Wilmer Garcia Carias v. Eric Holder, Jr.
2012 U.S. App. LEXIS 20284
5th Cir.2012Background
- Garcia-Carias, a Honduran-born lawful permanent resident, was removed in 2005 after a Louisiana felony conviction for possession of a controlled substance.
- He received a pardon for that conviction on July 25, 2005.
- In 2005, Garcia was charged with removability, admitted the allegations, and was removed later that year; his appeal to the BIA was withdrawn and no further agency action occurred before removal.
- In 2010, after reading Lopez v. Gonzalez, Garcia filed a December 27, 2010 motion to reopen with the IJ, arguing Lopez foreclosed his aggravated-felony status and eligible grounds for relief.
- The IJ denied the motion, concluding lack of jurisdiction due to Garcia’s departure; the BIA affirmed the Board’s departure-bar reasoning.
- The Fifth Circuit granted Garcia’s petition, holding that the departure regulation is invalid as applied to statutory motions to reopen, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1229a(c)(7)(A) unambiguously grants the right to file a motion to reopen after departure. | Garcia: statute grants post-departure motion filing as a right. | AG: regulation governing post-departure motions remains valid absent clear repeal by Congress. | Yes; statute unambiguously grants the right to file one motion to reopen regardless of departure. |
Key Cases Cited
- Lopez v. Gonzales, 549 U.S. 47 (U.S. 2007) (defines 'drug trafficking crime' and limits state felonies under CSA)
- Lin v. U.S. Att'y Gen., 681 F.3d 1236 (11th Cir. 2012) (supports right to file motion to reopen independent of presence)
- Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc; departure bar conflicts with IIRIRA)
- Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (departure bar cannot restrict statutory motion to reopen)
- William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (supports view that §1229a(c)(7) grants right irrespective of presence)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (statutory form changes motion to reopen; context of IIRIRA)
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (regarding regulatory departure regulation applicability)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (departure regulation and sua sponte reconsideration context)
- Armendarez, 24 I. & N. Dec. 646 (BIA 2008) (departure bar analysis in BIA decisions)