Bolieiro v. Holder, Jr.
2013 U.S. App. LEXIS 19873
| 1st Cir. | 2013Background
- Lucia Maria Bolieiro, an LPR since 1972, was ordered deported in 1992 after a drug conviction and remained in the U.S.; she was removed in 1999 after later proceedings.
- After reentering the U.S. unlawfully, she was arrested in 2011; criminal charges for unlawful reentry were later dismissed in district court.
- On December 28, 2011, with new counsel, Bolieiro filed a motion to reopen her 1992/1999 removal proceedings alleging due-process violations, ineffective assistance of counsel, and that her underlying conviction had been vacated; she also sought relief under VAWA and filed a VAWA self-petition.
- The IJ and then the BIA dismissed her motion for lack of jurisdiction under the agency’s "post-departure bar" regulations (8 C.F.R. §§ 1003.2(d), 1003.23(b)(1)) and Matter of Armendarez‑Mendez, concluding the agency could not entertain motions to reopen filed after departure.
- The First Circuit, relying on its companion opinion in Perez‑Santana, held the post‑departure bar cannot preclude a noncitizen from vindicating the statutory right to file a motion to reopen and remanded for further proceedings; the court did not decide whether equitable tolling or VAWA relief ultimately applies.
Issues
| Issue | Bolieiro's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the post‑departure bar can bar a statutory motion to reopen | Post‑departure regulation conflicts with the plain language of 8 U.S.C. § 1229a(c)(7)(A); she has a statutory right to seek reopening | Regulation validly limits agency jurisdiction after an alien departs; agency may apply bar | Court (following Perez‑Santana) held the post‑departure bar cannot prevent a noncitizen from invoking the statutory right to file a motion to reopen; BIA decision vacated and remanded |
| Whether an untimely (90‑day) motion falls outside the statute and thus subject to post‑departure bar or must be treated as sua sponte | Her motion invokes the statute and the 90‑day deadline may be equitably tolled, so it should be treated as a statutory motion | Untimeliness places the motion outside the statute; agency can treat it as sua sponte and apply the bar | Court refused to adopt alternative agency rationale because BIA relied only on the post‑departure bar; remanded for agency to address timeliness/equitable tolling |
| Whether equitable tolling can excuse the 90‑day deadline | Equitable tolling may apply to permit statutory reopening despite two‑decade delay | Government argued the motion is untimely and thus not entitled to statutory protection | Court noted equitable tolling arguments were not addressed by BIA and must be considered on remand; did not decide tolling applies |
| Applicability of VAWA special‑rule exemptions to post‑departure bar | Motion sought reopening under VAWA special rule (deadlines not apply and movant must be physically present) because Bolieiro was in the U.S. when she filed | Government argued she was present only due to unlawful reentry and that VAWA relief is unavailable/futile | Court held BIA failed to analyze VAWA‑specific provisions and remanded for agency consideration; no decision on VAWA merits |
Key Cases Cited
- Pena‑Muriel v. Gonzales, 489 F.3d 438 (1st Cir.) (addressing agency precedent relied upon by BIA)
- Bead v. Holder, 703 F.3d 591 (1st Cir. 2013) (standard for abuse of discretion review of motions to reopen)
- Aponte v. Holder, 683 F.3d 6 (1st Cir. 2012) (standard for reviewing BIA legal interpretations)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency must defend its action on the grounds it actually relied upon)
- INS v. Ventura, 537 U.S. 12 (2002) (ordinary remand rule; courts may not supply agency rationale)
- Castaneda‑Castillo v. Holder, 638 F.3d 354 (1st Cir. 2011) (remand principles when agency fails to explain decision)