Gibriel Lari v. Eric Holder, Jr.
2012 U.S. App. LEXIS 20302
5th Cir.2012Background
- Lari, a Ghanaian citizen, entered the United States in May 2010 and was placed in removal proceedings for being present without admission or parole.
- Lari sought asylum, withholding of removal, and CAT protection; the IJ denied all relief and ordered removal.
- The Board of Immigration Appeals dismissed Lari’s appeal on July 14, 2011.
- Lari filed a motion to reconsider in August 2011, which the Board denied, concluding it lacked jurisdiction after Lari’s removal on August 23, 2011, under the departure regulation.
- The government moved to remand and the court granted remand to address the statutory issue governing the motion to reconsider; the first petition remains unresolved as to removability.
- In a companion ruling, the court held that the departure regulation cannot bar statutorily authorized motions to reopen; this case applies similar logic to motions to reconsider.
- The court ultimately remanded for proceedings consistent with the ruling on the motion to reconsider and denied the first petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the departure regulation bars a statutorily authorized motion to reconsider | Lari contends the departure regulation cannot bar his motion to reconsider | Board/AG argues departure regulation allows withdrawal after departure | Departure regulation cannot bar the statutorily authorized motion to reconsider |
| Whether 8 U.S.C. § 1229a(c)(6)(A) unambiguously grants a right to one motion to reconsider regardless of presence in the U.S. | Statute unambiguously grants a right to one motion to reconsider | Text ambiguous or misapplied under Chevron? | Statute is facially unambiguous; right to one motion to reconsider applies whether or not the alien is present in the U.S. |
| Whether the court should remand or decide the removability issues given the remand on the motion to reconsider | Remand for reconsideration could affect removability ruling | Remand limited to reconsideration issue; remains for Board to address | Remand to Board for proceedings consistent with this opinion; first petition denied on other issues; second petition granted |
Key Cases Cited
- Garcia Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (departure regulation cannot be applied to motions to reopen under analogous statute (Chevron analysis))
- Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011) (statutory right to reconsider; context of asylum relief)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (interpreting a statutory right to pursue a motion to reopen or reconsider)
- Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011) (Chevron step analysis for agency interpretations of immigration statutes)
- Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. 2005) (limits of agency interpretations under Chevron)