Ortega-Marroquin v. Holder
640 F.3d 814
8th Cir.2011Background
- Ortega, Guatemalan national, entered the United States illegally in 1992 and sought asylum years earlier, which was denied.
- In 2006 DHS issued a Notice to Appear; in 2007 Ortega sought asylum, with withholding and cancellation of removal, aided by attorney Chandra.
- A 2009 IJ decision denied asylum, withholding, and cancellation; Ortega was given 60 days to depart voluntarily.
- On review, the Board affirmed in 2009; Ortega filed a petition for review in this circuit (No. 09-2740).
- Ortega argued his former counsel’s ineffectiveness and new medical evidence for his children; government custody status and timing of motions became pivotal.
- In 2009–2010 the Board sua sponte reopened Ortega’s case but later vacated that reopening after the government noted Ortega’s removal; the Department argued the departure bar barred further action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the departure bar regulation | Ortega argues regulation conflicts with statute permitting one motion to reopen. | Regulation valid; Congress did not authorize beyond-stated filing; departure bar limits sua sponte reopening. | Departure bar regulation valid; board may limit sua sponte reopening. |
| Equitable tolling of the 90-day deadline | Equitable tolling applies due to ineffective assistance and reliance on notario; tolls deadline. | Equitable tolling not properly raised/briefed; issue not decided by Board; cannot adjudicate here. | Remand to consider equitable tolling on the motion to reopen. |
| Board’s authority after removal and timeliness | Even if removed, the motion to reopen could be timely under equitable tolling; upholds Board’s jurisdiction. | Once removed, departure bar withdraws the motion; Board lacks jurisdiction to reopen. | Remand to resolve timing and tolling before deciding departure-bar impact. |
Key Cases Cited
- Hernandez-Moran v. Gonzales, 408 F.3d 496 (8th Cir. 2005) (equitable tolling of 90-day deadline available)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (motion to reopen defined; scope of reopening statute)
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (deportation statutes construed in alien-favorable manner)
- Chenery Corp. v. SEC, 332 U.S. 194 (U.S. 1947) (court must judge agency action by grounds invoked)
- Gonzales v. Thomas, 547 U.S. 183 (U.S. 2006) (per curiam remand principle for agency decisions)
- Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (departure bar as limitation on Board’s sua sponte authority reasonable under Chevron)
- Martinez Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (involuntary removal and pending motion to reopen; circuit split authority)
- KCCP Trust v. City of North Kansas City, 432 F.3d 897 (8th Cir. 2005) (Article III limits; avoid advisory opinions)