JUVENAL REYES-VARGAS, a/k/a Juvenal Reyes, a/k/a Juvenal Vargas-Reyes v. WILLIAM P. BARR, United States Attorney General
No. 17-9549
United States Court of Appeals for the Tenth Circuit
May 14, 2020
PUBLISH
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Amicus Curiae.
Appeal from the Board of Immigration Appeals (Petition for Review)
Aaron Tarin (Lory D. Rosenberg with him on the briefs), of Immigrant Defenders Law Group, PLLC, West Valley City, Utah, for Petitioner.
Jonathan K. Ross, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, and Chad A. Readler, Acting Assistant Attorney General, Civil Division; Margaret Kuehne Taylor, Senior Litigation Counsel, Office of Immigration Litigation, with him on the brief), United States Department of Justice, Washington D.C., for Respondent.
Elizabeth G. Simpson, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for amicus curiae on behalf of Petitioner.
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
In this appeal, we review a Board of Immigration Appeals (the “Board” or “BIA“) ruling that an Immigration Judge (IJ) had no jurisdiction under
We review the Board‘s interpretation of its regulation using the framework announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which clarifies when and how courts defer to an agency interpreting its own regulations. Under that case, we can defer to the Board‘s interpretation only if we conclude, after rigorously applying all our interpretative tools, that the regulation presents a genuine ambiguity and that the agency‘s reading is reasonable and entitled to controlling weight.
Applying this framework here, we conclude that the regulation is not genuinely ambiguous on the issue in dispute—that is, whether the post-departure bar eliminates the IJ‘s jurisdiction to move sua sponte to reopen removal proceedings. In fact, the regulation‘s plain language conclusively answers the question. The post-departure bar applies to a party‘s “motion to reopen,” not to the IJ‘s own sua sponte authority to reopen removal procеedings. So we do not defer.
Accordingly, we grant Reyes-Vargas‘s petition for review, vacate the Board‘s decision, and remand for further proceedings. On remand, the Board must consider Reyes-Vargas‘s appeal from the IJ‘s ruling declining to move sua sponte to reopen his removal proceedings. More specifically, the Board must review the IJ‘s conclusory decision that Reyes-Vargas had not shown “exceptional circumstances” as required before an IJ can move sua sponte to reopen removal proceedings. As his showing, Reyes-Vargas informed the IJ that the Idaho state court had vacated his predicate aggravated felony conviction—aggravated battery against his wife—that had furnished the basis for his removal. This question belongs to the agency. We simply decide that it has jurisdiction to answer it.
BACKGROUND
In 1992, Reyes-Vargas, then a thirteen-year-old boy, arrived in the United States with his family as a lawful permanent resident. By July 2014, Reyes-Vargas had married. That month, his wife reported to police that Reyes-Vargas had beaten her in their Idaho home, forced her into the basement, and restrained her there with a belt fastened around her neck. Her brother-in-law later freed her after happening by the house with her child. Consistent with her report, police saw bruises, abrasions, and red marks on her body. The police arrested Reyes-Vargas, and prosеcutors soon charged him with two Idaho felonies, aggravated battery and attempted strangulation, and one misdemeanor, false imprisonment. In December 2014, Reyes-Vargas pleaded guilty to two of the charges, aggravated battery and false imprisonment, after consulting with his attorney, and two months later, the court sentenced him to ten years’ imprisonment. But Reyes-Vargas‘s criminal-defense attorney had failed to advise him of the immigration consequences of pleading guilty to this felony conviction, namely, its rendering him removable from the United States on two statutory grounds. See
On August 20, 2015, the Department of Homeland Security (DHS) served Reyes-Vargas with a notice to appear for a rеmoval proceeding. The notice advised him of the above two statutory grounds for removal. On October 26, 2015, after a hearing, an IJ ordered Reyes-Vargas removed from the United States. Reyes-Vargas waived his appeal, and the next month he was deported.
