Appendix — Pena-Muriel v. Mukasey (No. 07-1221)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 05-1937

[Filed June 13, 2007]

FREDY HUGO PENA-MURIEL,

Petitioner,

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ALBERTO GONZALES,

ATTORNEY GENERAL,

Respondent.

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ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Ronald Olen, for petitioner.

Papu Sandhu, Senior Litigation Counsel, Michael

J. Sullivan, U.S. Attorney, Frank Crowley, Special

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Assistant U.S. Attorney, Peter D. Keisler, Assistant

Attorney General, and David M. McConnell, Deputy

Director, on brief for respondent.

LIPEZ, Circuit Judge. Noting that a court has

now vacated the criminal conviction on which his

removal proceedings were premised, Fredy Hugo Pena-

Muriel asks us to vacate the Bureau of Immigration

Appeals’ (“BIA”) decision refusing to reopen his

removal proceedings. Pena-Muriel argues that a

change in immigration law or, alternatively, principles

of due process require such a reopening, even though

he left the country before he petitioned the government

to reopen his deportation proceedings. We reject his

arguments and deny the petition for review.

I.

Pena-Muriel, a native and citizen of Bolivia, was

admitted to the United States in 1970, when he was

less than two years old. After residing in the United

States as a lawful permanent resident for twenty-

seven years, Pena-Muriel was convicted of domestic

assault in February 1997 under R.I. Gen. Laws §§ 11-

5-3 and 12-29-5; he received a one-year suspended

sentence and probation. As a result of his conviction,

Pena-Muriel was placed in removal proceedings. See 8

U.S.C. § 1227(a)(2)(A)(iii) (providing for deportation of

aliens convicted of an aggravated felony); and id.

§ 1227(a\(2)E)G) (same for crimes of domestic

violence). An Immigration Judge (“IJ”) ordered Pena-

Muriel removed to Bolivia in August 1997. Pena-

Muriel neither applied for rehef from the order nor

appealed the IJ’s decision. He subsequently left the

United States.

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In March 2002, Pena-Muriel’s Rhode Island

conviction was vacated on the basis of an affidavit

from the victim stating that Pena-Muriel “should not

have been charged” without further elaboration. The

victim simply said: “I am not at liberty to explain

why.” Shortly thereafter — but roughly five years after

his departure from the United States — Pena-Muriel

moved to reopen his removal proceedings based on the

vacatur of his conviction. The IJ denied the motion to

reopen, citing 8 C.F.R. § 3.23(b)(1) (now designated at

8 C.F.R. § 1003.23(b)(1)), which states: “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.” (emphasis

added). The BIA summarily affirmed the IJ’s decision

in February 2003.

Months later, Pena-Muriel filed a petition for a writ

of habeas corpus in the District of Massachusetts.

Upon the government’s motion, the case was

transferred to the First Circuit as a petition for review

pursuant to section 106(c) of the REAL ID Act of 2005,

Pub. L. No. 109-13, div. B, 119 Stat. 231. See

Alexandre v. U.S. Att’y Gen. , 452 F.3d 1204, 1206 (11th

Cir. 2006) (“Section 106 of the REAL ID Act amended

8 U.S.C. § 1252(a) so that a petition for review filed

with the appropriate court is now an alien’s exclusive

means of review of a removal order. While limiting the

avenues of judicial review, the REAL ID Act expanded

courts of appeals’ jurisdiction to consider constitutional

and legal questions presented in a petition for review.

§ 1252(a)(2)(D). Congress believed that ‘[b]ly placing all

review in the courts of appeals, [the REAL ID Act]

would provide an ‘adequate and effective’ alternative

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to habeas corpus.” (quoting 151 Cong. Rec. H2813-01)

(citation omitted)).

Pena-Muriel now argues that Congress abrogated

the regulation precluding consideration of a motion to

reopen after an alien has departed the country when

it passed the Illegal Immigration Reform and

Immigrant Responsibility Act (“ITRIRA”) in 1996, Pub.

L. No. 104-208, 110 Stat. 3009 (1996) (codified as

amended in scattered sections of 8 U.S.C.). IIRIRA

amended the Immigration and Naturalization Act

(“INA”), in relevant part, by removing 8 U.S.C.

§ 1105a(c) (1994) (repealed 1996), which stated: “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.” Describing 8

C.F.R. § 1003.23(b)(1) as “linked” to this statutory

provision, Pena-Muriel argues that the deletion of

§ 1105a(c) invalidated the regulation. Alternatively,

Pena-Muriel argues that allowing his deportability to

be premised on a vacated conviction violates his Fifth

Amendment due process rights.

II.

