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

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No. 07-1221

In the Supreine Court of the Anited States

FREDY HUGO PENA-MURIEL, PETITIONER

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSIT1iON

GREGORY G. GARRE

Acting Solicitor General

Counsel of Record

GREGORY G. KATSAS

Acting Assistant Attorney

General

DONALD E. KEENER

PAPU SANDHU

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QU STION PRESENTED

Section 1003.2¢°5)(1) of Title 8, Code of Federal

Regulations, provides that an administrative 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.” The question presented is whether the

Board of Immigration Appeals erred in relying on that

regulation in denying reopening in petitioner’s case.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

Barnhart v. Thomas, 540 U.S. 20 (2003)

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir.

CFTC v. Schor, 478 U.S. 833 (1986)

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) 13

Dada v. Mukasey, No. 06-1181 (June 16, 2008) .... 2,4, 14

De Fariav. INS, 13 F.3d 422 (1st Cir. 1993)

E'strada-Rosales v. INS, 645 F.2d 819 (9th Cir.

INS v. Abudu, 485 U.S. 94 (1988)

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)

INS v. Doherty, 502 U.S. 314 (1992)

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)

Mendez v. INS, 563 F.2d 956 (9th Cir. 1977)

Stone v. INS, 514 U.S. 386 (1995)

Wiedersperg v. INS, 896 F.2d 1179 (9th Cir.

IV

Constitution, statutes and regulations

U.S. Const. Amend. V (Due Process Clause)

Act of Sept.26, 1961, Pub. L. No. 87-301, § 5(a), 75

Stat. 651

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-546:

§ 304(a), 110 Stat. 3009-593

§ BORD), 120 Stat. FIOP-GlS co ccc ccc ce caee 3

Immigration Act of 1990, Pub. L. No. 101-649,

§ 545(c), 104 Stat. 5065

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.

8 U.S.C. 1101(a)(47)(B)Gi)

8 U.S.C.-1108(a)(1) (Supp. V 2005)

8 U.S.C. 1103(a)(3)

8 U.S.C. 1103(g) (Supp. V 2005)

8 U.S.C. 1105a(c) (1976)

8 U.S.C. 1105a(c) (1994)

8 U.S.C. 1229a(c)(7)(A) (Supp. V 2005)

8 U.S.C. 1229a(e)(7)(B) (Supp. V 2005)

8 U.S.C. 1229a(e)(7)(C)(i) (Supp. V 2005)

8 U.S.C. 1252 note (Supp. V 2005)

8 U.S.C. 1252(a)(5) (Supp. V 2005)

8 U.S.C. 1252(d)(1)

Vv

Statutes and regulations—Continued:

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119

Stat. 302

§ 106(a)(1), 119 Stat. 310

§ 106(c), 119 Stat. 311

8 C.F.R.:

Section 3.2

Section 6.2

Section 1003.2(b)(1)

Section 1003.2(c)

Section 1003.2(c)(1)

Section 1003.2(d)

Section 1003.2(d)(1)

Section 1003.3(a)(2)

Section 1003.23(b)(1)

Section 1003.23(b)(3)

Miscellaneous:

17 Fed. Reg. (1952):

27 Fed. Reg. 96-97 (1962)

59 Fed. Reg. 29, 386 (1994)

60 Fed. Reg. 24,574 (1995)

61 Fed. Reg. 18,900 (1996)

Miscellaneous—Continued:

62 Fed. Reg. (1997):

Jn the Supreme Court of the Gnited States

No. 07-1221

FREDY HUGO PENA-MURIEL, PETITIONER

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a)

is reported at 489 F.3d 438. The decisions of the Board

of Immigration Appeals (Pet. App. 1la) and the immi-

gration judge (Pet. App. 12a-15a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 18, 2007. A petition for rehearing was denied on

October 24, 2007. On January 9, 2008, Justice Souter

extended the time within which to file a petition for a

writ of certiorari to and including March 22, 2008 (Sat-

urday), and the petition was filed on March 24, 2008

(Monday). The jurisdiction of this Court is invoked un-

der 28 U.S.C. 1254(1).

