*1 I Springer merits of reach the ROSILLO-PUGA, Martin And, in n. 5. a/k/a Id. at 799 Springer II.” Puga, Martin Martin by the a/k/a cited Com- the footnote footnote Petitioner, Rosillo, language, above-quoted in the missioner in the PRA claims not state that we did v. Rather, we II were frivolous. Springer HOLDER, Jr.,* Eric H. United States Springer in II was appeal that the stated Attorney General, Respondent. jurisdictional to the obvious frivolous due that Mr. from the fact arising defect Immigration The American Law II in Springer filed federal Springer had Foundation, Curiae. Amicus jurisdiction exclusive district court when No. 07-9564. in Tax Id. at 801 n. 6. Court. resided Appeals, therefore mistaken United States Court of Commissioner this court addressed Tenth Circuit. argues he when Springer’s PRA claims of Mr. merits Sept. 2009. argument is and his frivo- appeal, the prior nature of three given the obvious lous appeal. in that
dispositions sanctions, addition, in his motion for this court states Commissioner taxpayer-plaintiff Lewis
sanctioned the (10th Cir.2008) Comm’r, arguments PRA making
for frivolous at But Sanctions
appeal. See Motion for wrong point on this
the Commissioner (“In Lewis, F.3d at 1278
well. See law, uncertainty our case
light of [the] impose against sanctions
we decline raising specific for these appeal
Lewis on 1040.”). Form challenges against
PRA of the Tax and Decision
The Order The Commission-
Court is AFFIRMED. is DENIED.
er’s Motion for Sanctions Motion to Dismiss
The Commissioner’s is DENIED as Pay Sanctions
Failure has the mon- Springer paid
moot since Mr. imposed against sanction that was
etary prior appeal.
him this court * 43(c)(2), respondent appeal. kasey H. as the R.App. P. Eric Pursuant to Fed. Holder, Jr. for Michael B. Mu- is substituted
Cynthia Burnside, G. Holland & Knight LLP, Atlanta, (Laurie Daniel, GA Webb Kimberly Ward, R. Holland Knight & LLP, Atlanta, GA, and Rachel E. Rosen- bloom, Post-Deportation Rights Human Project Center for Rights Human and In- Justice, ternational College, Boston New- ton, MA, briefs) her on the for Peti- tioner. (Anh-Thu Hurley,
James A. Attorney P. Mai, Litigation Counsel, Senior with him conviction), battery as well as remov- brief), Department of States D.C., Division, pursuant able U.S.C. Washington, Justice, Civil 1227(a)(2)(E)(I), he had because been Respondent. *3 crime of domestic violence convicted Werlin, Wash- Realmuto and Beth Trina conviction, (the which in- battery same brief D.C., amicus curiae filed an ington, wife). Rosillo-Puga’s volved Immigration American of the on behalf Rosillo-Puga appeared pro se at a hear- Law Foundation. factual ing an IJ and admitted the before ANDERSON, LUCERO, Before upon in Based those allegations the NA. O’BRIEN, Judges. Circuit admissions, Rosillo-Puga IJ ordered did Rosillo-Puga to Mexico. not removed ANDERSON, Judge. Circuit from removal and he apply for relief Rosillo-Puga seeks re- Martin Petitioner appeal his the removal waived by the Board of issued of a decision view order. Later in he was removed to (“BIA”), in which Immigration Appeals following Mexico. Three months Rosillo- Judge’s Immigration BIA affirmed Mexico, the Seventh Puga’s removal (“IJ”) Rosillo-Puga’s motion to denial battery held a conviction for Circuit pro- deportation or his reconsider law, pursuant under Indiana which Ro- IJ, regula- reliance ceedings. convicted, sillo-Puga had been was an Immigration implementing tions felony or domestic aggravated a crime of Act, ruled that he had Nationalization immigration law purposes. violence motion because over the jurisdiction lacked Ashcroft, Cir. Flores v. been removed Rosillo-Puga previously had 2003). concluding After from the United States. 7, 2007, May On some three-and-one-half valid, deny we regulations are Mexico, Rosillo- years after his removal to Rosillo-Puga’s for review. petition Puga filed “Motion to Reconsider and BACKGROUND Order, inor the Alterna Rescind Removal the im Reopen Proceedings” with tive to 18, 1995, Rosilla-Puga, a native July On In his mo migration court Colorado. Mexico, admitted into was and citizen that, tion, Rosillo-Puga argued pursuant to a condi- States Indiana as the United 1003.23(b)(1), immigration 8 C.F.R. 24, 1997, he was July tional On resident. reopen his or case court could reconsider Indiana state battery in an convicted IJ discre any “at time” and that the had 14, 2003, Depart- August court. On sponte.1 Rosillo-Puga do so tion to sua (“DHS”) com- Security ment of Homeland August specifically contended Rosil- against proceedings menced removal him “based on 2003 decision to remove was Appear lo-Puga Notice Cir an error of law” because Seventh (“NA”) immigration court before subsequently that his cuit had clarified charged Rosillo- Aurora, Colorado. DHS battery aggravated conviction was not from the United Puga being removable subject which felony or crime violence pursuant U.S.C. States Respondent’s to removal. 1227(a)(2)(A)(iii), Rosillo-Puga he been ed because had (the Rosillo-Puga R. felony Mot. at Admin. at 63. aggravated convicted of an alien, reopen 1003.23(b)(1) perti- or reconsid- provides the Service or 1. 8 C.F.R. any has made a part: nent case in which he she er upon decision.... Immigration Judge may or her An time, upon motion of motion at own further argued that the Flores decision time limits contained in the statute for (within “exceptional constituted circumstances to thirty days motions to reconsider sponte jurisdiction.” invoke the Court’s sua removal) entry of the final order of (within ninety and motions to days removal) entry of the final order of 8 C.F.R. contains anoth- did not bar his motion. provision er critical to our decision in this case: Rosillo-Puga’s The IJ denied motion.