A. The Statutory Claim

The premise of Pena-Muriel’s statutory claim — that

the regulation on which the BIA based its dismissal

was inextricably linked to the language of the

superseded statute — is wrong. At the time the

regulation was adopted, there was no statutory

authority for a motion to reopen. See INS v. Doherty,

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502 U.S. 314, 322 (1992)." Instead, the regulation arose

from the Attorney General’s broad discretion to

regulate relief from deportation orders. See Goncalves

v. INS, 6 F.3d 830, 832 (1st Cir. 1993) (recognizing

that “Congress intended the Attorney General to have

considerable leeway in working out the precise

procedures for determining contested issues related to

deportation and ‘discretionary relief”). The Attorney

General’s authority to prohibit consideration of

motions to reopen from aliens who have departed the

United States did not originally depend upon the

statutory language in § 1105a(c). Thus, the removal of

that statutory language by ITRIRA does not abrogate

the Attorney General’s authority to continue to enforce

the limitations of 8 C.F.R. § 1003.23(b)(1).

Pena-Muriel also argues that, by deleting the

language of § 1105a(c), Congress signaled its intent

that the Attorney General should no longer enforce 8

C.F.R. § 1003.23(b)(1). The Attorney General counters

that the statutory change signals no such intention.

The parties point to no statutory language that

explicitly addresses the issue. As the Supreme Court

has stated, where a statute is silent or ambiguous on

the issue at hand, we must “defer to a reasonable

construction by the agency charged with its

implementation.” Barnhart v. Thomas, 540 U.S. 20, 26

(2003) (citing Chevron U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 843 (1984)).

' With IIRIRA’s enactment, motions to reopen were transformed

from a regulatory to a statutory form of relief. See Azarte v.

Ashcroft, 394 F.3d 1278, 1283-84 (9th Cir. 2005) (discussing

IIRIRA’s codification of the reopening procedure).

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In challenging the reasonableness of the Attorney

General’s interpretation of the INA amendments as

they relate to the reopening issue, Pena-Muriel cites

due process concerns expressed during testimony

before the House Judiciary Committee preceding

IIRIRA’s passage:

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.

Removal of Criminal and Illegal Aliens: Hearing

Before the Subcomm. 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).

Pena-Muriel argues that Congress, motivated by due

process concerns to reinstate judicial review despite an

alien’s departure, would be similarly motivated to

permit motions to reopen administrative proceedings

by persons subject to removal, deportation, or

exclusion proceedings after they have left the country.

Pena-Muriel misunderstands the context of the due

process concerns expressed in the congressional

testimony. Prior to IIRIRA, “an alien secking review of

a deportation order was entitled to an automatic stay

pending the completion of that review.” Arevalo v.

Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003). ITRIRA “altered

that paradigm,” instead “requir[ing] a review-seeker to

ask the reviewing court for a stay of removal,” id., and

raising the standards that must be met in order to

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receive such a stay. See Reno v. American-Arab Anti-

Discrim. Comm., 525 U.S. 471, 475 (1999) (noting that

IIRIRA “repealed the old judicial-review scheme set

forth in § 1105a and instituted a new [land

significantly more restrictive[} one”). Because this

change would result in the deportation of many aliens

while they were awaiting judicial review, Congress

amended the INA to allow these aliens to continue

litigating their appeals from abroad. See Tapia Garcia

v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001)

(recognizing, in this limited context, that “deportation

no longer forecloses judicial review”).

Understood against this background, the testimony

cited by Pena-Muriel does not advance his position.

Indeed, the concern expressed about “multiple layers

of judicial review” reflects an intent to reinforce the

finality of removal decisions. With the amendments to

the INA, Congress allowed post-departure appeals of

the BIA’s original order of deportation, thereby

protecting the alien’s first opportunity to challenge a

deportation order in court. That change does not

remotely support an argument that Congress also

intended, implicitly, to allow post-departure petitions

to reopen a closed administrative proceeding.

The government also points out that ITRIRA

enacted strict time limits for the filing of motions to

reopen and limited aliens to a single filing. See Azarte

uv. Ashcroft, 394 F.3d 1278, 1286 (9th Cir. 2005) (noting

that before IIRIRA “motions to reopen were never

time-barred”); Sidikhouya v. Gonzales, 407 F.3d 950,

951-52 (8th Cir. 2005) (explaining that ITRIRA allows

aliens to file a “single motion to reopen at the

conclusion of removal proceedings”). Yet, Congress

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remained silent regarding the long-standing

regulatory bar imposed by 8 C.F.R. § 1003.23(b)(1).

Citing Supreme Court precedent, the government

argues that “when Congress revisits a statute giving

rise to a longstanding administrative 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.” Commod. Futures Trading

Comm'n v. Schor, 478 U.S. 833, 846 (1986) (quoting

NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974)).

The government’s insistence that the Attorney

General’s interpretation was the one intended by

Congress may be overreaching. Nevertheless, this

precedent supports the reasonableness of the Attorney

General’s interpretation of the effect of the statutory

change on the regulatory bar imposed by 8 C.F.R.

