Perez Santana v. Holder
2013 U.S. App. LEXIS 19820
| 1st Cir. | 2013Background
- Vladimir Perez Santana, a lawful permanent resident, pleaded guilty in Massachusetts (2010) to possession with intent to distribute and received probation.
- DHS initiated removal proceedings, the IJ and BIA found him removable as having committed an aggravated felony, and the BIA’s order became final April 16, 2012.
- Perez Santana sought to withdraw his plea under Padilla; Massachusetts vacated the conviction on July 11, 2012, after he had been deported on May 29, 2012.
- He filed a timely motion to reopen with the BIA arguing vacatur of his conviction eliminated the basis for removal; the BIA returned the motion citing the "post-departure bar" (8 C.F.R. § 1003.2(d)).
- Perez Santana petitioned this Court for review, arguing the post-departure bar conflicts with the statutory right allowing "an alien" to file one motion to reopen (8 U.S.C. § 1229a(c)(7)(A)).
- The First Circuit granted review and held the post-departure bar cannot prevent a noncitizen from invoking the statutory right to file a motion to reopen when the motion is a timely, first motion under the statute.
Issues
| Issue | Perez Santana's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the post-departure bar (8 C.F.R. § 1003.2(d)) conflicts with the motion-to-reopen statute (8 U.S.C. § 1229a(c)(7)) | The statute plainly grants "an alien" the right to file one motion to reopen and contains no geographic limitation; post-departure bar unlawfully adds such a limit | The statute is silent on geographic limits; longstanding regulatory practice and history permit the agency to fill the gap with the post-departure bar | Held for Perez Santana: statute unambiguous — no geographic limitation; post-departure bar cannot bar a timely, first statutory motion to reopen |
| Whether Chevron deference permits the regulation as a reasonable construction | Argues plain statutory text controls; no deference because statute speaks directly | Requests deference under Chevron if statute ambiguous, citing regulatory history | Court concluded statutory text is clear and declined to reach Chevron step two |
| Whether agency can rely on removal/stay discretion to avoid the statutory filing period | Perez Santana: conditioning statutory right on DHS/BIA discretion (stays) is improper; removal should not cut off the statutory filing window | Government: noncitizen could seek stays to preserve time to file | Court noted the practical unfairness of relying on discretionary stays and that removal should not defeat the statutory right |
| Scope of decision — whether it should be limited to timely, first motions filed after departure | Perez Santana limited to his timely, first-motion facts | Government asked for narrow holding but argued post-departure bar still valid for untimely or successive motions | Court limited ruling to the circumstances here (timely, first motions) and declined to decide broader questions |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (motion to reopen is an important safeguard)
- Dada v. Mukasey, 554 U.S. 1 (statutory protections for motions to reopen and limits on agency discretion)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (framework for judicial review of agency interpretations)
- Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007) (prior First Circuit discussion of post-departure bar)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (post-departure bar conflicts with motion-to-reopen statute)
- Lin v. U.S. Attorney General, 681 F.3d 1236 (11th Cir. 2012) (same)
- Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc) (post-departure bar invalid as conflicting with statute)
- Brown v. Gardner, 513 U.S. 115 (Congressional silence is not persuasive when statute is clear)