A motion to or to reconsider noting While circum most “[i]n shall not made or on behalf of a stances, general an IJ has discretion *4 subject removal, who is the of person reopen and proceedings,” reconsider the IJ deportation, proceedings or exclusion post-departure concluded the spe bar subsequent to or her cifically “precludes the IJ to exercise his Any departure the United States. from general in reopening discretion recon States, the United including deporta- the sidering proceedings under such circum person tion or removal aof who is the 2, Mem. and stances.” Dec. at Admin. R. exclusion, subject deportation, or Citing at 54. Shawnee Tribe v. United proceedings, occurring moval after the States, Cir.2005), 1213 filing of a to reopen or a motion the general sponte IJ held that “the sua to shall reconsider constitute a with- authority given to an to reopen IJ drawal of such motion. proceedings reconsider is limited the 1003.23(b)(1). Thus, pursuant specific prohibition more making such regulatory to this provision’s post-depar- motions on behalf of person who has bar, ture Rosillo-Puga aliens like who have departed after an order of removal.” Id.2 been may removed from the United States The IJ accordingly Rosillo-Puga’s denied reopen not file a motion or reconsider motions to reopen pro reconsider or the proceeding. their removal In his motion ceedings. reconsider, ar- Rosillo-Puga Rosillo-Puga appealed the adverse deci- gued that, despite the fact that he had argued sion to the BIA. He the IJ commit- States, departed the regula- United legal ted in denying errors his motion to any tion’s “at language “permits time” reopen or reconsider because: there was Immigration Judge to exercise sua sponte no conflict provision between the that an jurisdiction regardless of whether mo- IJ can reconsider or reopen a proceeding pre- tion is made or post-departure.” Re- “at any bar; time” post-departure and the spondent’s Motion at Admin. R. at 73. bar apply did not He also argued that his removal to Mexico those, him, like already who had been re- did not bar his motion to because moved longer and were no pro- deportation bar of 8 C.F.R. removed; ceedings; he was not 1003.23(b)(1) legally “does not apply to those regulation contrary was applicable to the have already who been removed and are statute; regulation longer therefore was unconstitution- subject no ‘the of removal ” al; proceedings.’ Id. at 11-12. Seventh Circuit’s Finally, Ro- Flores decision that, sillo-Puga argued because of the “at constituted “extraordinary circumstances 1003.23(b)(1), time” language authority”; sufficient invoke sua sponte ” one, We stated Shawnee Tnbe that is a specific governs.’ "[i]t the more 'fundamental canon construction Groves, (quoting F.3d at 1213 United States v. that, apparent when there is an conflict be- (10th Cir.2004)). n. provision specific general tween a and a more Background Immigration Laws II. time-barred was not Rosillo-Puga had years and one-half though three even history of begin by detailing the We See Notice his removal. elapsed since in this regulations issue statute BIA af- at 42. The Admin. R. Appeal, The McCarran-Walter Act of case. Ro- and dismissed IJ’s decision firmed the immi- the structure current established agreed with The BIA sillo-Puga’s appeal. laws, 82-414, Pub.L. 66 Stat. gration No. de- IJ that 8 C.F.R. 1952) (codified (March 27, at 8 U.S.C. jurisdic- court immigration prived (1952)). part As of an §§ 1101-1537 reconsider tion over motions immigration laws in amendment depar- their subsequent aliens made provided that federal The Board States. ture from jurisdiction over not exercise courts could IJ’s conclusion with the agreed also exclusion where deportation and orders specific post-departure the more departed alien had United States general language giving trumps the more Thus, following of the order. issuance authority to or reconsider the IJ 1105a(c)(1962)provided: U.S.C. *5 petition This sponte. sua proceeding or deportation An order of of exclusion as Addressing the issues followed. review if by court the shall be reviewed them, deny presented have we parties the departed ... alien has petition for review. the of the order. States after issuance after months the enactment Three DISCUSSION laws, Attorney issued the General 1962 of Review I. Standard regulations, including 8 implementing 3.2, recon- “Reopening titled or C.F.R. a case issued The BIA regula- the before That [BIA].” sideration order, to 8 pursuant brief single-member 1105a(c), provided: paralleled tion 1003.1(e)(5), affirming the IJ’s C.F.R. or a motion to reopen ... the have held [A] “We decision. by or on shall not be made (e)(5) indepen an reconsider produces order ... brief subject person of a who the of behalf the final that constitutes dent BIA decision subsequent deportation proceedings v. Gon agency].” Uanreroro [the order of Cir.2006). departure from the United States. (10th zales, 1197, 1204 departure from the United States Any agency’s the in deference to “Accordingly, subject depor- is the person who will not affirm on we procedures, own after proceedings occurring tation in the IJ decision unless grounds raised reopen motion to or mo- making of a BIA in' its by the they upon are relied shall constitute a with- tion to reconsider reviewing a BIA ‘When affirmance.” Id. motion. drawal such decision, for ‘sub we search record agency’s supporting (1962) evidence’ stantial (currently 8 C.F.R. 8 C.F.R. 3.2 Gonzales, 1003.2(d)). Sidabutar con- decision.” 8 C.F.R. Cir.2007). (10th 1116, “Our F.3d language governing motions tains identical duty guarantee factual determi an reopen reconsider filed before IJ. or reasonable, 1996, sub until supported early nations From the 1960s U.S.C. 1105a(c) considering unchanged from that probative evidence remained stantial version, language did (quoting as whole.” Id. as the record 1204). reopen Uanreroro, motions to or regulations regarding We exam BIA. All Turgerel v. before IJ de reconsider questions ine law novo. (10th reopen post-departure motions to Cir. barred Mukasey, 513 F.3d 2008). April Attorney In or reconsider. General amended 8 A reopen 3.2 add- motion to ... or reconsider ed numerical time limits for motions to shall not be made on behalf of a reconsider, pre- and to as well person subject exclusion, is the who scribed contents for such a motion. The deportation, or proceedings, post-departure bar remained. subsequent to his or departure her from Any the United September States. Congress made ma- jor States, to immigration reforms the United through including deporta- law its Illegal enactment of the Immigration Re- person tion removal of a iswho Immigrant Responsibility form and subject Act exclusion, deportation, or re- (“IIRIRA”), 104-208, Pub.L. No. 110 Stat. proceedings, moval occurring after the Among things, other the IIRIRA of a ... or recon- repealed judicial bar re- sider, shall constitute withdrawal of of deportation view orders when alien such motion. departed country had and codified and 1003.2(d)). (currently 8 C.F.R. Virtually procedures enacted governing the filing of identical language post-departure bars reopen. motions to See William v. Gon- view before IJ. See 8 C.F.R. zales, Cir.2007). 1003.23(b)(1). Thus, the regulations Thus, governing the current statute mo- continue to contain a bar to tions to provides and reconsider motions to or reconsider before alien may “[t]he file one motion to Indeed, both the IJ and the BIA. reconsider a decision that is re- Attorney specifically General discussed the States,” movable from the United 8 U.S.C. *6 validity continuing post-departure of the 1229a(c)(6)(A), and that such a motion the notice and process comment for must days be filed “within 30 of the date of regulations the implementing the IIRIRA: entry of a final administrative order of provision No of the 242 new section 1229a(c)(6)(B). removal.” 8 U.S.C. supports the reversing long [INA] the Furthermore, alien may “[a]n file one mo- established rule that reopen a motion to to reopen proceedings tion under this sec- or reconsider cannot be made in immi- tion,” § 1229a(c)(7)(A), 8 U.S.C. which mo- gration proceedings by or on behalf of a must, general, tion be filed “within 90 person after that person’s departure days entry date of a final adminis- from the Depart- United States----The trative order of removal.” 8 U.S.C. ment [of believes Justice] that the bur- 1229a(e)(7)(C)(I). The statute also de- dens associated with adjudication the required tails the content of motions to reopen motions to and reconsider, reconsider on as exceptions well as behalf of deported departed from both the numerical limit of aliens one mo- to reopen tion period greatly outweigh any and the time advantages filing such a system motion. See 8 might U.S.C. this render. 1229a(c)(7)(A)-(C). The statute does Inspection Expedited and Removal of not, however, contain explicit post- Aliens; Conduct Proceedings; Removal review, which, departure bar to as indicat- Procedures, Asylum 10,312, Fed.Reg. 62 above, previously ed had existed former (March 10,321 6,1997). 1105a(c). 8 U.S.C. 1003.2(d) Validity III. of 8 C.F.R. and 6, 1997, On Attorney March General (cid:127)23(b)(1) promulgated regulations implementing the A. IIRIRA. The regulations retained the post-departure bar validity regulations for motions to con before an and IJ the BIA: tinuing bar, to impose
1153
Chevron, 467
Rosillo-Puga,
question
are
at issue.”
