Espinal v. Attorney Gen. of The United States

• Decision Date: 03 August 2011
• Docket Number: No. 10–1473.,10–1473.
• Citation: 653 F.3d 213
• Parties: Ramon Julio PRESTOL ESPINAL, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

653 F.3d 213

Ramon Julio PRESTOL ESPINAL, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–1473.

United States Court of Appeals, Third Circuit.

Argued April 27, 2011.Filed: Aug. 3, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld Invalid8 C.F.R. § 1003.2(d) Jacqueline Brown Scott (Argued), San Francisco, CA, Attorney for Petitioner.Eric H. Holder, Yanal H. Yousef (Argued), Thomas W. Hussey, Ann C. Varnon, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Attorneys for Respondent.Beth J. Werlin (Argued), American Immigration Council, Washington, DC, Trina A. Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA, Attorneys for Amicus–Petitioner.Before: SLOVITER, GREENAWAY, JR., Circuit Judges and POLLAK, ^* District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Ramon Prestol Espinal (referred to by the parties as Prestol) petitions for review of the decision of the Board of Immigration Appeals (“BIA”) that it lacked jurisdiction over Prestol's motion to reconsider the BIA's denial of relief because Prestol had been removed from the United States. Prestol's petition requires us to decide whether the Attorney General's regulation barring aliens who have been removed from the United States from filing a motion to reconsider and/or reopen, 8 C.F.R. § 1003.2(d), otherwise known as the post-departure bar, is inconsistent with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1229a(c)(6)(A), (7)(A), which specifically grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right.

I.¹

Prestol was born in the Dominican Republic but lived in the United States from 1982 until 2009. In January 2009, the Department of Homeland Security (“DHS”) charged Prestol with being removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) as an alien present in the United States without being admitted or paroled. In February 2009, DHS also charged him pursuant to sections 212(a)(2)(A)(i) and (a)(2)(B) of the INA with being removable as an alien convicted of an offense relating to a controlled substance and an alien convicted of two or more offenses involving crimes of moral turpitude. These charges of removability were based on Prestol's 2004 convictions for possession of a controlled substance and violating a protective order.

In April 2009, Prestol admitted the factual allegations underlying his notice to appear and was found removable as charged. However, Prestol applied for asylum, withholding of removal and Convention Against Torture (“CAT”) protection alleging that because of his previous assistance to the Drug Enforcement Agency he would be targeted for violence by drug dealers if he returned to the Dominican Republic. On June 23, 2009, the Immigration Judge (“IJ”) denied Prestol's applications for relief. On November 3, 2009, the BIA affirmed the IJ and twenty-one days later, November 24, 2009, Prestol was removed from the United States to the Dominican Republic. On December 3, 2009, Prestol filed a timely motion to reconsider with the BIA. On January 19, 2010, the BIA denied the motion to reconsider based on what it deemed a lack of jurisdiction resulting from Prestol's removal from the United States. Prestol petitions for review of this decision.

II.²

We review the BIA's legal conclusions de novo. Patel v. Att'y Gen., 599 F.3d 295, 297 (3d Cir.2010). Where an agency's regulation allegedly conflicts with the governing statute, we employ the analysis prescribed by Chevron U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The focus of Chevron is aimed at determining and giving effect to Congress' “unambiguously expressed intent.” Id. at 843, 104 S.Ct. 2778. Under Chevron step one, “we must first determine if the statute is silent or ambiguous with respect to the specific issue of law in the case, using traditional tools of statutory construction to determine whether Congress had an intention on the precise question at issue.” Lin–Zheng v. Att'y Gen., 557 F.3d 147, 155 (3d Cir.2009) (en banc) (internal quotation and citation omitted). If Congress' intent is clear, our inquiry is at an end as the agency is required to give effect to the unambiguously expressed intent of Congress. Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. If the statute is ambiguous, we move to step two and determine if the agency's interpretation of the statute, as expressed in the regulation, is reasonable and entitled to deference. Id.

III.

A.

Before delving into the Chevron analysis, we briefly outline the relevant statutory and regulatory framework. The regulatory right to file a motion to reopen or reconsider with the BIA has existed since 1940. 5 Fed.Reg. 3502, 3504 (Sept. 4, 1940) (codified at 8 C.F.R. §§ 90.9–90.10 (1941)). In 1952, the Department of Justice (“DOJ”) issued a regulation barring the BIA from reviewing such a motion filed by a person no longer present in the United States. 17 Fed.Reg. 11469, 11475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2 (1953)).