2

STATEMENT

1. The Immigration and Nationality Act (INA or the

Act), 8 U.S.C. 1101 et seg., as amended, and the Attor-

ney General’s regulations implementing it permit an

alien to file a motion to reopen proceedings after a final

decision has been rendered by an immigration judge (IJ)

or the Board of Immigration Appeals (BIA or Board).

See 8 U.S.C. 1229a(c)(7)(B) (Supp. V 2005); 8 C.F.R.

1003.23(b)(3) (IJ); 8 C.F.R. 1003.2(c) (BIA). The pur-

pose of a motion to reopen is to present “new facts”

that may bear on an alien’s eligibility for relief. 8 U.S.C.

1229a(c)(7)(B) (Supp. V 2005); see 8 C.F.R. 1008.2(c)(1).

Until 1996, motions to reopen were entirely a crea-

ture of the Attorney General’s regulations. See Dada v.

Mukasey, No. 06-1181 (June 16, 2008), slip op. 9-11. In

1952, shortly after the INA was first enacted, the Attor-

ney General proposed, see 17 Fed. Reg. 9989, 9995, and

then promulgated, see zd. at 11,475, 11,476, a regulation

regarding the effect of an alien’s departure from the

United States on the alien’s ability to file a motion to re-

open. That regulation stated: “A motion to reopen or a

motion to reconsider shall not be made by or in behalf of

a person who is the subject of deportation proceedings

subsequent to his departure from the United States.”

Td. at 11,475 (8 C.F.R. 6.2). The rule that an alien who

has departed from the United States may not obtain

adjudication of a motion to reopen has been reflected in

the Attorney General’s regulations ever since. It is

presently codified at 8 C.F.R. 1003.23(b)(1) with respect

to motions to reopen that are filed with an IJ, and at

8 C.F.R. 1008.2(d)(1) with respect to motions to reopen

filed with the BIA.

In 1990, Congress directed the Attorney General to

place limits on the number of motions to reopen an alien

3

could file, specify a maximum time period for filing such

motions, and submit a report concerning “abuses associ-

ated with the failure of aliens to consolidate requests for

discretionary relief before immigration judges at the

first hearing on the merits.” Immigration Act of 1990,

Pub. L. No. 101-649, § 545(c), 104 Stat. 5066. Regula-

tions implementing those directives were proposed in

1994, see 59 Fed. Reg. 29,386, and again in 1995, see 60

Fed. Reg. 24,574 (extending the filing period from 20

days to 90 days), and were promulgated in final form on

April 29, 1996, see 61 Fed. Reg. 18,900.

On September 30, 1996, Congress enacted the pres-

ent statutory time and numerical limits on motions to

reopen. Illegal Immigration Reform and [Immigrant

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

208, Div. C, § 304(a), 110 Stat. 3009-593. IITRIRA ex-

pressly codified several features of the Attorney Gen-

eral’s recently promulgated regulations, including the

rules that an alien may generally file “one motion to re-

open” and that any such motion must generally be filed

within 90 days following the entry of a final order of re-

moval. Compare IIRIRA § 304(a), 110 Stat. 3009-593

(8 U.S.C. 1229a(c)(7)(A) and (C)(i) (Supp. V 2005)), with

8 C.F.R. 1003.23(b)(1).

In March 1997, the Attorney General promulgated

regulations implementing ITRIRA. 62 Fed. Reg. 10,312.

Between 1962 and IIRIRA’s 1996 enactment, the INA

had provided that an alien who had departed from the

United States after the entry of a final order of removal

could no longer seek judicial review of that order by way

of a petition for judicial review or otherwise. See Act of

Sept. 26, 1961, Pub. L. No. 87-801, § 5(a), 75 Stat. 651

(8 U.S.C. 1105a(c) (1994)). Congress had repealed that

provision when it enacted IIRIRA, see § 306(b), 110

4

Stat. 3009-612, see also Dada, slip. op. 20, and the Attor-

ney General had received comments arguing that, as a

result, the longstanding regulations regarding an alien’s

ability to file a post-departure administrative motion to

reopen were “no longer valid.” 62 Fed. Reg. at 10,321;

see ibid. (observing that commentators had argued that

permitting aliens to file post-departure motions to re-

open would “promote judicial efficiency and economy”).

