653 F.3d 1153
10th Cir.2012Background
- Contreras-Bocanegra, a Mexican native and U.S. permanent resident since 1989, faced removal after a 2002-2004 drug conviction; IJ ordered removal and the Board affirmed; Contreras was removed to Mexico shortly after the Board’s decision; from Mexico, Contreras filed a timely motion to reopen based on ineffective assistance of counsel; the Board denied the motion on jurisdictional grounds due to the post-departure bar; the en banc court granted review to reconsider Rosillo-Puga and the post-departure bar in light of IIRIRA’s rights to a motion to reopen.
- The IIRIRA amended the INA to codify a statutory right to file one motion to reopen under § 1229a(c)(7) while not codifying the post-departure bar; Congress repealed the pre-IIRIRA departure-review ban and created the 90-day removal window and the right to reopen from abroad; the Attorney General later implemented the post-departure bar at 8 C.F.R. § 1003.2(d) imposing a geographic limitation on reopening motions.
- The statute § 1229a(c)(7) guarantees “one motion to reopen” to every alien, with no geographic restriction expressly stated; the structure of § 1229a(c)(7) omits a location-based limit and Congress did not codify the post-departure bar in the statute.
- Rosillo-Puga v. Holder upheld the post-departure bar as a valid Chevron interpretation; subsequent circuits split, with several circuits invalidating the post-departure bar under Chevron.
- The court overruled Rosillo-Puga and Mendiola to hold that § 1229a(c)(7) plain text requires that the Board consider motions to reopen from abroad, and the post-departure bar cannot stand as a valid regulation.
- The court grants the petition, vacates the panel decision and the Board’s order, and remands for further proceedings consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the post-departure bar conflicts with § 1229a(c)(7). | Contreras argues the bar violates the statutory right to one motion to reopen. | The government maintains the regulation is a valid exercise of rulemaking authority. | Yes; the post-departure bar contravenes § 1229a(c)(7). |
| Whether Chevron step one resolves to reject the regulation given Congress’ amendments. | statutory text leaves no room for geographic limitation | regulation fills gaps in the statute | Yes; the statute plainly guarantees a motion to reopen to all aliens, regardless of departure. |
| Whether Rosillo-Puga and Mendiola should be overruled. | those decisions were wrongly decided and should be overruled | those decisions should control unless overruled | Yes; Rosillo-Puga and Mendiola are overruled. |
| Remedy and scope of decision. | petition should be granted and Board remanded | remand not necessary if regulation invalid | Petition granted; vacate and remand for proceedings consistent with the opinion. |
Key Cases Cited
- Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (post-departure bar sustained under Chevron (overruled))
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (statutory right to file one motion to reopen; Chevron context)
- Prestol Espinal v. Att'y Gen., 653 F.3d 213 (3d Cir. 2011) (post-departure bar invalid under Chevron)
- Martinez Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (post-departure bar invalid under Chevron)
- Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) (cannot approve agency’s limit; Chevron first step)
- Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) (post-departure bar invalid under Chevron (Union Pacific cited))
- Marin-Rodriguez v. Holder, 612 F.3d 591 (9th Cir. 2010) (departure bar cannot block relief abroad)
- William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (majority view supporting post-departure bar reduced to Chevron context)