That same year, 1952, Congress passed the McCarran–Walter Act, which established the structure of current immigration laws. Pub.L. No. 82–414, § 242(c), 66 Stat. 163, 210 (1952) (codified at 8 U.S.C. § 1252(c) (1952)). In 1961, Congress amended the law to provide courts of appeals with jurisdiction to review final orders of deportation through a petition for review. Pub.L. No. 87–301, § 5(a), 75 Stat. 650, 651 (1961) (codified at 8 U.S.C. § 1105a(c) (1962)). However, the 1961 amendment contained a post-departure provision paralleling the regulatory post-departure bar on motions to reopen/reconsider. Specifically, the 1961 amendment provided: “An order of deportation or of exclusion shall not be reviewed by any court if the alien ... has departed from the United States after issuance of the order.” Id. The DOJ issued implementing regulations whereby it repromulgated the post-departure bar to motions to reopen/reconsider. 27 Fed.Reg. 96, 96–97 (Jan. 5, 1962) (codified at 8 C.F.R. § 3.2 (1962)). In April 1996, the DOJ issued a regulation limiting aliens to one motion to reopen and one motion to reconsider and providing 90 and 30 days respectively for the alien to file each motion. 61 Fed.Reg. 18900, 18901–5 (Apr. 29, 1996) (codified at 8 C.F.R. § 3.2 (1997)).

Shortly thereafter, Congress passed IIRIRA, which made several significant changes to immigration law. Pub L. No. 104–208, div. C, 110 Stat. 3009–546 (1996). For the first time, Congress created a statutory right for the alien to file a motion to reconsider and a motion to reopen with the BIA (previously such a right existed only pursuant to regulation). IIRIRA § 304(a)(3) (currently codified at 8 U.S.C. § 1229a(c)(6), (7)). Congress also codified in the statute some of the pre-existing regulatory limitations for such motions, including the substantive requirements for motions to reopen, the numeric limitation and time limits. Id. Notably, when Congress enacted IIRIRA in 1996, it did not codify or adopt the post-departure bar regulation. See Dada v. Mukasey, 554 U.S. 1, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (outlining the regulations IIRIRA codified).

IIRIRA also repealed the post-departure bar to judicial review of petitions for review that Congress originally imposed in 1961. IIRIRA § 306(b), 110 Stat. 3009–612 (repealing 8 U.S.C. § 1105a). Additionally, Congress adopted a 90–day period for the government to deport a person who has been ordered removed. IIRIRA § 305(a)(3) (currently codified at 8 U.S.C. § 1231(a)(1)).

In 1997, the DOJ promulgated regulations implementing IIRIRA. Notwithstanding the fact that Congress had for the first time codified the right for an alien to file motions to reconsider and reopen with the BIA and eliminated the post-departure bar for judicial review, the DOJ repromulgated the post-departure bar for motions to reconsider/reopen filed with the BIA, the regulation at issue in this case. 62 Fed.Reg. 10312, 10321, 10331 (Mar. 6, 1997) (currently codified at 8 C.F.R. § 1003.2(d)). The post-departure bar regulation currently provides: “A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.” 8 C.F.R. § 1003.2(d).

B.

With that background before us, we move to the Chevron statutory analysis. “[T]he starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). The Supreme Court has instructed that “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” United States v. Heirs of Boisdore, 49 U.S. 113, 122, 8 How. 113, 12 L.Ed. 1009 (1850).

The motion to reconsider provision of IIRIRA provides that “[t]he alien may file one motion to reconsider a decision that the alien is removable from the United States.” 8 U.S.C. § 1229a(c)(6)(A). Similarly, § 1229a(c)(7)(A) provides that “[a]n alien may file one motion to reopen proceedings.” It follows from the plain language of this statute that from the date of the final order of removal, the alien has 30 days to exercise his or her right to seek reconsideration and 90 days to seek reopening. Id. § 1229a(c)(6)(B), (7)(C)(i). The INA defines “alien” broadly as “any person not a citizen or national of the United States.” INA § 101(a)...