The Attorney General specifically rejected those con-

tentions. The Attorney General observed that “[n]Jo pro-

vision” of IIRIRA “supports reversing the long estab-

lished rule that a motion to reopen or reconsider cannot

be made in immigration proceedings by or on behalf of

a person after that person’s departure from the United

States.” 62 Fed. Reg. at 10,321. The Attorney General

also stated “that the burdens associated with the adjudi-

cation of motions to reopen and reconsider on behalf of

deported or departed aliens would greatly outweigh any

advantages this system might render.” /bid.

2. Petitioner was admitted to the United States as an

immigrant in 1970. Pet. App. 2a. In 1997, he was con-

victed of domestic assault in Rhode Island state court,

and an IJ ordered him removed to Bolivia. Jbid. Peti-

tioner did not appeal the IJ’s decision to the BIA, and he

left the United States at some point thereafter. /bid.;

see Pet. 6 (stating that petitioner “did depart the United

States [following the 1997 removai order], and has been

living abroad since that time”). In 2002, petitioner’s

1997 conviction was vacated after the victim filed an affi-

davit stating that petitioner “should not have been

charged,” but that “I am not at liberty to explain why.”

Pet. App. 3a.

3. On May 16, 2002, petitioner filed a motion to re-

open his removal proceedings. Pet. App. 14a. The IJ

D

denied that motion, citing the Attorney General’s regu-

lation providing that an alien may not file a motion to

reopen with an IJ after departing from the United

States. Jbid. On February 6, 2003, the BIA adopted and

summarily affirmed the IJ’s decision. /d. at 11a.

4. Petitioner filed a petition for a writ of habeas cor-

pus in the District of Massachusetts. Pet. App. 3a. On

May 11, 2005, the President signed into law the REAL

ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302,

which eliminated habeas corpus jurisdiction to review

orders of removal, and prescribes, subject to one excep-

tion not at issue here, that “the sole and exclusive means

for judicial review of an order of removal” is by way of

a petition for review in the appropriate court of appeals.

§ 106(a)(1), 119 Stat. 310 (8 U.S.C. 1252(a)(5) (Supp. V

2005)). The government moved to transfer the case to

the United States Court of Appeals for the First Circuit

pursuant to Section 106(c) of the REAL ID Act, see 119

Stat. 311 (8 U.S.C. 1252 note (Supp. V 2005)), and the

district court granted the motion. Pet. App. 3a.

5. The court of appeals denied the petition for re-

view. Pet. App. la-10a. It first rejected petitioner’s

contention that the regulation on which the IJ had relied

“was inextricably linked to” the statutory provision that

had, pre-IIRIRA, barred aliens who had departed the

United States from filing a petition for judicial review.

Id. at 4a (citing 8 U.S.C. 1105a(c) (1994)). The court of

appeals explained that because “(t]he Attorney Gen-

eral’s authority to prohibit consideration of motions to

reopen from aliens who have departed the United States

did not originally depend on” that statute, its repeal

“d{id} not abrogate the Attorney General’s authority to

continue to enforce the” regulation. /d. at 5a.

6

The court also rejected petitioner’s assertion that

Congress’s repeal of former Section 1105a(c) “signaled

its intent that the Attorney General should no longer

enforce” the regulation at issue here. Pet. App. 5a. It

noted that petitioner had identified “no statutory lan-

guage that explicitly addresses the issue,” and stated

that, as a result, “we must ‘defer to a reasonable con-

struction by the agency charged with [the INA’s] imple-

mentation.’” bid. (quoting Barnhart v. Thomas, 540

U.S. 20, 26 (2003)). The court determined that peti-

tioner had “misunderst{[ood] * * * the due process con-

cerns expressed in the congressional testimony” by a

former General Counsel of the Immigration and Nation-

alization Service (INS), zd. at 6a, and stated that the

changes made to petition-for-review practice by IIRIRA

did “not remotely support an argument that Congress

also intended, implicitly, to allow post-departure peti-

tions to reopen a closed administrative proceeding,” zd.

at 7a. The court further noted that although “IIRIRA

enacted strict time limits for the filing of motions to re-

open and limited aliens to a single filing, * * * Con-

gress remained silent regarding the long-standing regu-

latory bar” against filing motions to reopen after depart-

ing from the United States. /d. at 7a-8a.

Finally, the court of appeals rejected petitioner’s

contention “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.”