§ 1003.23(b)(1) on motions to reopen.

B. The Due Process Claim

Pena-Muriel argues that allowing his deportation

order to stand on the basis of a criminal conviction

that has since been vacated violates his constitutional

right to due process. We disagree.

Pena-Muriel cites a variety of cases for the

principle that “the overturning of a conviction upon

which deportability was premised is an appropriate

basis for reopening administrative proceedings.” De

Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also

Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir.

2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29

(10th Cir. 2005). However, the fact that a vacatur may

be an “appropriate” basis for reopening a deportation

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order does not establish a due process right to such

reopening after one has departed the country.”

It is well-established that aliens are entitled to due

process in deportation proceedings. See Reno v. Flores,

507 U.S. 292, 306 (1993); Choeum v. INS, 129 F.3d 29,

38 (1st Cir. 1997). In this context, due process requires

that the alien receive notice of the charges against

him, and a fair opportunity to be heard before an

executive or administrative tribunal. Choeum, 129

F.3d at 38. Pena-Muriel received due process in his

deportation proceedings. At the time of his departure,

Pena-Muriel had been convicted of crimes triggering

deportation provisions. His removal proceeding came

to a lawful conclusion before his conviction was

vacated. With the benefit of appropriate notice, he

received a hearing before an IJ and the opportunity for

an administrative appeal to the BIA. He waived an

appeal to the BIA after he was ordered removed. He

made no attempt to vacate his conviction prior to his

departure; and he voluntarily left the country. He

makes no claim that the IJ’s removal order in 1997

was invalid or constitutionally infirm.

Now Pena-Muriel seeks to reopen proceedings that

ended roughly ten years ago, on the basis of a vacatur

that occurred five years after he voluntarily removed

himself from the country. Due process does not require

continuous opportunities to attack executed removal

*In addition, Pena-Muriel’s situation is distinguishable from these

cases because each of them involved convictions that were vacated

before the removal proceedings had terminated and while cach

petitioner remained in the country.

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orders years beyond an alien’s departure from the

country. Indeed, there is a strong public interest in

bringing finality to the deportation process. See Baez

v. INS, 41 F.3d 19, 24 (Ist Cir. 1994) (noting

“Congress’s intention to eliminate excessive appeals

and lend finality to the deportation process”).

Iil.

For the foregoing reasons, we deny the petition for

review.

So ordered.

APPENDIX B

U.S. Department of Justice

Executive Office for lmmigration Review

Falls Church, Virginia 22041

DECISION OF THE BOARD OF

IMMIGRATION APPEALS

File: A30-663-990 - Boston

Date: FEB 6, 2003

In re: PENA-MURIEL, FREDY HUGO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Watt Jr., Robert D.,

Esquire

ORDER:

PER CURIAM: The Board affirms, without opinion,

the results of the decision below. The decision below is,

therefore, the final agency determination. See 8 C.F.R.

§ 3.1(e)(4..

/s/

FOR THE BOARD

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

BOSTON, MASSACHUSETTS

[Dated: June 29, 2002]

[File: A30 663 990]

In the Matter of

Fredy Hugo PENA-MURIEL,

Respondent.

IN REMOVAL PROCEEDINGS

CHARGE: Section 237(a)(2)(E)(i) of the Immigration

and Nationality Act (“the Act”) [8 U.S.C.

§ 1227(a)(2)(E\(i)] - Convicted of a Crime

of Domestic Violence, a Crime of

Stalking, or a Crime of Child Abuse,

Child Neglect, or Child Abandonment

APPLICATION: Motion to Reopen

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ON BEHALF OF RESPONDENT

Robert D. Watt, Jr.

84 Ship Street

Providence, RI 02903

ON BEHALF OF SERVICE:

Assistant District Counsel

Trial Attorney Unit - INS

JFK Federal Bldg., Rm. 425

Boston, Massachusetts 02203

DECISION OF THE IMMIGRATION JUDGE

Procedural History

On July 17, 1997, the Immigration and

Naturalization Service (“the Service”) personally

served Respondent with a Notice to Appear (“NTA”).

See Exhibit 1. In the NTA, the Service alleged that

Respondent, a native and citizen of Bolivia, was

admitted to the United States at or near Miami,

Florida on or about September 27, 1970 as an

immigrant. See id. The Service further alleged that on

February 19, 1997, Respondent was convicted in

Providence District Court, Providence, Rhode Island

for the offense of Domestic Assault in violation of R.I.

Gen. Laws §§ 11-5-3, 12-29-5. See id. For this offense,

Respondent received a one year suspended sentence.

See id. Accordingly, the Service charged Respondent

with being removable pursuant to section

237(a)(2)(E)(i) of the Act. See id.

