436 F.3d 484 (5th Cir. 2006), 05-60159, Singh v. Gonzales

Docket Nº:05-60159
Citation:436 F.3d 484
Party Name:Onkar SINGH, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
Case Date:January 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 484

436 F.3d 484 (5th Cir. 2006)

Onkar SINGH, Petitioner,

v.

Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-60159

United States Court of Appeals, Fifth Circuit.

Jan. 11, 2006

Page 485

Martin Resendez Guajardo, San Francisco, CA, for Singh.

William Clark Minick, Civ. Div., Linda S. Wernery, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Anne M. Estrada, U.S. INS, Dallas, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petitions for Review of Orders of the Board of Immigration Appeals

Before JONES, WIENER, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

In these consolidated cases, Petitioner Onkar Singh petitions for review of two

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decisions of the Board of Immigration Appeals ("the Board"): (1) the Board's denial of Singh's motion to reopen his removal proceedings because of that motion's untimeliness; and (2) the Board's later denial of Singh's motion to reconsider its initial denial of his untimely motion to reopen. As we conclude that the Board did not abuse its discretion in rejecting Singh's two motions, we deny Singh's petitions for review.

I. FACTS AND PROCEEDINGS

Singh, a citizen of India, entered the United States without inspection on May 13, 2000. That same day, the Immigration and Naturalization Service ("INS") served Singh with a Notice to Appear, charging him with being removable under § 212(a)(6)(A)(i) of the Immigration and Naturalization Act ("INA") as "[a]n alien present in the United States without being admitted or paroled, or who arrive[d] in the United States at any time or place other than as designated by the Attorney General." 1 Singh and his counsel appeared before the Immigration Judge ("IJ") in Dallas, Texas, for an initial hearing on August 15, 2000. At that hearing, Singh admitted the factual allegations contained in the Notice to Appear, admitted his removability as a matter of law, and stated his intention to seek asylum and withholding of removal. The IJ scheduled Singh's removal hearing for November 20, 2000. Singh failed to appear at the November 20th hearing, so in absentia the IJ ordered Singh's removal.

On January 21, 2001, Singh timely filed a motion with the IJ to reopen his removal proceedings and have the in absentia removal order rescinded. The IJ denied his motion, and Singh appealed to the Board. On November 21, 2001, the Board dismissed Singh's appeal, upholding the IJ's denial of Singh's motion to reopen.

Nothing transpired in this matter for almost three years, when, on November 16 of 2004, Singh filed a "Motion to Vacate In Absentia Order and Reopen Proceedings." The Board denied this motion as untimely on February 4, 2005. It reasoned that under its regulations, 2 "a motion to reopen in any case previously the subject of a final decision by the Board must be filed no later than 90 days after the date of the decision." Singh then petitioned this court for review of the Board's denial of his motion to reopen. 3

After petitioning us for review, Singh returned to the Board on March 4, 2005, with a motion for it to reconsider its denial of his motion to reopen. Singh contended that his 2004 motion to reopen was not subject to the general 90-day time limit of 8 U.S.C. § 1229a(c) (6) (C) (i) and 8 C.F.R. § 1003.2 (c) (2) . Rather, according to Singh, 8 C.F.R. § 1003.23 (b) (4) (ii) and 8 U.S.C. § 1229a(b)(5)(C) governed the timeliness of his motion to reopen. 4 Yet again, the Board rejected Singh's argument and denied his motion to reconsider. The Board reasoned that, as to the motion to reopen and rescind a removal order entered in absentia authorized by 8 U.S.C. § 1229a(b)(5)(C) and 8 C.F.R. § 1003.23(b)(4)(ii), an alien may file only with the IJ . The Board thus construed Singh's 2004 motion to reopen not as a motion to reopen and rescind the in absentia

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removal order entered against Singh by the IJ in 2001, but as a motion to reopen the Board's dismissal of Singh's appeal from the IJ's denial of Singh's January 21, 2001, motion to reopen and rescind the in absentia removal order. Such a motion to reopen is subject to the 90-day time limit contained in 8 U.S.C. § 1229a(c)(6)(C)(I) and 8 C.F.R. § 1003.2(c)(2). Accordingly, the Board denied Singh's motion to reconsider. Singh then filed a second petition for review with this court. 5