Pet. App. 8a. The court noted that it and other courts of

appeals had stated that “the overturning of a conviction

upon which deportability was premised is an appropriate

basis for reopening administrative proceedings.” /bid.

(quoting De Faria v. INS, 13 F.3d 422, 423 (1st Cir.

1993) (per curiam)). But the court of appeals empha-

7

sized that “the fact that a vacatur may be an ‘appropri-

ate’ basis for reopening a deportation order does not

establish a due process right to such reopening after one

has departed the country,” id. at 8a-9a, and it noted that

all of the decisions cited by petitioner had “involved con-

victions that were vacated before the removal proceed-

ings had terminated and while [the alien] remained in

the country,” 2d. at 9a n.2.

The court of appeals acknowledged “that aliens are

entitled to due process in deportation proceedings,” in-

cluding “notice of the charges against [them], and a fair

opportunity to be heard before an executive or adminis-

trative tribunal.” Pet. App. 9a. But it observed that

petitioner “had been convicted of crimes triggering de-

portation proceedings” at the time of his removal pro-

ceedings, and that he had “made no attempt to vacate

his conviction prior to his departure” from the United

States. bid. The court stated that due process “does

not require continuous opportunities to attack executed

removal orders years beyond an alien’s departure from

the country,” particularly in light of the “strong public

interest in bringing finality to the deportation proceed-

ings.” Id. at 9a-10a.

6. Petitioner filed a petition for panel rehearing,

which the court of appeals denied. Pet. App. 16a-17a. In

that petition, petitioner argued for the first time that

8 U.S.C. 1229a(c)(7)(A) (Supp. V 2005)—which was

added to the INA by IIRIRA and states that “[aJn alien

may file one motion to reopen proceedings under this

section”—“unambiguously provides an alien the right

[to] file a motion to reopen either from within the United

States or abroad.” Pet. App. 17a. The court of appeals

stated that the panel had “not decide[d} whether

8 C.F.R. § 1003.23(b)(1) conflicts with” that statute be-

8

cause it had “[nlot * * * been asked to do so,” and it

refused to “address that issue now on rehearing.” /d. at

17a.

ARGUMENT

The petition for a writ of certiorari seeks review of

three overlapping questions. First, petitioner contends

(Pet. 7-13) that the subsequent vacatur of the criminal

conviction upon which the final order of removal in his

case was based requires that his removal proceeding be

reopened. Second, petitioner asserts (Pet. 13-18) that

the 1996 repeal of the statutory provision that formerly

barred aliens from filing a petition for judicial review

while outside the United States renders invalid the At-

torney General’s longstanding regulations that bar an

alien who has departed from the United States from

filing an administrative motion to reopen.’ Third, peti-

tioner argues (Pet. 18-22) that the failure to grant re-

opening in his particular case violates the Due Process

Clause.

The court of appeals’ decision is correct and does not

conflict with the decisions of any other court of appeals.

In addition, petitioner’s motion to reopen would also fail

for the wholly separate reason that it was untimely un-

der both the INA and the Attorney General’s regula-

tions. Further review is not warranted.

' As petitioner observes, the Fourth Circuit has held that the regu-

lation barring post-departure motions to reopen is invalid because it

conflicts with 8 U.S.C. 1229a(¢e)(7)(A) (Supp. V 2005), which provides

that “[a]n alien may file one motion to reopen proceedings under this

section.” Pet. 18 n.2 (citing Williams v. Gonzales, 499 F.3d 329 (4th Cir.

2007)). The court of appeals expressly declined to consider that argu-

ment because petitioner never advanced it until his petition for rehear-

ing. See zd. at 18a.

9

1. a. Petitioner’s first contention (Pet. 7-13) is that

the vacatur of his 1997 conviction requires that his re-

moval proceedings be reopened. The petition for a writ

of certiorari does not identify the precise basis for that

claim, or even whethe ° it is constitutional or statutory in

nature. Before the court of appeals, however, petitioner

expressly cast the claim as a constitutional one, see Pet.

C.A. Br. 2 (stating that “Because [Petitioner’s] Convic-

tion Has Been Vacated on the Merits, Due Process Re-

quires That it No Longer Serve as the Basis For Re-

moval”), and the court of appeals understood and re-

solved it in those terms. See Pet. App. 8a-9a.