U.S.
applicability
their
William,
842,
congressional
in-
104
“If
this case.
499
S.Ct.
heart of
at the
329,
directly
statutory language,
is
only court
address
tent
clear
F.3d
over,
regulations, has deter
the court and
validity
inquiry
these
both
give
invalid be
to the unam-
regulations
agency
are
‘must
effect
mined that the
”
Congress.’
the statute
they
biguously expressed
[8
with
intent of
“conflict[]
cause
(7)(A)
Lee,
Chevron,
re
(quoting
]
527
at 1106
F.3d
U.S.C.
2778).
842-43,
availability of motions
re
stricting
104
467 U.S. at
S.Ct.
“[I]f
in the
aliens who remain
open
ambiguous
to those
the statute is silent or
with
issue,
Id. at 334.3
question
States.”
respect
specific
agency’s
for the
an-
court whether
“
authori
judiciary is the final
‘The
permissible
swer is based on
construc-
issues of
construction
ty on
Ochieng Mukasey,
tion of
statute.”
v.
reject administrative constructions
must
(10th Cir.2008)
1110,
(quot-
F.3d
1114
520
contrary
congressional
to clear
which
Chevron,
843, 104
ing
467 U.S. at
S.Ct.
”
1103,
Mukasey,
Lee v.
intent.’
2778).
(10th Cir.2008) (quoting Chevron
Chevron,
with
we begin
accordance
Council,
U.S.A., Inc. Natural Res.
Def.
statute,
plain language
Inc.,
9,n.
104 S.Ct.
U.S.
1229a(e)(6)
(7):
“The
U.S.C.
(1984)).
begin by
1155 1003.2(d). developed ar- like the one in William many The dissent also Congress that codified Congress argues its view that because supporting guments effect, to, the the repeal every provision regulatory in not intend did bar, regulations. departure but the Attorney General’s framework intentional, have been omission must First, first applying part the response argu- the obvious but analysis, dissent concluded the Chevron “ Congress presumed is that is ment says in isolation approved have known about in departure bar 8 nothing about the bar it the departure when amended 1003.2(d) the or about whether it. explicitly repealing INA without as whole should construed statute Congress expressly repeals often both William, the bar.” departure repealing statutory provisions[] and regulations, (Williams, C.J., at dissent 336 expect is reasonable that Con- majority’s rejected arguments It ing). speak greater clarity will gress not exception, about domestic-violence overruling long-held agency interpreta- require presence” that the ing “physical like the bar departure tions at issue exception domestic-violence ment Either way, here. the focus in this IIRIRA, and thus enacted after the was inevitably Congress case shifts to what at light Congressional no intent on shed say, sign not do or which is a good did enacted, and time the IIRIRA was inquiry progress that the Chevron must further, physical-presence that the noting, step one. past coextensive with requirement is not (internal bar.4 The dissent regulatory departure omitted). citations Id. nearly provi “a identical also noted that Having that the is concluded statute si limiting aliens to sion agency empowered by and that the lent IIRIRA, enactment existed before fill gaps regulatory statute to regulation containing and in same scheme,5 proceeded the dissent to the sec 1003.2(d),” in § bar located departure now analysis step of the and de ond Chevron conclu “majority’s undermined the which agency’s interpreta termined whether the 1229a(c)(7)(A)by repeals itself sion regulations expressed tion as in the 1003.2(d).” departure in C.F.R. ban legislature’s re light “reasonable at 334-35. design.” vealed NationsBank North Next, Carolina, majority’s after con- N.A. rejecting Annuity v. Variable Life Co., 251, 257, unambiguously the statute clusion Ins. U.S. S.Ct. (1995). to a of a repeal amounts 130 L.Ed.2d Under this defer bar, regula- standard, thereby invalidates the give agency’s we must ential tions, its explain the dissent went “controlling unless interpretation weight un- that the contains no such view statute arbitrary, capricious, manifestly [it is] ambiguous directive: contrary to the Household Credit statute.” ervs., 232, 239, Inc. v. explicitly Pfennig, S U.S. nothing has said (2004). of a L.Ed.2d 450 propriety
about
*9
1229a(c)(7)(C)(iv)(IV),
presence
thereby requiring
continuous
in the
U.S.C.
the do-
4. 8
States.
exception to
violence
the limit of
mestic
requires
reopen, only
to
to
the alien
motion
physically present
delegated
the
to re-
Congress
expressly
when
be
has
rule-mak-
5.
regu-
departure
authority
Attorney
pro-
open
ing
is filed. The
bar in the
to
to
the
General
provides
any departure
mulgate
implementing
immigration
the
effects
rules
lations
that
motion,
1103(g)(2).
previously
laws. See U.S.C.
withdrawal of
filed
1105a(c)
noting
Congress’s repeal
After
the statute addressed
of
“does not
judicial review,
petitions for
whereas the
remotely support an
argument
Con-
regulations
reopen
addressed
to
motions
intended,
gress
implicitly,
also
to allow
BIA,
before the IJ and
ob-
the dissent
post-departure petitions
to
a closed
served the
the two
differences between
proceeding”).
par-
administrative
This is
why
to explaining
venues are critical
Con-
so,
ticularly
given the considerable discre-
gress repealed
the
post-depar-
authority
tion and
in the Attorney
vested
repeal
ture
did not explicitly
bar
the
but
to
way
General
control and determine the
regulatory
motions
post-departure bars to
immigration
its agency reviews
decisions.