II. ANALYSIS

A. Standard of Review

We review the Board's denial of both a motion to reopen and a motion for reconsideration "under a highly deferential abuse-of-discretion standard." 6 "[S]o long as [the Board's decision] is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach," we must affirm the Board's decision. 7 Our review of the Board's legal conclusions is less obsequious, though: We review legal conclusions de novo unless a conclusion embodies the Board's interpretation of an ambiguous provision of a statute that it administers 8; a conclusion of the latter type is entitled to the deference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council . 9 Similar deference is owed to the Board's interpretations of its own regulations. 10

B. Discussion

1. Motions to Reopen Distinguished From Motions to Reconsider Removal Decisions

The INA affords an alien who has been adjudicated to be removable with the statutory right to file two different types of motions aimed at having an adverse decision overturned: (1) a motion to reopen his proceedings, 11 and (2) a motion to reconsider the removal decision. 12 Substantively, a motion to reopen a removal order must "state . . . new facts that will be proven at a hearing to be held if the motion is granted, and [must] be supported by affidavits or other evidentiary

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material." 13 "[O]ne motion to reopen" is all that the INA permits 14; and, generally, that one motion must be filed "within 90 days of the date of entry of a final administrative order of removal." 15 This general 90-day time limit does not apply, though, if, instead of filing a motion to reopen under 8 U.S.C. § 1229a(c)(6), the alien files a motion to reopen under 8 U.S.C. § 1229a(b)(5) .

Section 1229a (b) (5) sets forth the "[c]onsequences [to an alien] of [his] failure to appear" for his removal proceedings. 16 Under § 1229a(b)(5), an alien who fails to appear for his removal proceeding (such as Singh) "shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that" the alien received notice of his hearing and that he is in fact removable. 17 In contrast with other non-in absentia removal orders – which may be overturned through a motion to reopen filed under 8 U.S.C. § 1229a(c) (6) – an in absentia removal order

may be rescinded only – –

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances . . ., or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice [of his removal hearing]. 18

Such a § 1229(b)(5)(C) motion to reopen is what Singh purported to file with the Board in 2004. The Board, however, interpreted his filing as a § 1229(c)(6) motion to reopen.

Motions to reconsider removal decisions are governed by 8 U.S.C. § 1229a(c)(5). An alien is allotted just "one motion to reconsider." 19 That motion must "specify the errors of law or fact in the previous order . . . and be supported by pertinent authority." 20

2. Regulatory Implementation of the INA

On the INA's statutory foundation, the Attorney General has constructed an administrative dichotomy that divides the review of removal orders between two fora: (1) the IJ, who can hear motions to reopen and motions to reconsider his removal orders 21; and (2) the Board, which hears appeals from orders of IJs, as well as motions to reopen and to reconsider its own appellate decisions. 22 The INA itself, however, does not envision the use of such a bifurcated review process: The Board is purely an administrative creation. 23 The INA merely establishes the two types of motions to reopen (a § 1229a(b) (5) (C) motion to reopen an in absentia removal order and a § 1229a(c)(6) general motion to reopen) and the motion to reconsider; because the INA does not create the Board, it does not specify to which adjudicator – the Board or the IJ – a § 1229a(b) (5) (C)

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motion to reopen an in absentia removal order (which is the type of motion Singh purported to file in 2004) must be presented.

The Board has endeavored to fill this lacuna through its implementing regulations. The Board's regulations are not a model of clarity, however, for the purpose of determining in which forum (the IJ or the Board) an alien must file a § 1229(b)(5)(C) motion to reopen an in absentia removal order. For example, 8 C.F.R. § 1003.23 24 – titled "Reopening or reconsideration before the Immigration Court" 25 – is the specific regulatory provision that addresses the extended time limits within which motions to reopen in absentia removal orders may be filed. In parallel, a subsection of 8 C.F.R. § 1003.2 – titled "Reopening or reconsideration before the...

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