As he did before the court of appeals (see Pet. App.

8a), petitioner cites a number of court of appeals and

BIA decisions that state that “the overturning of a con-

viction upon which deportability was premised is an ap-

propriate basis for reopening administrative proceed-

ings.” Pet. 7 (quoting De Faria v. INS, 13 F.3d 422, 423

(1st Cir. 1993) (per curiam)); see Pet. 7-10. But peti-

tioner makes no attempt to refute the court of appeals’

response that “the fact that a vacatur may be an ‘appro-

priate’ basis for reopening a deportation order does not

establish a due process right to such reopening after one

has departed the country.” Pet. App. 8a-9a. Nor does

petitioner deny that all of the decisions upon which he

relied below “involved convictions that were vacated

before the removal proceedings had terminated and

while [the alien] remained in the country.” /d. at 9a n.2.

b. In this Court, petitioner also cites a number of

decisions in which the Ninth Circuit has held that the

Attorney Generai’s regulations do not deprive an IJ or

the Board of authority to consider a motion to reopen

filed by an alien who was removed from the United

States as a result of a criminal conviction that was sub-

10

sequentiy vacated. See Pet. 10-13 (citing Cardoso-

Tlaseca v. Gonzales, 460 F.3d 1102 (2006), Wiedersperg

v. INS, 896 F.2d 1179 (1990), and E'strada-Rosales v.

INS, 645 F.2d 819 (1981)). Those decisions, however,

involved the proper interpretation of the relevant regu-

lations, rather than their validity. See Cardoso-Tlaseca,

460 F.3d at 1106 n.2 (“Because we hold that the BIA

made a legal error when it determined that the regula-

tion barred [the alien’s| motion to reopen|[,] * * * we

do not decide the issue of the regulation’s validity.”); see

also Estrada-Rosales, 645 F.2d at 820-821 (concluding

that the term “departed” in the regulations is proper!y

understood to be “a ‘legally executed’ departure when

effected by the government,” and holding that “a de-

portion based upon an invalid conviction is * * * not

‘legally executed’”); accord Wiedersperg, 896 F.2d at

1181-1182 (same). In the court of appeals, petitioner aid

not seek relief on the ground that the BIA had misap-

plied the Attorney General’s regulations in denying his

motion to reopen. Accordingly, he has forfeited any en-

titlement to seek reversal of the court of appeals’ judg-

ment, on that ground.

In any event, petitioner’s current motion falls

squarely within the Attorney General’s regulations.

With respect to motions to reopen filed with an IJ, the

regulations provide: “A motion to reopen * * * shall

not be made by or on behalf of a person who is the sub-

ject of removal, deportation, or exclusion proceedings

subsequent to his or her departure from the United

States.” 8 C.F.R. 1003.23(b)(1); accord 8 C.F.R.

1003.2.(d) (similar rule for motions to reopen filed with

the BIA). Because petitioner’s motion expressly ac-

knowledged that he was not currently in the United

11

States, the IJ correctly concluded that it }acked author-

ity to consider it. Pet. App. 15a.

Finally, there is no conflict between the Ninth Cir-

cuit decisions cited above and the decision of the court

below. The theory underlying the Ninth Circuit deci-

sions is that an alien who has been physically removed

from the United States by an act of the government has

not made a “departure” unless that removal was “legally

executed.” See Estrada-Rosales, 645 F.2d at 820; ac-

cord Mendez v. INS, 563 F.2d 956, 958-959 (9th Cir.

1977) (explaining, in the course of adopting a similar

construction of the term “departed” in former 8 U.S.C.

1105a(c) (1976), that a contrary interpretation would

“thwart the jurisdiction of this court in a case where the

alien had been ‘kidnaped’ and removed”).* Here, in con-

trast, petitioner left the United States on his own initia-

tive. After the I.J ordered him removed, petitioner could

have—but did not—seek further review or a stay of that

order, first from the BIA and then from the appropriate

court of appeals. Cf. Cardoso-Tlaseca, 460 F.3d at 1104

(noting that alien had “timely appealed” the IJ’s order

of removal to the BIA); Wiedersperg, 896 F.2d at 1180

(same); E'strada-Rosales, 645 F.2d at 820 (stating that

the alien had been deported “after * * * unsuccess-

fully attempt[ing] to obtain a stay”). Nor did peti-

tioner—again, unlike the aliens in all of the Ninth Cir-

cuit decisions upon which he relies—seek to vacate his

* In addition to Mendez, petitioner cites a variety of other pre-

ITRIRA decisions that involved whether there were circumstances in

which an alien who was no longer physically present in the United

States could file a petition for judicial review notwithstanding former

8 U.S.C. 1105a(c) (1976). See Pet. 10-11. That issue is not presented

here. And because Section 1105a(c) was repealed in 1996, it lacks any

prospective significance as well.