In July 2016, Reyes-Vargas‘s immigration counsel filed in the Idaho state district
About seven months later, in March 2017, Reyes-Vargas filed in the Immigration Court a “Motion to Reopen Sua Sponte and Terminate Removal Proceedings.”1 R. at 96, 102 (some capitalization removed). Therе, he asked the IJ to exercise its sua sponte authority to reopen his removal proceedings based on what he asserted were compelling circumstances. The government opposed Reyes-Vargas‘s request.2 As pertains here, it argued that the regulation‘s post-departure bar deprived the IJ of jurisdiction even to consider Reyes-Vargas‘s request for sua sponte relief. Alternatively, the government argued that if the IJ had jurisdiction to do so, Reyes-Vargas had “failed to justify the use of the Immigraton [sic] Judge using his sua sponte authority.”3 Id. at 92 (capitalization removed).
The IJ denied Reyes-Vargas‘s motion by merely checking a box marked “[for] the reasons stated in the [government‘s] opposition to the motion.” Id. at 76. Reyes-Vargas appealed to the Board, arguing that the IJ‘s decision was unreasoned and erroneous and “failed to provide any justification.” Id. at 37. On appeal, the Board declined to reverse and remand, despite acknowledging that the IJ‘s decision might be “unreasoned.” See id. at 2–3, 37. The Board concluded that the agency‘s post-departure-bar regulations deprived it and the IJ of jurisdiction to move sua sponte to reopen Reyes-Vargas‘s removal proceedings. Reyes-Vargas filed a petition for review.
DISCUSSION
I. Our Jurisdiction
The Immigration and Nationality Act (INA) “gives the courts of appeals jurisdiction
We have jurisdiction to review that ruling. See Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013) (noting that when the Bоard makes a legal determination, “[w]e do have jurisdiction to review” if there are “questions of law” presented (internal quotation marks omitted) (quoting
Exercising jurisdiction under
II. Standard of Review
Both the IJ and the Board rendered a decision in this case, but “[b]ecause a single member of the [Board] affirmed the IJ‘s decision in a brief order, we review the [Board]‘s opinion rather than the decision of the IJ.” Neri-Garcia v. Holder, 696 F.3d 1003, 1008 (10th Cir. 2012) (citations omitted). Ordinarily, we review the Board‘s legal rulings de novo. See, e.g., Ferry v. Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006). But here, the Board‘s decision hinged on its interpretation of a regulation it administers,5 so our review turns on the deference framework announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
A. Kisor Deference
For years, courts have “often deferred to agencies’ reasonable readings of genuinely ambiguous regulations.” Kisor, 139 S. Ct. at 2408 (discussing Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)). Under Auer, courts deferred to an agency‘s interpretation of its regulation “unless plainly erroneous or inconsistent with the regulation,” even if the court would have interpreted it differently. 519 U.S. at 461 (internal quotation marks and citation omitted); see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013) (“It is well established that an agency‘s interpretation need not be the only possible reading
of a regulation—or even the best one—to prevail.“). But critics have long assailed this deferential approach,6 perhaps leading the Supreme Court in Kisor to reexamine the Auer rule. In Kisor, a divided Supreme Court reaffirmed the general Auer rule with three significant limitations on judicial deference. 139 S. Ct. at 2408–09 (”Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. . . . The deference doctrine we describe is potent in its place, but cabined in its scope.“).7
First, courts shall not defer “unless the regulation is genuinely ambiguous.” Id. at 2415 (citing Christensen v. Harris County, 529 U.S. 576, 588 (2000); Seminole Rock, 325 U.S. at 414). This means that “if there is only one reasonable construction of a regulation[,] then a court has no business deferring to any other reading.” Id. Without genuine uncertainty, deference “would ‘permit the agency, under the guise of interpreting a rеgulation, to create de facto a new regulation.‘” Id. (quoting Christensen, 529 U.S. at 588). In resolving any questions of ambiguity, “a court must exhaust all the ‘traditional tools’ of construction.” Id. (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)). “[A] court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read.” Id.