The Court held master calender hearings on July

31, 1997 and August 14, 1997. At the hearing on

August 14, 1997, Respondent submitted written

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pleadings in which he admitted factual allegations #1-

5 contained in the NTA, conceded removability as

charged, designated Bolivia as the country for

deportation purposes, and requested time to appeal his

state criminal conviction. See Exhibit 2. As evidence of

Respondent’s semovability, the Service presented the

Court with a certified copy of Respondent’s criminal

record. See Exhibit 3. Based on Respondent’s

admissions, the Court ordered Respondent be removed

to Bolivia. No appeal has ever been filed in this case.

On May 16, 2002, Respondent, through counsel,

filed a motion to reopen his removal proceedings. In

his motion, Respondent asserts that the Domestic

Assault conviction that served as the basis for

removability has been vacated and dismissed.’ As

such, Respondent requests that. the Court reopen his

removal proceedings and rescind the order of removal.

As of the date of this decision, the Service has not

filed a response to Respondent’s motion to reopen.

Therefore, Respondent’s motion will be deemed

unopposed. See 8 C.F.R. § 3.32(b)(1)Gv)(2002); Local

Operating Procedure # 3.4.

‘In support of his motion, Respondent submitted certified copies

of the following documents: (1) Order of the District Court, Sixth

Division, State of Rhode Island vacating Respondent’s pleas of

nolo contendre; (2) Dismissal by Prosecution; and (3) Affidavit of

Respondent’s girlfriend, the alleged victim of the Domestic Assault

offense.

Il, Law

The Court may reopen a case unless jurisdiction is

vested with the Board of Immigration Appeals. 8

C.F.R. § 3.23(b)(1) (2002). A motion to reopen must be

filed within 90 days of the date of entry of the final

administrative order of removal, deportation, or

exclusion, or on or before September 30, 1996,

whichever is later. 8 C.F.R. § 3.23(b)(1); INA

§ 240(d)(6)(C)(2002). A motion to reopen shall not be

made by or on behalf of a person who is the subject of

removal, deportation, or exclusion proceedings

subsequent to his or her departure from the United

States. 8 C.F.R. § 3.23(b)(1).

lil. Analysis

In the motion to reopen, Respondent’s counsel

states that Respondent is not currently residing in the

United States. Given that Respondent departed the

United States after he was ordered removed, the Court

no longer has jurisdiction to consider motions to

reopen made on his behalf. See 8 C.F.R. § 3.23(b)(1).

ORDER

IT IS ORDERED that Respondent’s Motion to

Reopen removal proceedings be, and the same is

hereby DENIED FOR LACK OF JURISDICTION.

6/29/02 /s/

Date WILLIAM P. JOYCE

United States Immigration Judge

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 05-1937

[Filed October 24, 2007]

FREDY HUGO PENA-MURIEL,

Petitioner,

v.

ALBERTO GONZALES,

ATTORNEY GENERAL,

Respondent.

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Before Boudin, Chief Judge, Campbell, Senior Circuit

Judge, and Lipez, Circuit Judge.

ORDER OF THE COURT

In this petition for panel rehearing, petitioner

argues for the first time that the text of 8 U.S.C.

§ 1229a(cX7)(A), a provision added to the Illegal

Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) in 1996, which states that “[a}]n 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

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described in subparagraph (C)(iv),” unambiguously

provides an alien the right file a motion to reopen

either from within the United States or abroad.

When this case was presented té the panel,

petitioner presented only one statutory argument,

asserting that Congress’s deletion of 8 U.S.C.

§ 1105a(c) when passing ITRIRA removed the statutory

foundation for the regulation barring motions to

reopen from being filed outside of the United States, 8

C.F.R. § 1003.23(b)(1). We rejected this argument. Not

having been asked to do so, we did not decide whether

8 C.F.R. § 1003.23(b)(1). We rejected this argument.

Not having been asked to do so, we did not decide

whether 8 C.F.R. § 1003.23(b)(1) conflicts with 8

U.S.C. § 1229a(c)(7). We will not address that issue

now on rehearing. See American Policyholders Ins. Co.

u. Nyacol Prods., 989 F.2d 1256, 1264 (1st Cir. 1993)

(“[A] party may not raise new and additional matters

for the first time in a petition for rehearing.”).

The petition for panel rehearing is denied.

By the Court:

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 05-1937

[Entered October 24, 2007]

FREDY HUGO PENA-MURIEL,

Petitioner,

Vv.

ALBERTO GONZALES,

ATTORNEY GENERAL,

Respondent.

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Before Boudin, Chief Judge, Torruella, Lynch, Lipez

and Howard, Circuit Judges.

ORDER OF THE COURT

The petition for rehearing en banc having been

submitted to the active judges of this court and a

majority of the judges not having voted that the case

be heard en banc, it is ordered that the petition for

rehearing en banc be denied.

By the Court: