Prestol Espinal v. Attorney General of the United States
2011 U.S. App. LEXIS 15900
| 3rd Cir. | 2011Background
- Prestol Espinal, a Dominican-born noncitizen, lived in the United States from 1982 to 2009.
- DHS charged removability in 2009 for being present without admission and for substance and moral turpitude offenses based on 2004 convictions.
- An IJ denied asylum, withholding, and CAT relief on June 23, 2009; the BIA affirmed on November 3, 2009; Prestol was removed on November 24, 2009.
- Prestol filed a timely motion to reconsider with the BIA on December 3, 2009; the BIA denied it January 19, 2010 for lack of jurisdiction due to removal.
- Regulatory post-departure bar at 8 C.F.R. § 1003.2(d) bars motions to reopen/reconsider filed after departure, potentially withdrawing such motions by departure.
- This appeal challenges whether the post-departure bar is inconsistent with IIRIRA, which grants an alien the right to one motion to reconsider and one to reopen without geographic limitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the post-departure bar conflict with IIRIRA's rights to reopen/reconsider? | Prestol argues IIRIRA codified a right to one motion each with no geographic restriction. | The government contends the regulatory post-departure bar is consistent with Congress's authority and deference to agency interpretation. | Yes; post-departure bar is inconsistent and invalid. |
| Is IIRIRA's text silent or ambiguous about the post-departure bar? | Statute explicitly grants motions to reopen/reconsider to all aliens; no geographic limitation is stated. | Text is silent on bar after departure; regulation provides permissible limitations. | Text is not silent; unambiguously supports right to reopen/reconsider regardless of departure. |
| Does Chevron apply to determine the regulation's validity against the statute? | Chevron Step One shows statute unambiguous; agency interpretation is unreasonable. | Chevron Step Two could defer to agency interpretation if ambiguous. | Chevron Step One resolves in favor of invalidating the regulation; not ambiguous. |
| Did Congress intend to repeal or override post-departure limitations when enacting IIRIRA? | Congress repealed some post-departure aspects but did not codify the BIA post-departure bar. | Silence on a repeal implies possible preservation of agency rules through Schor-like reasoning. | Contrary to defendant; Congress did not codify the post-departure bar and repealed judicial post-departure review, indicating intent to limit such regulatory bars. |
Key Cases Cited
- William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (statute unambiguously provides right to file one motion to reopen regardless of presence)
- Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) (agency lacks jurisdiction to bar motions based on departure)
- Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011) (physical removal does not preclude motion to reopen)
- Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (statutory right to file one motion to reopen/reconsider applies regardless of departure)
- Dada v. Mukasey, 554 U.S. 1 (Sup. Ct. 2008) (statutory right to reopen is a fundamental safeguard; transformation to statutory form)
- Lin-Zheng v. Att'y Gen., 557 F.3d 147 (3d Cir. 2009) (silence in statute does not fill gaps; avoid creating ambiguity where none exists)
- Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (voluntary departure and motion to reopen context; interpretations of statutory text)
- Union Pac. R.R. v. Bhd. of Locomotive Eng'rs, U.S. _ (Sup. Ct. 2009) (Congress controls agency jurisdiction; agency cannot rely on its own rules)