12

criminal conviction at any point before his departure

from the United States. See Cardoso-Tlaseca, 460 F.3d

at 1104; Wiedersperg, 896 F.2d at 1180; Estrada-Ro-

sales, 645 F.2d at 820. In fact, petitioner made no at-

tempt to have his conviction vacated until March 2002,

more than four years after the IJ ordered him removed.

2. Petitioner also renews his contention (Pet. 13-18)

that the regulations barring a post-departure motion to

reopen are no longer valid after the repeal of former

8 U.S.C. 1105a(c) (1994). The court of appeals correctly

rejected that contention, and petitioner has not asserted

that its holding on this point conflicts with the decisions

of another court of appeals.

The Attorney General has been granted broad au-

thority to interpret the INA and issue regulations to

carry out his authority. See 8 U.S.C. 1103(a)(1) and (3),

(g) (2000 & Supp. V. 2005). The rule that an alien who

has departed from the United States may not pursue

further administrative relief by way of a motion to re-

open has been part of the Attorney General’s regula-

tions since 1952, nine years before the initial enactment

of the now-repealed statute with which petitioner erro-

neously contends that the regulations are “inextricably

linked” (Pet. 16). See pp. 2-4, supra.’ Accordingly, “the

removal of that statutory language by IIRIRA does not

abrogate the Attorney General’s authority to continue to

* Petitioner errs in asserting (Pet. 16) that the regulations governing

motions to reopen assumed their current language shortly after the

enactment of the legislation that first enacted former 8 U.S.C. 1105a(c)

(1994). To the contrary, the pertinent language of the redesignated

regulation that took effect on January 22, 1962, is identical to that con-

tained in the 1952 regulation. Compare 17 Fed. Reg. at 11,475, 11,476

(promulgating 8 C.F.R. 6.2), with 27 Fed. Reg. 96-97 (1962) (promulgat-

ing 8 C.F.R. 3.2).

13

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

App. 5a.

Petitioner contends that the Attorney General’s deci-

sion to retain the regulations following IIRIRA’s enact-

ment is inconsistent with Congress’s “overall goal of

balancing more effective removal procedures with the

demands of due process.” Pet. 14; see Pet. 15, 17-18.

This Court, however, has held “that principles of Chev-

ron deference are applicable to this statutory scheme.”

INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Ac-

cordingly, because the INA itself does not speak directly

to the question at hand, the only remaining question is

whether the regulations are based “on a permissible

construction of the statute.” Chevron U.S.A. Inc. v.

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

The Attorney General’s rule that an alien who has

departed from the United States may not seek to reopen

the removal proceeding that precipitated that departure

is entirely reasonable. Its premise is that because the

whole purpose of the administrative proceedings is to

effect the alien’s removal from the United States, those

proceedings are properly deemed terminated if the alien

departs.

Nor did the Attorney General act unreasonably in

determining that Congress’s decision in IIRIRA to re-

peal the statutory provision that had previously pre-

vented aliens from pursuing petitions for judicial review

from abroad did not require a change with respect to

motions to reopen. As the court of appeals explained,

the repeal of the petition-for-review provision was part

and parcel of Congress’s efforts to expedite the rernoval

of removable aliens from the United States while still

“protecting the alien’s first opportunity to challenge a

deportation order in court.” Pet. App. 7a (emphases

14

added). But “[tjhat change does not remotely support

an argument that Congress also intended, implicitly, to

allow post-departure petitions to reopen a closed admin-

istrative proceeding,” ibid.(emphases added), particu-

larly in light of the “disfavor[]” in which such motions

are held, /NS v. Doherty, 502 U.S. 314, 328 (1992), and

the longstanding nature of the Attorney General’s con-

trary regulations, see Stone v. INS, 514 U.S. 386, 398

(1995) (stating that Congress is presumed to be aware of

“the longstanding view(s} of the INS” when it makes

amendments to the INA); CFTC v. Schor, 478 U.S. 838,

846 (1986) (“[W]hen 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 persua-

