Javorski v.

INS, 232 F.3d 124, 130-34 (2d Cir. 2000). My colleagues appar-

ently assume that the filing deadline contained in § 1229a(cX6\B)

is similarly not a jurisdictional restriction. Cf Pervarz. ov.

Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (holding that the

180-day filing deadline applicable to motions to reopen from

removal orders filed in absentia is not jurisdictional); Borges v.

Gonzales, 402 F.3d 398, 405-06 (3d Cir. 2005):(same); Lopez v

INS, 184 F.3d 1097, 1098 (9th Cir. 1999) (same). But see Anin v.

Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (holding that the 180-

day filing deadline is “jurisdictional and mandatory”)

a

App. 55

provision in § 1003.23(b)(1) that prohibits a departed

alien from filing a motion to reconsider or reopen

“subsequent to his or her departure from the United

States” trumps the general provision authorizing an

“Immigration Judge upon his or her own motion at

any time, ... |to] reopen or reconsider any case in

which he or she has made a decision.” 8 C.F.R

§ 1003.23(b)(1)

Contrary to the majority’s view, there is simply

no conflict between these two provisions. One speaks

to the authority of the IJ, the other to the rights of

aliens. The general provision in the regulation allows

an IJ “at any time” to reopen or reconsider a case.

The post-departure bar, by contrast, says nothing

about the power of an IJ. Rather, it provides that “A

motion to reopen or to reconsider shall not be made by

a person ... subsequent to his or her departure

from the United States.” Under a proper reading of

§ 1003.23(b)(1), although an alien may not move for

reconsideration or reopening following departure, an

Azer . ° sé

The majority also notes in passing that “we do not have

jurisdiction to consider petitioner’s claim that the [IJ] should

have sua sponte reopened the proceedings under [8&8 ©.F.R

§ 1003.23(b)(1)] because there are no standards by which to

judge the agency's exercise of discretion.” Maj. Op. at 25 (quota-

tion omitted). Although that may be true, it has no relevance to

this case. llere, the IJ did not exercise his discretion not to

reconsider or reopen. Quite the contrary, the IJ concluded as a

legal matter that he lacked discretion entirely, given the post-

departure bar. That legal conclusion is reviewable by this court,

see 8 U.S.C. § 1252(a)(2), and it is erroneous. See infra.

App. 56

IJ always retains the discretionary authority to sua

sponte reopen or reconsider a case.

It]

For the foregoing the reasons, | would strike

down the challenged portion of 8 C.F-R. § 1003.23(b)(1)

under the first step of Chevron.” I consider it un-

necessary for us to reach the sua sponte authority of

an IJ to reconsider or reopen Rosillo-Puga’s case, but

were we to reach the issue, | would conclude that the

I.J does possess such authormty. The majority having

concluded otherwise on both counts, I respectfully

dissent

"On point, the BIA is of the view that it can reconsider or

reopen a case sua sponte in “exceptional circumstances” pursu-

ant to 8 C.F.R. § 1003.2 which, as noted, is functionally identical

to the regulation at issue here, except that it applies to the BIA

rather than to the IJ. See, e.g., In re J-J, 21 1 & N Dec. 976, 984

(1997) (citing 8 C.F.R. § 3.2(a) (1997)) (current version at 8

C.FE.R. § 1003.2(a) (1998)): see also Maj. Op. at 26 n.?7.

“ Assuming the challenged portion of § 1903.23(b)1) is

valid, I agree that the regulation applies to Rosillo-Puga, that it

is not arbitrary or capricious as applied, and that it does not

violate due process.

App. 57

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARTIN ROSILLO-PUGA, a/k/a

Martin Puga, a/k/a Martin Rosillo,

Petitioner,

Vv.

ERIC Il. HOLDER, JR.,

United States Attorney General, | No. 07-9564

Respondent

THE AMERICAN IMMIGRATION

LAW FOUNDATION,

Amicus Curiae.

JUDGMENT

(Filed Sep. 15, 2009)

Before LUCERO, ANDERSON, and O’BRIEN,

Circuit Judges.

This case is a petition for review from the Board

of Immigration Appeals and was argued by counsel.

App AR

he petition for review is denied

Entered for the Court,

s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER,

Clerk

App. 59

U.S. Department of Justice Decision of the Board of

Executive Office for {mmigration Appeals

Immigration Review

Falls Church, Virginia 2204]

File: A72 663 412 —Aurora,CO Date: AUG 10, 2007

In re: MARTIN ROSILLO-PUGA a.k.a. Martin Puga

a.k.a. Martin Rosillo

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF

OF RESPONDENT: Rachel E. Rosenbloom, Esquire

ON BEHALF OF DHS: Dani Lisa Page

Deputy Chief Counsel

a

ORDER:

PER CURIAM. The respondent has appealed

from the Immigration Judge’s decision dated May 24,

2007. The Immigration Judge denied the respondent’s

motion to reconsider. The Immigration Judge found

that he lacked jurisdiction to consider the respon-

dent’s motion pursuant to the regulation at 8 C.F.R.