Instead, a court must “carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on.” Id. (internal quotation marks, citation, and alteration omitted).
Second, “[i]f genuine ambiguity remains, . . . the agency‘s reading must still be reasonable,” meaning “it must come within the zone of ambiguity the court has identified after employing all its interpretive tools.” Id. at 2415–16 (internal quotation marks and citation omitted) (noting that “an agency can fail” step two).
Third, a court must consider “whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416 (citations omitted) (noting that “not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference“). In determining “controlling weight,” courts consider the reasons supporting deference in the first place. Id. (“The inquiry on this dimension does not reduce to any exhaustive test.“). Considerations include: (1) whether “the regulatory interpretation . . . [was] actually made by the agency,” id. (meaning it must be the “authoritative” or “official position” of the agency (internal quotation marks and citation omitted)); (2) whether the “agency‘s interpretation . . . in some way implicate[s] its substantive expertise,” id. at 2417; (3) and whether the “agency
With this, we turn to Kisor step one. In doing so, we consider whether the regulation is ambiguous in light of both the regulation and its framework, meaning we “carefully consider [its] text, structure, history, and purpose” as if we “had no agency to fall back on.” Id. at 2415 (internal quotation marks, citation, and alteration omitted). Doing this, we conclude the regulation lacks ambiguity, so we cannot defer to the Board‘s interpretation. And under the regulation‘s unambiguous language, we hold that the IJ had jurisdiction to move sua sponte to reopen Reyes-Vargas‘s removal proceedings despite his departure from the United Stаtes.
III. Reopening Removal Proceedings
A. Legal Background: 1940 to 2016
In 1940, Congress created the Board as a decision-making body for immigration disputes. See Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940). Soon after, “the Attorney General authorized [the Board] to reopen concluded immigration proceedings at its discretion.
For thirty-eight years, the statutory and regulatory regime remained largely intact. See
file an unlimited number
In response, the Attorney General revised these regulations in three important ways: (1) by limiting a party to ”file only one motion to reopen proceedings (whether before the Board or the [IJ]) and that motion must be filed not later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,”
Congress codified some of these regulatory changes. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009-546 (“IIRIRA” or “1996 Act“).10 First, Congress provided aliens a right to file one motion to reopen—if done within ninety days of the final removal order.
In early 1997, responding to Congress‘s direction in the 1996 Act, the Attorney General promulgated new regulations. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312 (Mar. 6, 1997). Though Congress chose not to codify either sua sponte review or a post-departure bar, the new regulations included both. See
B. The IJ Regulation: 1997–Present
The outcome of this appeal turns on the text of one of the regulations first adopted in 1997:
(b) Before the Immigration Court—
(1) In general. An Immigration Judge may upon his or her own motion at any
time, or upon motion of the Service or the alien, reopen or reconsider any case in which hе or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals. . . . [A] party may file only . . . one motion to reopen proceedings . . . within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion . . . . A motion to reopen . . . shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.
In this appeal, the government argues that this regulation is genuinely ambiguous and that we must defer if the agency‘s interpretation is reasonable. Brief for Respondent at 14 (mistakenly asking for Chevron deference, not Auer deference). It pins the regulation‘s asserted ambiguity on what the agency perceives is a conflict between the specific post-departure-bar provision and the provision giving IJs general sua sponte authority to reopen removal proceedings “at any time.”13 Id. at 15. But as explained below, we rule that these two provisions do not conflict but instead
apply within their own realms. And without a conflict, we find no ambiguity and cannot defer to the Board‘s interpretation.
