Reyes-Vargas v. Barr
958 F.3d 1295
| 10th Cir. | 2020Background
- Juvenal Reyes-Vargas, a lawful permanent resident, was convicted of aggravated battery and removed in 2015; he was deported after waiving appeal.
- In 2016 an Idaho court vacated his predicate felony conviction based on ineffective assistance (Padilla) claims.
- In 2017 Reyes‑Vargas asked an Immigration Judge (IJ) to reopen proceedings sua sponte; the IJ denied the request by adopting the government's opposition.
- The BIA affirmed, holding 8 C.F.R. § 1003.23(b)(1)’s post‑departure bar deprives the IJ (and the BIA) of jurisdiction to sua sponte reopen after an alien’s departure.
- On review the Tenth Circuit applied Kisor v. Wilkie, concluded the regulation is unambiguous: the post‑departure limitation applies to a party’s “motion to reopen,” not to an IJ’s authority to reopen sua sponte, vacated the BIA decision, and remanded for merits review of the IJ’s exceptional‑circumstances determination (based on the vacated conviction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Jurisdiction to review BIA legal ruling on IJ jurisdiction | Court can review BIA’s legal determination that IJ lacked jurisdiction | Sua sponte reopening is purely discretionary and not reviewable | Court has jurisdiction to review the BIA’s legal ruling about IJ jurisdiction (legal question reviewable) |
| 2. Does §1003.23(b)(1)’s post‑departure bar strip IJ of sua sponte authority? | Post‑departure restriction applies only to a party’s "motion to reopen"; IJ may reopen "at any time" even after departure | Post‑departure bar removes IJ’s jurisdiction to reopen once alien has departed | Regulation unambiguously limits the bar to party motions; IJ retains sua sponte authority to reopen after departure |
| 3. Is deference to the BIA (Kisor/Auer) required? | No—regulation is not genuinely ambiguous so Auer/Kisor deference is inappropriate | Regulation is ambiguous; BIA’s reasonable interpretation should receive deference | Under Kisor, court finds no genuine ambiguity and declines to defer to the BIA |
| 4. Remedy after finding jurisdiction exists | Remand for the agency to decide whether exceptional circumstances warrant sua sponte reopening (e.g., vacated conviction) | BIA: no jurisdiction so no merits review | Grant petition, vacate BIA decision, remand for BIA to review IJ’s denial on the merits (exceptional‑circumstances analysis) |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarifies and cabines Auer deference; requires genuine ambiguity and reasonableness)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (distinguishes a party's motion from an invitation for the agency to exercise sua sponte authority)
- Contreras‑Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (invalidated regulatory post‑departure bar as limit on the statutory motion to reopen)
- Rosillo‑Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (earlier panel applied post‑departure bar; discussed and limited by later decisions)
- Jimenez v. Sessions, 893 F.3d 704 (10th Cir. 2018) (noting courts lack standards to review agency sua sponte reopening absent a legal error)