petition
“A
agency:
before the
for review
Uanreroro,
See
1157 the one interpretation is intended We certain- the regulations. torney General’s meaning from the Commodity Trading derive a clear ly Congress.” cannot Futures “the alien” or alien” about “an language Schor, 833, 846, 478 U.S. Comm’n “one” to file opportunity the having (1986) (internal 92 L.Ed.2d S.Ct. The or reconsideration. reopening for omitted). Ar- quotations See Matter of thorough anal- provides a dissent William mendarez-Mendez, 24 I & N Dec. 646 its agree we with point, ysis of 2008) (BIA the anal- (specifically rejecting Penar-Muriel, also, discussion. majority). the ysis of William remained (“Congress at silent F.3d opinion upon The to this relies dissent regulatory bar long-standing the regarding (a Dada case not cited to quotations from 1003.23(b)(1).”). by 8 imposed support that party) us either its view the Having concluded that statute regulations the at issue invalid. In our we unambiguous, turn not clear is view, speaks more to than Dada status the inquiry the second Chevron —“whether in voluntary and an alien de- procedure, a permissible answer agency’s is based a parture proceedings has different status Ochieng, of construction the statute.” an than alien who has been removed: Chevron, 467 at (quoting at 1114 U.S. F.3d ways In many structure 2778). above, As stated 104 S.Ct. present system immigration predicat- is merely Congress has not failed to “where assumption ed on that physical precise question but has also address an alien from of the United rulemaking explicit delegation made that States is a transformative event agency’s reg ‘the authority agency, alters the fundamentally posture alien’s weight unless given controlling ulation is Indeed, under the law. the ultimate arbitrary, manifestly capricious, [it is] ” William, is, purpose proceeding a removal contrary to the statute.’ (quoting aliens, at 335 Household Credit respect to removable precisely Inc., Servs., U.S. bring physical departure. about such 1741). explained For reasons in the rule, As a once an alien been re- has dissent, regulations uphold we William moved, underlying removal order is regula under The as valid the statute. executed, proceedings deemed agency’s tions address the treatment consummated, led to that order are reopen, judicial not review over motions re- immigration whatever status We further find it inconceiv final orders. may possessed have moved alien before Congress repeal post- able departure vitiated.... is bar, doing say departure or even without departure consequence forty-year history ing anything about the not just physical removed alien is thus Attorney incorporating such General country, but also absence short, regulations. In in his we are a bar status, legal nullification of which leaves Rosillo-Puga’s argu persuaded position him in after no better inference, that, by negative ment than other alien who is outside the years intentionally away forty swept fact, territory United States. Attorney practice by the continuous Gen physically departs an alien who It “well when eral. is established being after ordered States giving to a Congress revisits a statute rise substantially moved in a less advanta- interpretation administrative longstanding aliens, position than other because geous congression change, pertinent without of a removal order renders existence agency’s repeal failure to revise or al him or inadmissible and evidence that her vulnerable interpretation persuasive *11 heightened and ex- Accordingly, Rosillo-Puga’s criminal sanctions ments. peti- pedited in the event procedures removal tion fails for this alternative reason. reentry. of unlawful Application Regulations of IY. Armendarez-Mendez, I & Matter N of Assuming validity the regu of (2008). Thus, Dec. 655-56 we do not lations, found, which have Rosillo-Puga we implicitly supporting view Dada as argues alternatively 8 C.F.R. regulations that the view invalid. 1003.23(b)(1) not apply does those B. aliens who already have been removed. denying There is an alternative basis for upon He relies the Ninth Circuit’s decision Rosillo-Puga’s As the petition review. Gonzales, in Lin v. indicate, Rosillo-Puga facts set forth above Cir.2007), in support argument. of this filed his motion to reconsider and/or regulation The states a motion to open years some after three-and-one-half or reconsider “shall not be made removal to Mexico. Section behalf person subject or on of a who is 1229a(e)(6)(B) provides that a motion to removal, deportation, pro exclusion days reconsider “must be filed within 30 1003.23(b)(1). ceedings.” 8 C.F.R. The entry a final date administrative Circuit “regulation Ninth held that the removal,” order section phrased in present tense and so its (7) 1229a(c) (C)(i) provides that a motion to applies only person terms to a departs who reopen “shall be within days filed the United States while he or she ‘is the entry date of of a final or- administrative ” subject of removal ... proceedings.’ Thus, der of removal.” Rosillo-Puga’s mo- Lin, 473 Accordingly, F.3d at 982. “[b]e- untimely. tions were While Rosillo-Puga’s petitioner’s cause original pro removal suggested argument counsel oral ceedings completed were he when was re subject such time limits are to various ..., moved not subject he did remain the tolling provisions, no one has a seri- made of removal proceedings after that time.” argument ous that Rosillo-Puga’s motions timely would be viewed as filed. Accord- government urges us not to follow conclude, ingly, we as the Fifth Circuit did Lin, arguing that misinterpreted the recently, that Rosillo-Puga’s petition was plain language regulations: untimely. Holder, Ovalles (5th Cir.2009). similarly plain That A reading basis of both regulations[6 distinguishes jshows majority’s case they to bring finality aim to the position in William. immigration process by preventing an alien from after
Furthermore,
there is an additional
having departed the United States. The
ground upon which
rule against
Rosillo-
[Ninth
erred
while
Circuit]
because
Puga: waiver.
he
suggested
While
has
regulations
speak
time
terms of
applicable
limits
petition
to a
subject
who “is the
of’
proceed
reconsider are mere
rules
ings,
procedure,
jurisdictional
regulations
rather
do
link
than
im-
pediments, there is no doubt
term “is”
departure.
that he has
to the time of
Rather,
argument
waived
that he should be
“is”
to an
refers
alien who at
procedural
excused from
require-
those
point
some
in proceedings, regardless
government
6. The
refers to
language.
both 8 C.F.R.
tain identical
1003.2(d),
which con-
*12
application
that
of
agency’s
departs during
he or she
whether
rights.
his due
proceedings.
regulation
process
those
violated
after
recently
note
Fifth Circuit has
that the
We
government
Br.
21. The
at
Respondent’s
rejected
arguments, and
the identical
we
interpretation
that
for
finds reinforcement
analysis.
court’s
See
agree with that
regulations,
sentence of the
in the next
Ovalles,
at 296-300.
577 F.3d
“[a]ny departure
states
which
States,
deportation or
including the
re-
Rosillo-Puga argues
the “IJ’s
subject
a
is the
person
who
moval
is invalid because it is
order
based
exclusion, deportation,
proceed-
or removal
interpretation
on an
of the defi-
erroneous
occurring
filing of motion
after the
ings,
nition of
Pet’r’s Br.
a crime
violence.”
reconsider,
shall
or motion to
reopen
to
Rosillo-Puga
at 27.
cites some
While
motion.” 8
a withdrawal of such
constitute
supporting
position,
cases arguably
his
as
1003.2(d);
C.F.R.
out,
points
ample
government
there is
1003.23(b)(1).
argues
government
The
authority
contrary.
example,
to the
For
“[tjhat
in terms of an
speaks
sentence also
v. Ashcroft, 330
Navarro-Miranda
F.3d
subject’
pro-
of removal
‘is
alien who
(5th Cir.2003), a
very
case
similar fac-
necessarily
depar-
deals with
ceedings, but
case,
tually
petitioner
previ-
to
had
proceedings.”
completion
tures after
ously
deported
been
based on a drunk
Br. at 22.
Respondent’s
conviction,
driving
argued, post-
and he
government
with the
agree
We
the BIA
have
departure,
should
sua
regulation
interpretation
Lin’s
sponte reopened
proceedings
because
Quite
illogi-
it
simply,
seems
problematic.
circuit court
held
intervening
decision
by
filed
cal to discuss motions
driving
that a drunk
conviction was not
typically, a mo-
proceedings,
aliens
deportable offense.
BIA declined
only
by
will
filed
tion
sponte authority, noting
invoke its
sua
and,
completed,
proceedings are
whose
the more
specific
contrast,
thus,
By
“reopened.”
to be
need
au-
trumped
general
sponte
sua
more
as a
makes sense if it
whole
regulation
thority
provision.
denying
petition
motions
those
filed
addresses
review,
Fifth Circuit observed that
departed following
who have
aliens
Board’s conclusion ...
is consistent
“[t]he
deportation/removal
of their
completion
that ‘a
principle
well-established
them.
proceedings,
wish
reject
given
final civil
entered
judgment
inter-
under
Rosillo-Puga’s
We therefore
regulation.
judi-
See Matter
pretation
may
subsequent
rule of
withstand
law
”
Armendarez-Mendez,
N
24 I & Dec. 646
at
change
cial
in that rule.’
(BIA 2008) (specifically
Lane,
Lin
rejecting
(quoting Teague v.