C. Interpreting the Regulation
The regulation (and the statute later codifying key pieces of it as applied to “motions to reopen“) gives aliens, such as Reyes-Vargas, two avenues to reopening. First, an alien, or the Immigration Service, may file а “motion to reopen.” See
First,
Second, the regulation‘s plain language leads to a sensible result. Oftentimes, the alien‘s good reason for reopening removal proceedings takes time to manifest itself. Reyes-Vargas‘s situation offers a good example. Vacating a state felony conviction for constitutional error, Padilla error or otherwise, likely takes more time than an alien has in which to stave off removal. Had the agency written its regulations to attach a post-departure bar to the IJ‘s and Board‘s sua sponte authority to reopen
Thus, we conclude that the IJ‘s sua sponte power to reopen removal proceedings is independent of, so not subject to, the post-departure bar because
For the reasons given above,
D. Rosillo-Puga
Despite this, we still must address whether our decision in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009), overruled on other grounds by Contreras-Bocanegra, 678 F.3d at 819, binds us to affirm. Though neither party argues that Rosillo-Puga binds us, Reyes-Vargas‘s issue runs right through that case. Accordingly, we address Rosillo-Puga in some detail.
In Rosillo-Puga, the government began removal proceedings against Rosillo-Puga by filing a notice to appear in the immigration court after he was convicted for domestic battery in Indiana. Id. at 1149. Under Seventh Circuit law, this domestic battery conviction qualified as an aggravated felony and a crime of domestic violence, rendering him removable.20 Id. After a hearing, the IJ ordered him removed from the United States. Id. He chose not to appeal. Id. Several months after his removal, the Seventh Circuit ruled, in a different case, that an Indiana domestic battery conviction did not qualify as a crime of domestic violence or an aggravated felony. Id. So about three years after this decision, he moved to have the IJ reopen his
immigration proceedings, relying both on the statutory “motion to reopen” (as mirrored in the regulations) and on the IJ‘s sua sponte authority to reopen at any time. Id. The IJ rejected both of Rosillo-Puga‘s requested avenues, ruling that the post-departure bar preventеd its exercise of discretion in the case, and the Board affirmed. Id. at 1150–51. Rosillo-Puga appealed the Board‘s decision to our court, and we also affirmed. Id. at 1160.
On appeal, all agreed that Rosillo-Puga‘s statutory “motion to reopen” was untimely—he had filed it more than ninety days after his order of removal. That provided a full basis to deny the statutory “motion to
Two years later, after six other circuits had ruled the other way (now nine), our court issued a unanimous en banc opinion overruling Rosillo-Puga‘s holding that the regulation‘s post-departure bar limited the statutory “motion to reopen.” See Contreras-Bocanegra, 678 F.3d at 813.
But did Rosillo-Puga also apply the regulation‘s post-departure bar to an IJ‘s motion to sua sponte reopen removal proceedings?—an issue not raised in Contreras-Bocanegra. After much struggle, we conclude that it likely did.21 But we must reconsider Rosillo-Puga in light of Kisor.
For two reasons, this case has no force. First, Rosillo-Puga does not even cite Auer, let alone apply its required analysis. We cannot know how the court would have decided Rosillo-Puga had it done so. And further, ten years after Rosillo-Puga, the Court in Kisor has narrowed Auer deference, requiring more rigorous review by courts reviewing an agеncy‘s interpretation of its own regulation. We must apply Kisor‘s framework, whatever Rosillo-Puga or any other pre-Kisor case held. And Kisor requires that we dig deeper than did Rosillo-Puga. As explained above, after adhering to Kisor‘s pronouncements of strict review, we conclude that the unambiguous language of
“motions to reopen.” Second, in Rosillo-Puga, the alien argued a point we would reject here too—that “at any time” smothered the post-departure bar. This missed the plain-language interpretation we give—it overlooked that the post-departure bar applies only to “motions to reopen,” not to the IJ‘s sua sponte authority to reopen.22 That left
CONCLUSION
For the foregoing reasons, we grant Reyes-Vargas‘s petition for review and vacate the Board‘s decision because the IJ had jurisdiction to consider Reyes-
Vargas‘s request for sua sponte relief. Thus, we remand for the Board to review the IJ‘s decision that sua sponte reopening Reyes-Vargas‘s removal proceeding was not warranted notwithstanding the Padilla violation on which his original removal was based.