Ocampo v. Holder
2010 U.S. App. LEXIS 25425
| 9th Cir. | 2010Background
- Ccayhuari is a Peruvian citizen who overstayed a nonimmigrant visa after first arriving in 1988 and sought asylum in 1993.
- IJ denied asylum, withholding of removal, and CAT relief in 2000; he was granted voluntary departure for 60 days.
- BIA summarily affirmed the IJ’s decision in 2002, ordering removal if voluntary departure was not completed.
- Ccayhuari married a U.S. citizen and sought adjustment based on an I-130 petition; immigration proceedings continued administratively.
- Ccayhuari filed a motion to reopen with the BIA in 2006 seeking consideration of his adjustment and to stay voluntary departure; the BIA denied as untimely.
- The Ninth Circuit affirmed the BIA, holding finality triggers for 90-day clock are defined by statute, not regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is a removal order with voluntary departure final for timeliness? | Ccayhuari argues finality occurs after voluntary departure ends. | HOLDER argues finality is governed by statute and occurs earlier of BIA affirmation or review deadline. | Finality is the earlier of BIA affirmance or review deadline; motion untimely. |
| Does 8 C.F.R. § 1241.1(f) control finality over statutory definition? | 8 C.F.R. § 1241.1(f) governs finality. | Statute controls; regulation cannot amend finality. | Statutory definition governs; §1241.1(f) does not control finality for timeliness. |
| Is Vega v. Holder controlling on the 90-day deadline interpretation? | Chevron deference to agency interpretation. | Vega clarifies ambiguity and adopts agency rule. | Vega supports timing framework; statute and regulation interpreted with deference. |
| Does Alali-Amin support the finality interpretation adopted here? | Alali-Amin suggests no final removal until statutory finality. | Alali-Amin aligns with finality by statutory definition. | Alali-Amin is consistent with statutory finality governing timeliness. |
Key Cases Cited
- Vega v. Holder, 611 F.3d 1168 (9th Cir. 2010) (ambiguity in finality of removal; agency interpretation adopted)
- Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2006) (rejected §1241.1(f) as controlling finality when inconsistent with finality statute)
- Obale v. Attorney General, 453 F.3d 151 (3d Cir. 2006) (similar rejection of §1241.1(f) finality interpretation)
- Alali-Amin v. Mukasey, 523 F.3d 1039 (9th Cir. 2008) (finality governed by statutory definition of order of deportation)
- Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (statutory finality definition applied to orders of removal)