489 U.S.
regulation);
interpretation of the
court’s
308, 109
L.Ed.2d 334
(re-
Ovalles,
at
see
297-99
Gen.,
also
(1989));
v. Atty.
see also Patel
argument).
identical
jecting
(11th Cir.2003)
(dismissing
prior
petition
petitioner’s
conviction
where
alternatively,
Rosillo-Puga
argues,
also
was
found
state court
subsequently
arbitrary
regulation
capri-
that the
defense, saying
deportable
not constitute a
applied to him because
fails to
cious as
theory
which
perceive
“we
no
under
for the fact that his
account
order of
subsequent
of a
court could
action
state
premised on a characterization
moval was
jurisdiction
us that would not
upon
confer
subsequently
conviction that was
of his
exist”). Thus,
say
cannot
overturned;
otherwise
we
that the IJ and BIA should
arbitrary
that the
sponte;
sua
decision was
have
his motion
BIA’s
considered
Ovalles,
capricious.
requires
296-
that the alien receive notice of the
him,
charges against
and a fair opportunity
*13
to be heard before an executive or admin-
Next,
BIA
and
found that “when
IJ
istrative tribunal.”
Rosillo-Puga
apparent
there is an
conflict between a
due
one,
process
deportation
ceived
in his
specific
pro-
and a
provision
general
more
specific
governs.”
ceedings.
removal,
the more
one
Memo
At
the time
his
he
2,
54;
randum & Dec. at Admin. R. at
see had
been convicted of
crime that war-
also
2.
Order at Admin. R. at As we
his
ap-
ranted
removal. He received all
Tribe,
stated
Shawnee
a funda
“[i]t is
propriate process before the immigration
statutory
mental
canon
construction
authorities, he did not seek relief
that,
an apparent
when there is
conflict
order,
and he waived
to
right
his
provision
between
specific
more
appeal
removal order. He
no
made
one,
general
specific
gov
the more
one
attempt to alter the
status
his conviction
(further quotation
erns.”
at
423 F.3d
country. Now,
he
before
left the
Rosillo-
omitted).
general
spe
That
rule has been
attempts
Puga
reopen
to
proceedings that
cifically
to
at
applied
regulations
issue
roughly
ended
years ago,
five
five
Navarro-Miranda,
here. See
330 F.3d at
years following
departure.
his
“Due pro-
(“[T]he
reasoning
prohi
BIA’s
that the
not require
cess does
continuous opportu-
bition on
to reopen
motions
stated in
to attack
nities
executed removal orders
3.2(d)
[post-departure
overrides
bar]
its
years beyond an
alien’s
3.2(a)
power
reopen
to
on its
motion
own
country.
Indeed,
is a strong public
there
is a
interpretation
reasonable
of these two
in bringing finality
interest
to
deporta-
regulations.”);
also
see
Mansour v. Gon
tion process.” Id.
zales,
(6th Cir.2006).
Furthermore, we have held
“we
do
CONCLUSION
jurisdiction
not have
petition
to consider
accordingly
We
DENY
petition
er’s claim that the [Board] should have sua
review of the BIA’s decision.
sponte reopened the proceedings under 8
1003.2(a)
because
there
no
O’BRIEN,
Judge,
Circuit
concurring.
by
standards
judge
agency’s
which to
Although the parties
argued
have
exercise of
more
discretion.”
v. Ash
Infanzon
broadly,
croft,
Cir.2004).
the principal
presented by
issue
Thus,
perceive
we
no error in the
this case is
untimely
BIA’s
narrow —whether an
that,
decision
its
notwithstanding
sua
petition
reopen
reconsider,
to
toor
it
as
sponte authority to consider motions to
to an
(IJ),
relates
Immigration Judge
reopen,
it
reopen
declined to
Rosillo-
subject to the post-departure bar
found
Puga’s proceedings in this
case.7
1003.23(b)(1).
8 C.F.R.
That issue was
Ovalles, 577
295-98.
to my
by
resolved
satisfaction
the Fifth
Holder,
Circuit Ovalles v.
reconsider have to preferred I would decide this days, respec and 90 days within 30 filed (and grounds on the narrow outlined issue entry of the removal of the date of tively, explained by the convincingly Fifth Cir order). cuit). It is to concur in all tempting but 111(A)of Judge Part Anderson’s excellent by wor- we need not be distracted
And But opinion. doing so would leave time limits for whether rying presented for our review unresolved issue subject jurisdictional or such motions are reason, join circuit.4 I For If Rosillo- equitable to considerations. Judge opinion Anderson’s full. equitable arguments against en- Puga had time statutory limits he could forcing LUCERO, J., dissenting. reopen his have filed motion and/or them; My colleagues majority respected and asserted there reconsider § that 8 1229a is silent on attempted end conclude U.S.C. be no need for whether, question subsequent to the appealing run around statutes States, sponte authority to an alien IJ to exercise sua applicable reopen 1. to the due to the time constraints of 8 The BIA, 1003.2(d), (2007). 1003.23(b)(1) applicable C.F.R. and that 8 [He] C.F.R. IJ, 1003.23(b)(1), equiva- (“IJ”) 8 to the C.F.R. Judge ex- quests Immigration 1152, 1159, Majority Op. at 1157. lent. See authority 8 sponte ercise his sua under 1003.23(b)(1) C.F.R. to reconsider and re- years than after And it was filed more three 2. (R. I at scind his order of removal.” Vol. upon Circuit decision which he the Seventh 46.) government against defended Ro- The Ashcroft, Flores v. 350 rests his claims. See sillo-Puga's agency based motion before Cir.2003); Ovalles, see also 577 F.3d 666 untimeliness, arguing: its current "The (motion reopen at 295 or reconsider 2,May approximately dated motion is Supreme eight after the Court filed months 3)4 years after the final decision. [removal] upon reopen or decision relied as basis to jurisdiction court is without to consider reconsider). (he this motion was removed and it is filed days to recon- outside the motions Moreover, Rosillo-Puga expressly ac- 3. reopen). days sider and 90 for motion to knowledged the untimeliness his motion 55.) 1003.23.” at {Id. section agency reconsider and/or proceedings. IJ stated order As the in his Gant,-U.S.-, Compare Arizona denying "[Rosillo-Puga] ac- the motion: 1710, 1725, (2009) L.Ed.2d knowledges in his motion that is barred he J., (Scalia, seeking concurring). a motion to reconsider or to may file a reconsider removabili- I 1229a(c)(6)(A), ty under or a motion to Chevron, court, Under “If a employing proceedings under construction, traditional tools of 1229a(c)(7)(A). addition, majority ascertains that had an intention (“IJ”) Immigration Judge holds that an precise question issue, on the at that inten- power sponte lacks the to sua reconsider tion given is the law and must effect.” an alien’s case after an alien has 9,104 n. plain U.S. A S.Ct. 2778. I departed from the United States. dis- 1229a(c)(6)(A) reading of 8 U.S.C. agree with both conclusions. (7)(A) comfortably occupies all the space holding, As to the first as I read the on the issue before us and leaves statute, pertinent provisions of potential for promulgation valid (7)(A) unambiguously challenged portion 8 C.F.R. guarantee every alien the to file one outside in the bitter cold. removability motion to reconsider and one Chevron, As the Court said “If the removal proceedings, re- *15 clear, intent of Congress is that is the end gardless of whether the alien has departed matter; court, of the for the as well as the For United States. this reason agency, give must effect to unambigu- alone, I challenged would invalidate the ously expressed intent Congress.” 467 1003.23(b)(1) § portion of 8 C.F.R. under 842-43,104 U.S. at S.Ct. 2778. If there be U.S.A., step the first of Chevron Inc. v. any plain doubt as to the reading of Council, Inc., Natural Resources Defense 1229a(c)(6)(A) (7)(A), § and puts Dada 837, 842-43, 2778, 467 U.S. 104 S.Ct. to rest. (1984). L.Ed.2d 694 Supreme The Court’s — recent Mukasey, decision Dada v. A U.S.-, 2307, L.Ed.2d 178 (2008), all compels but such invalidation. As to holding, the second the post-depar- 1229a(c)(6)(A)provides, Section “The 1003.23(b)(1) ture bar within is consis- may alien file one motion to reconsider a tent language with the authorizing sua decision that the alien is removable from sponte reconsideration or reopening by an States,” 1229a(c)(7)(A) and IJ. Because there is no conflict between provides, “An may alien file one motion to provisions,
these an IJ retains the authori- proceedings under this sec ty sponte to sua reconsider or ....”2 tion The language Congress chose proceeding even following depar- an alien’s plain unequivocal. and It draws no ture from the United States. distinction between aliens who are
Today’s majority country and ruling departed. creates a circuit aliens who have All split,1 rests on a aliens are interpretation dubious treated alike under the terms of 1229a(c)(6)(A) 1229a(c)(6)(A) (7)(A), (7)(A), and disregards the and and all aliens Dada, import clear imagines guaranteed right con to file one motion flict between portions regulation two to reconsider and one reopen. motion to Gonzales, before us when there is none. 329, William v. Specifically, majority's holding regard- 2. These part sections were added as ing validity Illegal Immigration of 8 C.F.R. Immigrant Reform and squarely ("HRIRA” conflicts with the Responsibility conclusion reached Act of 1996 or the Gonzales, "Act"), 104-208, C, the Fourth Circuit William v. Pub.L. No. div. (4th Cir.2007). 3009-546, (1996). 110 Stat. 3009-593 (“We may Cir.2007) regarding aliens file mo- (4th silent which find rather, tions, Congress 1229a(c)(7)(A) but was silent unambiguously provides any whether subclass of aliens regarding file with the one an alien Maj. Op. excluded. might is within nonetheless be regardless of whether he reopen, majority’s approach, at 1156. Under the country.”); see Azarte or without ex- require Cir. Chevron would 1285-86 Ashcroft, 394 F.3d (“With 2005) pressly agency enumerate all that can- to motions to respect may we conclude that IIRIRA is not do before Con- ..., Congress’ language may gress directly spoken precise ‘An file “has unambiguous: clear ” question at issue.” (quot U.S. reopen proceedings.’ (footnote 1229a(c)(6)(A)(2004)) majority 2778. The thus omitt 104 S.Ct. ing § ed)).3 bar, pro preclude customary expression of Con- which gressional expansive a motion intent the use departed aliens from hibits permissions and inclusive such as those reopen, conflicts with to reconsider 1229a(c)(6)(A) (7)(A). §8 unambiguous statutory language. See 1003.23(b)(1).4 My colleagues’ reasoning conflicts with majority initially the thrust of Chevron: we are to Despite language, this clear (7)(A) act, plain of an if language look at concludes doubt, only then question on the of whether there are we are silent Congress using have to the intent of addi- of aliens—those who look certain subclass file one tional tools of construction. may departed United States — *16 (“If 9, court, Maj. 104 reopen. and at 843 n. S.Ct. 2778 a motion to reconsider of Surely employing 1156. this cannot be correct. traditional tools Op. at (7)(A) construction, 1229a(c)(6)(A) that had speak Congress ascertains Sections precise question “The an intention at unequivocal terms: absolute reconsider,” issue, may file motion to that intention is the law and must be alien effect.”). 1229a(c)(6)(A) added), us, a given On the issue before (emphasis § plain reading of the text of statute may reopen,” file one motion to “[a]n 1229a(c)(7)(A) added). My compels conclusion (emphasis § 1229a(c)(6)(A) (7)(A) § Congress unambiguously was colleagues conclude not subsequent proceedings or her At the time the Ninth Circuit’s decision sion of Azarte, Any governed United States. de- to reconsider were motions 1229a(c)(5) States, by including § were parture and motions to from the United 1229a(c)(6). governed person § Con- deportation In of a who or removal 1229a, exclusion, redesignating § gress subject deportation, amended sub- or is the of (c)(5) (c)(6) (c)(7). (c)(6) and See proceedings, occurring section as after the removal 109-13, Act div. Real ID of Pub.L. No. a or of motion to a motion to (2005). B, 101(d)(1), 119 Stat. 304 a reconsider shall constitute withdrawal motion. such regulation setting post-depar- 4. The forth the added). (emphasis provides: ture bar emphasized portion of It is the this section Rosillo-Puga challenged, has and that I Immigration Judge may her upon An his or throughout post-departure time, as “the refer any upon or motion of own motion at alien, bar.” reconsid- the Service or the regulation, parallel applies which A he or has made a er case in which she ("BIA”) decision, Immigration Appeals Board of rather jurisdiction is vested unless IJs, appears at 8 C.F.R. 1003.2. In Immigration than Appeals---- Board A William, the Fourth Circuit invalidated the or to reconsider shall 1003.2(d). §in a bar contained person made who is or on behalf of removal, subject deportation, exclu- F.3d at 334. guarantee right unambiguous all aliens the to file one in its failure to authorize an exemption). such motion to reconsider and one motion to reopen. case, language (7)(A) does not evince today, Before we have followed the dic- congressional intent to exclude subclass- Chevron, giving tates of effect to the clear es of statutorily-guaran- aliens from the Congress determining intent of whether right teed to file one motion to reconsider regulation govern- is consistent with the reopen. Quite and one motion to to the ing example, act. For in Lee v. Gallup contrary, inclusive terms “[t]he alien” and Sales, Inc., regula- invalidated a congressional Auto we alien” indicate a “[a]n intent subject all aliens to a removal order tion that Act exempted Odometer are entitled to file such motions. Assured- of motor vehicles which were subclass ly, Attorney by regula- General cannot explicitly implicitly exempted neither nor tion exempt rewrite the Act to an entire pertinent under the terms of the statute. subclass of aliens when itself Cir.1998). 1360-62 chose not to authorize such an exemption. Act, Under the terms of the Odometer Suiter, 1280-81; Lee, 151 F.3d at required transferor was to disclose certain F.3d at 1360-62. information whenever “a ownership of mo- tor vehicle” was transferred. Id. 1988(a) (1993) (cur- (quoting 15 U.S.C. Structurally, 1229a my reinforces in- (2008)))
rent version at 49 U.S.C.
terpretation.
1229a,
Throughout
Con-
added).
(emphasis
Nevertheless, the Sec- gress codified a number of limitations on
retary
Transportation
promulgated a
alien’s
to file for reconsideration
or reopening. Those limitations are ex-
regulation exempting from the disclosure
1229a(c)(6)(B)(mo-
press
and clear. See
requirements
those motor
ten
vehicles
tions to reconsider must be filed
within
years
(citing
old or older.
49 C.F.R.
days
order);
final
*17
580.6(a)(3) (1993) (current
§
version at 49
1229a(c)(6)(C) (motions
§
to reconsider
580.17(a)(3) (2008))).