sive evidence that the interpretation is the one intended

by Congress.”) (internal quotation marks and citations

omitted)).‘

3. Petitioner’s final contention is that, in light of the

“specific” (Pet. 18) and “unique” (Pet. 22) facts of his

particular case, his continued exclusion from the United

States violates the Due Process Clause. The court of

appeals correctly rejected that factbound claim, and its

* In Dada v. Mukasey, No. 06-1181 (June 16, 2008), the Court con-

cluded that there was an “untenable conflict between” various statutory

and regulatory provisions governing voluntary departure and motions

to reopen, which it resolved by holding that “to safeguard the right to

pursue a motion to reopen for voluntary departure recipients, the alien

must be permitted to withdraw, unilaterally, a voluntary departure

request before expiration of the departure period.” Jd. at 18-19.

Although the Court suggested that “(al more expeditious solution [to

that conflict] * * * might be to permit an alien who has departed the

United States to pursue a motion to reopen,” id. at 19-20, this case pre-

sents no conflict to resolve because petitioner neither sought nor was

granted voluntary departure in connection with the 1997 removal order.

15

decision does not conflict with any decision of this Court

or another court of appeals.

As the court of appeals explained (Pet. App. 9a), the

Due Process Clause entitled petitioner to “notice of the

charges against him, and a fair opportunity to be heard

before an executive or administrative tribunal.” Accord

Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598

(1953). Petitioner was ordered removed after a hearing

before an IJ, and he does not contend that there was

anything procedurally defective about that hearing.

Petitioner could have filed an administrative appeal to

the BIA, but he failed to do so. Pet. App. 2a. As a re-

sult, the IJ’s order automatically converted into a final

order of removal, see 8 U.S.C. 1101(a)(47)(B)(ii), and

petitioner lost his ability to seek judicial review in the

appropriate court of appeals, see 8 U.S.C. 1252(d)(1)

(stating that “[a] court may review a final order of re-

moval only if * * * the alien has exhausted all adminis-

trative remedies available to the alien as of right”). Pe-

titioner then chose to depart from the United States on

his own accord and without seeking a stay of removal,

and he did so despite the Attorney General’s longstand-

ing regulations providing that an alien who so departs

may not file a later motion to reopen his removal pro-

ceedings. As the corrt of appeals correctly explained

(Pet. App. 9a-10a), “[dJue process does not require con-

tinuous opportunities to attack executed removal orders

years beyond an alien’s departure from the country.”

See INS v. Abudu, 485 U.S. 94, 107 (1988) (noting the

“strong public interest in bringing litigation to a close as

promptly as is consistent with the interest in giving the

adversaries a fair opportunity to develop and present

their respective cases.”).

16

4. There is an additional reason why further review

is not warranted in this case. The INA provides that,

subject to certain exceptions not at issue here, a motion

to reopen “shall be filed within 90 days of the date of

entry of a final administrative order of removal.”

8 U.S.C. 1229a(c)(7)(C)(i) (Supp. V 2005); accord 8

C.F.R. 1003.2(b)(1). Because petitioner did not appeal

the IJ’s August 14, 1997, decision to the BIA, see Pet.

App. 18a-14a, that decision converted automatically into

a final order of removal 30 days later, see 8 U.S.C.

1101(a)(47)(B)(ii); 8 C.F.R. 1003.3(a)(2). The motion to

reopen at issue here was not filed until May 2002, more

than four years after the expiration of the 90-day dead-

line for filing a motion to reopen. Pet. App. 14a. Al-

though the court of appeals did not rely upon the un-

timeliness of petitioner’s motion in denying the petition

for judicial review, it provides an additional reason why

the result in petitioner’s case would be exceedingly un-

likely to change even were this Court to grant review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Acting Solicitor General

GREGORY G. KATSAS

Acting Assistant Attorney

General

DONALD E. KEENER

PAPU SANDHU

Attorneys

JUNE 2008