§ 1003.23(b)(1), due to the departure of the respon-

dent from the United States under a final order of

removal. The respondent’s appeal will be dismissed.

We affirm the Immigration Judge’s decision

pursuant to our authority at 8 C.F.R. § 1003.1(e)(5).

The regulation at 8 C.F.R. § 1003.23(b)(1) specifically

provides that “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

App. 60

proceedings subsequent to his or her departure from

the United States.” The Board interpreted identical

regulatory language in Matter of G-N-C, 22 I&N Dec.

281, 288 (BIA 1998). Specifically, the Board found

that it lacked jurisdiction over a motion to reopen

after the respondent’s departure from the United

States pursuant to a final order of deportation under

the regulation at 8 C.F.R. § 1003.2(d), the regulation

governing motions filed before the Board after an

alien’s departure from the United States. See Matter

of G-N-C-, supra. Furthermore, we agree with the

Immigration Judge’s determination that the specific

regulatory language prohibiting motions after the

alien has departed the United States overrides the

more general regulatory language affording the Im-

migration Judge the right to reopen or reconsider sua

sponte. See generally, Navarro-Miranda v. Ashcroft,

330 F.3d 672, 675 (5th Cir. 2003) (finding reasonable

the Board’s determination that the specific regulation

prohibiting motions to reopen after an alien has

departed from the United States overrides the more

general regulation affording the Board authority to

reopen sua sponte); Mansour v. Gonzales, 470 F.3d

1194, 1198 (6th Cir. 2006) (same, citing Navarro

Miranda with approval in concluding that the Board

lacked jurisdiction to consider a motion to reopen

once the alien has left the country). In light of the

foregoing, we find no error in the Immigration

Judge’s determination that he lacked jurisdiction to

consider the respondent’s motion to reconsider after

he departed from the United States under a final

App. 61

order of removal. Accordingly, the respondent

appeal is dismissed.

/s/ _ [Illegible]

FOR THE BOARD

App. 62

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

1961 STOUT ST., RM 1403

DENVER, CO 80294

In The Matter Of: ' Date: May 24, 2007

ROSILLO-PUGA, Martin ) Docket: Denver, CO

Respondent.

File Number: A 72-663-412

APPLICATION: Motion to Reconsider and Re-

scind Removal Order, or in the Alternative to

Reopen Proceedings

ON BEHALF OF THE RESPONDENT:

Rachel E. Rosenbloom, Esq.

Post-Deportation human Rights Project

Center for Human Rights and International!

Justice at Boston College

885 Centre St.

Newton, MA 02459

ON BEHALF OF THE DHS:

Dani Lisa Page

Deputy Chief Counsel

Department of Homeland Security

4730 Paris Street

Denver, Colorado 80239-2804

App. 63

MEMORANDUM AND DECISION

The respondent Martin Rosillo-Puga (“Respon

dent”) is a native and citizen of Mexico who was

admitted as a conditional resident, class CR6, on

July 18, 1995. By order dated August 18, 2003, this

Court ordered Respondent removed from the United

States to Mexico after it found that his conviction

in the Superior Court of Indiana, County of Marion,

for the offense of battery in violation of 49-F 17-9705

CM-071502 of the Indiana criminal code on June 24.

1997 constituted an aggravated felony under INA

§ 10l(a)\(43) and vas removable’ under INA

§§ 237(a)(2M AON) and 237(a)(2)(E)0). Respondent

waived his appeal and the IJ’s decision became final

See 8 C.F.R. § 1003.39. Respondent was thereafter

physically removed to Mexico

On May 7, 2007, Respondent, through counsel,

filed a Motion to Reconsider and Rescind Removal

Order, or in the Alternative to Reopen Proceeding:

t

Respondent acknowledges in his motion that he is

barred from seeking a motion to reconsider or

reopen due to the time constraints of 8&8 C.ER

§ 1003.23(b)(1) (2007). Respondent requests the Im

migration Judge (“IJ”) to exercise his sua sponte

authority under 8 C.F.R. § 1003.23(b)(1) to reconsider

and rescind his order of removal. The Department of

Homeland Security (“DHS”) filed a response on May

14, 2007 opposing the motion and stating this Court

lacks jurisdiction to entertain it

App 64

In most circumstances, an iJ has veneral dis

cretion to reopen and reconsider proceedings pur

suant to & C.F. R. &§ 1003.23(b)(1). Llowever, within the

same subsection of this regulation it specifically

states that “[a] motion to reopen or to reconsider shall

not be made by or on behalf of a person who is the

subject of [removal proceedings] subsequent to his

departure from the United States.” /d. (emphasis

added). This specific provision precludes the IJ to

exercise his general discretion in reopening, and re

considering proceedings under such circumstances

See In Re G-N-C-, 22 I&N Dec. 281, 288 (BIA 1998)