§
“Because
fact,
challenge
must
errors of law or
rather
the text of the Odometer Act
not
d[id]
discretion,
than the
exercise
and must
suggest
even
explicitly
less
state—
—much
supported by pertinent
be
authority);
legislative
a
exempt
intent to
entire classes
1229a(c)(7)(B) (motions
must
of vehicles from the
require-
disclosure
state new facts and
supported by
evi-
Act,”
ments of the
we invalidated
regu-
material);
1229a(c)(7)(C) (mo-
dentiary
contrary
lation as
meaning
to the clear
tions to reopen
generally
must
be filed
the statute.
at
(quotation
order).
omit-
days
within 90
of final removal
In
so,
doing
Congress
ted);
clearly
see
considered the
also Suiter v. Mitchell Motor
filing
need to limit the
of such motions and
Sales, Inc.,
1275,
Coach
151 F.3d
1280-81
precise
time, number,
selected a
scheme of
(10th Cir.1998) (invalidating a regulation
and content restrictions.
exempted
from the disclosure require-
1229a(c)(6)(A)
(7)(A)
Sections
and
also
ments of the Odometer Act those vehicles
an express
include
limitation: aliens are
gross
with a
weight rating
vehicle
in ex-
limited to one motion to reconsider 16,000 pounds
cess of
because the Act was
contrast,
one motion
reopen.5
In
what
5.
Report accompanying
pas-
The House
single
limited to a
motion to reconsider
sage
Congress
of IIRIRA shows that
consid-
single
pro-
and a
1229a(c)(6)(A)
(7)(A)
embody
ered
104-469,
1,
ceedings.” H.R.Rep.
pt.
No.
at
important
limit on an alien's
to file
(1996).
motions
reopen:
to reconsider and
"Aliens
concluding as it does that an alien must be
by geography
is limit
does not do
§ 1229a
in the
States to file
motions to
eligible to file
of aliens
the class
majority
reopen,
reconsider or
Congress
That
ex-
reopen.
reconsider
limitations,
physical presence requirement
but
“render the
multiple
included
pressly
written
into
subsection
expressly
based
include another —one
not to
chose
(c)(7)(C)(iv)(IV)
surplusage.”
mere
Wil-
paradigmatic
geography presents
—
liam,
at
499 F.3d
statutory con-
of the canon
example
est exclusio al-
unius
expressio
struction
William,
in
Relying on the dissent
Brown, 529
States v.
See United
terius.
to disre-
majority advances two reasons
(10th Cir.2008);
1260,
also
see
I
from the exis-
gard the inference
draw
Johnson,
53, 58,
529 U.S.
v.
United States
requirement
physical presence
tence of the
(2000)
1114,
146 L.Ed.2d
120 S.Ct.
1229a(c)(7)(C)(iv)(IV)
conspic-
and its
in
(“When
exceptions in
Congress provides
in
uous absence
statute,
that courts have
it does not follow
(7)(A).
1154-55; William,
Maj. Op. at
see
proper
others. The
authority to create
(Williams, J.,
gress chose
1229a(c)(6)(A)
(7)(A).
that,
prevented,
if it can be
no
textu
construed
§in
This
sentence,
clause,
superflu-
shall be
or word
serves as a buttress to
al contrast
ous, void,
insignificant.” (quotations
or
not intend to
Congress
did
conclusion
omitted)); Bridger
Miner-
availability of mo
Coal
by geography
limit
Co./Pac.
Dir.,
als, Inc.,
Indeed,
Comp.
Workers’
reopen.
to reconsider or
tions
Office of
protect
who have "been
presence” require-
enacted to
aliens
Imposing
"physical
subjected
cruelty
to extreme
in the
to invoke the
battered or
on aliens who seek
ment
”
1229a(c)(7)(C)(iv)
with their need
United States
in connection
"special
§
rule
battered
for
children,
immigration
8 U.S.C.
parents,”
for
benefits.
spouses,
but not on
added).
1641(c)(1)(A)
aliens,
(emphasis
only logical. This
was
other
is
rule
long
qualifying
as the
alien files a mo
Cir.
Programs,
(“We
1991)
in a
reopen
departing
not construe a statute
tion to
before
will
country,
subsequent
way
phrases
depar
words or
mean-
alien’s
renders
redundant,
If
no
ingless,
superfluous.”).
ture
the United States has
ef
ability
in the
States
fect on the BIA’s
to hear the
physical presence
United
motion,
already required
decidedly
of aliens before
which is
different
were
than
they
filed a motion to reconsider
result
would obtain under
1229a(c)(6)(A)
(7)(A),
[post-]departure
bar.
under
present”
language
“physically
William,
(Williams, J.,
Second, equally probable it Con- dissent, majority concludes that Con- gress “physically present” included the gress qualifying intended to benefit aliens precisely in 2006 language because by allowing the BIA to consider a motion (7)(A) contain no such even after those aliens have words, requirement. In other Congress States, departed from the United whereas perfectly well 2006 understood what had all other aliens would forfeit such motions aliens, all done 1996: whether or not by departing under the terms the bar. States, physically present the United interpretation But this incompatible granted were to file one motion portion the next of the same and one reopen. to reconsider In addition excepting subsection. do- imposed also a strict time limit— mestic violence victims from certain time a limit it then chose to lift in 2006 for “if physically pres- limitations the alien is qualifying fil- victims domestic violence ent in the United States at the time of ing a motion to physically while 1229a(c)(7)(C)(iv) motion,” filing con- present States. tinues: 1229a(c)(7)(C)(iv)(IV); William, see of a motion to under (majority op.) F.3d at 333 (“Congress stay clause shall only the removal of requirement knew how to include a qualified alien ... pending the final so,
physical presence when it wished do disposition motion, including ex- 1229a(c)(7)(C)(iv)(IV).”). as it did in appeals haustion of all if the motion qualified establishes that the alien ais explanation are offered a second We alien. rejecting logical inference which “physically
should be drawn from the pres- Thus, removal from the United States of a language: ent” U.S.C. qualifying domestic violence victim is 1229a(c)(7)(C)(iv)(IV) requirement could stayed pending the resolution of the vic scope be read as different in from the 8 tim’s motion to reopen. stay For a post-departure bar. teeth, removal to have the alien must be My majority colleagues think- embrace the “physically present” in the United States. ing of the William dissent: qualifying Once removal of a alien is *19 reasonably can stayed,
[0]ne understand the alien will presumably remain in 1229a(c)(7)(C)(iv)(IV) § to that mean the United States.7 And if the alien re- agreed voluntary depar- 7. Even if an operate protect to thus to the rare individual ture, who, removal, Dada allows the notwithstanding stay alien to withdraw con- the voluntary departure country. sent to and hardly remain in the chose to leave the It seems 2319; aliens, likely United States. 128 S.Ct. at subgroup see should infra exist, majority’s interpretation Part I.B. subgroup object The such a was the of Con- (1996) (codified 3009-546, States, to 612 3009-607 post-de- the in the United mains 1252); § at 8 U.S.C. 8 U.S.C. implicated. as amended never bar will parture 1252(a)(5). Second, that the the Act codified the Thus, be correct simply it cannot in language to file one statutory right of all aliens present” “physically 1229a(c)(7)(C)(iv)(IV) lim- out a “carvfes] and one motion to motion to reconsider working of general William, 330; to the at see 8 exception reopen. ited 499 F.3d William, 499 1229a(c)(6)(A) (7)(A). bar.” [post-]departure the & U.S.C. bar does post-departure The F.3d at 337. to one conclusion: Again we are driven of a play when removal come into codify post-depar- a Congress knew how to stayed. alien has been qualifying it so elected. Such bar ture bar when judicial review until 1996. prohibited all Congress post- That chose not include supports further of IIRIRA history to the of motions to departure bar 1229a(c)(6)(A) reading text plain when it enacted reconsider (7)(A). existed stat there Until (7)(A) demonstrates judicial review bar to post-departure
ute a did not intend authorize 1105a(c) orders. 8 U.S.C. deportation a limitation. such (“An (1995) of ex deportation or order of by any court not be reviewed clusion shall departed, ... has the alien if bottom, argument government’s At the issuance States after validity post-depar- of the of the support added) 1996)). (emphasis (repealed order.” prohibiting amounts to this: de- ture bar re Moreover, to reconsider and motions filing motions to recon- aliens from parted regulation creatures of entirely were open brief, In good policy. or its sider (ma William, at until 1996. engage fails to a Chev- government Azarte, at jority op.); itself almost en- analysis ron and devotes statutory bar post-departure line with the efficiency tirely defending the review, of Federal judicial the Code According gov- post-departure bar. provided “[a] at the time that Regulations ernment, regulatory bar is consistent a motion to reconsider Congress’s purpose passing with the of a be made behalf shall not deny IIRIRA —“to make easier ad- subject deportation person who is the aliens and easier to mission to inadmissible to his proceedings subsequent aliens from the United deportable remove § 3.2 from the United States.” 8 C.F.R. 104-469, pt. at H.R.Rep. No. States.” 1003.2(d) (1995) (current §at versions (1996). Invalidating post-depar- BIA, (2008), governing motions before bar, us, government tells would be ture 1003.23(b)(1)(2008), governing mo congressional pur- with this inconsistent IJ). Congress en tions before an When pose. acted IIRIRA substantially. changed
scheme
matter,
government’s
initial
As an
presents
non-sequitur.
