998 F.3d 1031
9th Cir.2021Background
- Petitioner Filiberto Rubalcaba (also Jaime Balerio Rubalcaba) was ordered excluded and removed in 1995, reentered the U.S. without inspection in 1996, and remained in the U.S.
- In 2016 he sought reopening before an Immigration Judge (IJ) so he could apply for adjustment of status based on a visa petition filed by his father decades earlier.
- The IJ denied reopening as untimely, declined equitable tolling, found no "exceptional situation" to favor sua sponte relief, and also concluded she lacked jurisdiction because of the regulatory "departure bar."
- The Board of Immigration Appeals (BIA) affirmed, relying solely on the departure-bar provision in 8 C.F.R. § 1003.23(b)(1) to reject both a motion-based reopening and sua sponte reopening.
- Rubalcaba petitioned for review in the Ninth Circuit, arguing the departure bar applies only to motions to reopen and not to an IJ’s sua sponte authority.
- The Ninth Circuit granted the petition, holding the departure bar does not limit an IJ’s sua sponte reopening power and remanded for the BIA to consider the alternative grounds the IJ offered for denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1003.23(b)(1)’s "departure bar" limits an IJ’s sua sponte reopening authority | Rubalcaba: the departure bar applies only to "a motion to reopen or to reconsider," not to an IJ’s sua sponte power | BIA/Government: the departure bar bars reopening after a noncitizen’s departure, including sua sponte, depriving the IJ of jurisdiction | Court: The departure bar does not apply to sua sponte reopening; the regulation’s plain language limits the bar to motions to reopen |
| Whether the BIA’s contrary interpretation is entitled to deference under Kisor v. Wilkie | Rubalcaba: the regulation is unambiguous; no deference owed to the BIA | Government: the BIA’s interpretation is reasonable and should be deferred | Court: Applying Kisor, the regulation is not genuinely ambiguous; the BIA’s interpretation receives no deference |
Key Cases Cited
- Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015) (held the departure bar cannot be applied to timely statutory motions to reopen)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (framework for deference to agency interpretations of their own regulations)
- Reyes-Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020) (post-Kisor decision concluding departure bar does not limit sua sponte authority)
- Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (pre-Kisor decision upholding BIA view that departure bar can apply to sua sponte reopening)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (pre-Kisor decision applying the departure bar to sua sponte reopening)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (discusses discretionary nature and limits of sua sponte reopening)