(in interpreting identical language of what is now 8

C.FR. § 1003.2(d), the BIA held that it “lacks juris

diction over a motion to reopen after [a] respondent’s

departure from the United States pursuant to a final

order of deportation”)

The Court acknowledges the well-drafted motion

made by Respondent’s counsel; however, it is not per

suaded by Respondent's arguments that this Court

has jurisdiction to reconsider or reopen his’ pro

ceedings. In his motion, Respondent asserts that the

provision in 8 C.F.R. § 1003.23(b)(1) that permits an

IJ to, “at any time, . reopen or reconsider any case

in which he or she has made a decision” trumps the

later provision in the same regulation which forbids

such motions which are made “on behalf of a person

who its the subject of removal proceedings sub

sequent to his or her departure from the United

States.” In fact, it 1s this Court’s opinion that the

exact opposite is the correct interpretation. The Tenth

App. 65

Circuit has noted that “it is a ‘fundamental canon of

S

statutory construction that, when there is an appar-

ent conflict between a specific provision and a more

general one, the more specific one governs.’” Shawnee

Tribe v. U.S., 423 F.3d 1204, 1213 (10th Cir. 2005)

(quoting U.S. v. Groves, 369 F.3d 1178, 1188 n.5 (10th

Cir. 2004)). In 8 C.F.R. § 1003.23(b)(1), the general

sua sponte authority given to an IJ to reopen and

reconsider proceedings is limited by the more specific

prohibition on making such motions on behalf of a

person who has departed after an order of removal.

See also Navarro-Miranda v. Ashcroft, 330 F.3d 672,

676 (5th Cir. 2003) (holding sua sponte authority is

preempted by this language because, “as a funda

mental rule of statutory interpretation, specific pro-

visions trump general provisions”).

Accordingly, IT IS HEREBY ORDERED that

Respondent’s Motion to Reconsider and Re-

scind Removal Order, or in the Alternative to

Reopen Proceedings is DENIED.

May 24, 2007 /s/ {INegible] = —

DAVIL? CORDOVA

IMMIGRATION JUDGE

App. 66

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARTIN ROSILLO-PUGA, a/k/a

Martin Puga, a/k/a Martin Rosillo,

Petitioner,

v.

ERIC H. HOLDER, JR.,

United States Attorney General,

Respondent. No. 07-9564

AMERICAN IMMIGRATION

COUNCIL; NATIONAL IMMI-

GRATION PROJECT OF THE

NATIONAL LAWYERS GUILD,

Amici Curiae

ORDER

(Filed Dec. 8, 2009)

Before LUCERO, ANDERSON, and O’BRIEN,

Circuit Judges.

Appellant's petition for rehearing is denied.

The petition for rehearing en banc was trans-

mitted to all of the judges of the court who are in

App. 67

regular active service. As no member of the panel and

no judge in regular active service on the court re-

quested that the court be polled, that petition is also

denied.

Amici Curiae American Immigration Council and

National Immigration Project of the National Law-

5

yers Guild’s motion to become amicus is granted. The

o/

brief shall be shown as filed on November 13, 2009.

Entered for the Court,

/s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER.,

Clerk

App 68

8 U.S.C.A. § 1229a [(c)(6)(A) and (7)(A)] Removal

Proceedings

(6) Motions to reconsider

(A) In general

The alien may file one motion to reconsider a

decision that the alien is removable from the

United States.

Motions to reopen

(A) In general

An alien may file one motion to reopen

proceedings under this section, except that

this limitation shall not apply so as to

prevent the filing of one motion to reopen

described in subparagraph (C)(iv)

App. 69

8 C.F.R. § 1003.23 Reopening or reconsidera-

tion before the Immigration Court.

(b)

Before the Immigration Court —

(1) In general. An Immigration Judge may upo!

his or her own motion at any time, or upon motion

of the Service or the alien, reopen or reconsider

any case in which he or she has made a decision,

unless jurisdiction is vested with the Board of

Immigration Appeals. Subject to the exceptions

in this paragraph and paragraph (b)(4), a party

may file only one motion to reconsider and one

motion to reopen proceedings. A motion to recon-

sider must be filed within 30 days of the date of

entry of a final administrative order of removal,

deportation,.or exclusion, or on or before July 31,

1996, whichever 1s later. A motion to reopen must

be filed within 90 days of the date of entry of a

final administrative order of removal, deporta-

tion, or exclusion, or on or before September 30,

1996, whichever is later. 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. Any departure

from the United States, including the deportation

or removal of a person who ts the subject of exclu-

sion, deportation, or removal proceedings, occur-

ring after the filing of a motion to reopen or a

motion to reconsider shall constitute a with-

drawal of such motion. The time and numerical

limitations set forth in this paragraph do not

apply to motions by the Service in removal pro-

ceedings pursuant to section 240 of the Act. Nor

shall such limitations apply to motions by the

App. 70

Service in exclusion or deportation proceedings,

when the basis of the motion is fraud in the

original proceeding or a crime that would sup-

port termination of asylum in accordance with

§ 1208.22(e) of this chapter.