policy argument
sig-
point,
accomplished
IIRIRA
two
On
Merely
because the
First,
repealed
Act
goals.
nificant
purpose
1105a(c)
may be consistent with
broad
juris-
circuit courts
granted
IIRIRA,
it does not follow
removal.
diction to review orders of
Wil-
IIRIRA,
regulation
is inconsistent
liam,
330;
invalidating
Pub.L.
see
were we to as-
104-208,
C,
purpose.
Even
110 Stat. with
No.
div.
*20
1229a(c)(7)(C)(iv)(IV).
of§
gress's
and motivated the inclusion
concern
Lee,
purpose
regulatory
that the sole
of the IIRIRA
fiat.”
sume
the basis articulated it self.”); prohibits departed filing Cherokee Nation Okla. v. Nor alien (10th ton, 1074, Cir.2004); motion to reopen 389 F.3d 1078 reconsider or “subse quent to his or her Transp. Dep’t departure Utahns Better v. U.S. from the (10th 1152, trumps United States” Transp., general provi 305 F.3d Cir. 2002). authorizing sion an “Immigration Judge nor the BIA Neither the IJ based upon time, his or her own any motion at Rosillo-Puga’s its dismissal of reopen ... any [to] reconsider case in My colleagues timeliness. offer no reason which he or she has made a decision.” 8 depart general rule of Chen 1003.23(b)(1).12 C.F.R. ery. may uphold thus not the BIA’s We ground decision on the of untimeliness.11 Contrary view, majority’s to the there is simply no conflict between provi these two II speaks sions. One authority Although I would invalidate the chal- IJ, rights the other to the of aliens. The 1003.23(b)(1), lenged portion §of I note general provision in regulation allows briefly my disagreement further with the an IJ “at time” to reopen or reconsid majority’s that an conclusion IJ lacks sua bar, er a case. The post-departure by sponte authority to reconsider or contrast, says nothing power about the proceeding after an alien has de- Rather, an IJ. it provides that “A motion parted the Maj. Op. United States. or to reconsider shall not be My colleagues 1159-60. reach this conclu- by person made ... a ... subsequent to by invoking sion the “canon of his or her from the United that, construction when there is an appar- States.” a proper reading Under specific ent conflict between a provision 1003.23(b)(1), although may one, and a general specific more the more move for reopening reconsideration or fol governs.” Shawnee Tribe v. United lowing departure, always an IJ retains the (10th States, 1204, Cir.2005) 423 F.3d discretionary authority to sponte sua re omitted). (quotation view, In their open or reconsider a case.13 already majority This circuit has passing determined that 12. The also notes in that "we ninety-day statutory filing deadline for jurisdiction do not have petition- to consider reopen may Riley be tolled. See v. sponte er's claim that the [IJ] should have sua INS, 1253, (10th Cir.2002). 310 F.3d 1257-58 reopened proceedings [8 under C.F.R. Accordingly, jurisdictional it is not a limit and ] because there are no stan- sponte. should not be raised sua Other cir judge agency’s dards which to exercise Socop-Gonzalez cuits are in accord. See v. Maj. Op. of discretion.” (quotation at 1160 INS, 1176, (9th Cir.2001) 272 F.3d 1190-93 omitted). true, Although may it has (en INS, banc); 124, Iavorski v. 232 F.3d 130- Here, no relevance to this case. the IJ did (2d Cir.2000). My colleagues apparently not exercise his discretion not to reconsider assume that the deadline contained in Quite reopen. contrary, the IJ con- 1229a(c)(6)(B) similarly jurisdic not a legal cluded as a matter that he lacked discre- Gonzales, tional restriction. v. Pervaiz Cf. entirely, given tion bar. (7th Cir.2005) (holding that the legal That conclusion is reviewable 180-day filing applicable deadline to motions court, 1252(a)(2), see 8 U.S.C. and it is from removal orders filed in absen erroneous. See infra. Gonzales, jurisdictional); Borges tia is not (3d Cir.2005);(same); 402 F.3d 405-06 point, 13. On INS, BIA is of the view that it can Lopez v. Cir. 1999) (same). Reno, sponte reconsider or a case sua But see Anin v. (11th Cir.1999) "exceptional (holding pursuant circumstances” to 8 that the which, noted, 180-day filing "jurisdictional deadline is 1003.2 is function- here, mandatory”). ally regulation identical to the at issue
III reasons, I would foregoing
For the of 8 challenged portion
strike down *23 1003.23(b)(1) step under the first unnecessary I consider
of Chevron.14 authority of sponte the sua us to reach reopen Rosillo-
an IJ to reconsider case, to reach were we
Puga’s but the IJ does
issue, I conclude hav authority. majority
possess such counts, I on both otherwise
ing concluded
respectfully dissent. WACKERLY, II, Ray
Donald
Petitioner-Appellant, Warden, WORKMAN,
Randall G. Penitentiary,
Oklahoma State
Respondent-Appellee. 07-7034, 07-7056.
Nos. Appeals, Court of States Circuit.
Tenth 15, 2009.
Sept. challenged portion of Assuming the applies the BIA rather than to except that it valid, regu- See, J-J, agree that the I e.g., re 21 I & N Dec. the IJ. 3.2(a) (1997)) Rosillo-Puga, that it is not applies to (1997) lation (citing C.F.R. 1003.2(a) arbitrary capricious applied, and that it (current at 8 C.F.R. version process. due (1998)); does not violate Maj. Op. at n. 7. see also