604 F. App'x 128
3d Cir.2015Background
- Cordon-Ramirez, a Guatemalan national, entered the U.S. without inspection and conceded removability; IJ denied further continuances and granted voluntary departure.
- He initially forfeited voluntary departure by appealing, but the BIA reinstated voluntary departure and appended a notice that filing a petition for judicial review would automatically terminate voluntary departure under 8 C.F.R. § 1240.26(i).
- Cordon-Ramirez filed a timely petition for review challenging only the validity of the regulation that terminates voluntary departure upon filing for judicial review; he did not contest removability or the denial of the continuance.
- The regulation provides that a grant of voluntary departure terminates automatically when a petition for review or other judicial challenge is filed, and an alternate removal order takes effect (with narrow exceptions).
- He argued the regulation conflicts with 8 U.S.C. § 1252(a)(2)(D) and § 1229c(f) by penalizing or denying judicial review, and alternatively that the regulation is unreasonable under Chevron.
- The Third Circuit denied the petition, concluding Patel foreclosed the challenge and that the regulation is a permissible, reasonable accommodation under Chevron.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1240.26(i) unlawfully terminates voluntary departure when an alien files a petition for review | Cordon-Ramirez: the regulation effectively denies or severely penalizes judicial review and conflicts with statutes protecting review of constitutional and legal claims | Government/BIA: regulation implements a permissible quid pro quo in voluntary departure and is authorized by statute limiting eligibility and agency rulemaking | The court held the regulation is valid; Patel controls and the regulation is reasonable under Chevron |
| Whether statutes (8 U.S.C. § 1252(a)(2)(D) and § 1229c(f)) preclude the regulation | Cordon-Ramirez: these statutes protect judicial review or limit preclusion of review as to voluntary departure | Government: statutes permit regulation of voluntary departure eligibility and bar review of regulations under § 1229c(e) | The court held the statutes do not bar the regulation; statutory scheme is silent or permissive and supports agency action |
| Whether the regulation is unreasonable under Chevron | Cordon-Ramirez: if statutes are ambiguous, the agency’s termination rule is an unreasonable penalty on review rights | Government: regulation reasonably balances policy — voluntary departure is quid pro quo and incompatible with pursuing judicial review while retaining departure benefits | The court held the regulation is a reasonable agency interpretation and survives Chevron deference |
| Whether the court should remand for an agency precedential interpretation before deciding | Cordon-Ramirez: court should direct BIA to issue a precedential opinion interpreting statutes first | Government/BIA: agency already interpreted the statute via the regulation | The court held no remand required; the regulation is the agency’s interpretation and is being reviewed now |
Key Cases Cited
- Patel v. Attorney General, 619 F.3d 230 (3d Cir. 2010) (upholding automatic termination of voluntary departure on filing of judicial challenge)
- Dada v. Mukasey, 554 U.S. 1 (2008) (describing voluntary departure as a quid pro quo and permitting automatic termination upon motions to reopen)
- Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (concluding 8 C.F.R. § 1240.26(i) is reasonable under Chevron)
- Hachem v. Holder, 656 F.3d 430 (6th Cir. 2011) (upholding regulation as reasonable under Chevron)
- Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency interpretations)