Contreras–Bocanegra v. Holder

• Decision Date: 30 January 2012
• Docket Number: No. 10–9500.,10–9500.
• Citation: 678 F.3d 811
• Parties: Jesus CONTRERAS–BOCANEGRA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, American Immigration Council; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild; Post–Deportation Human Rights Project; Rocky Mountain Immigrant Advocacy Network, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

678 F.3d 811

Jesus CONTRERAS–BOCANEGRA, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent,American Immigration Council; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild; Post–Deportation Human Rights Project; Rocky Mountain Immigrant Advocacy Network, Amici Curiae.

No. 10–9500.

United States Court of Appeals,Tenth Circuit.

Jan. 30, 2012.

Held Invalid

8 C.F.R. § 1003.2(d)Edward L. Carter, (J. Christopher Keen, with him on the briefs) Keen Law Offices, Orem, UT, for Petitioner.

Greg D. Mack, Senior Litigation Counsel, (Alison R. Drucker, Senior Litigation Counsel, with him on the brief) United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Trina A. Realmuto, National Immigration Project, Boston, Massachusetts, (Beth Werlin and Mary Kenney, American Immigration

Council, Washington, D.C., with her on the briefs) for amici curiae.

Before BRISCOE, McKAY, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON, Circuit Judges.

Opinion On Rehearing En Banc

LUCERO, Circuit Judge.

We granted en banc rehearing of this case to determine whether the so-called post-departure bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress' 1996 amendment to the Immigration and Nationality Act (“INA”). The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals (“Board”) contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text.

In Rosillo–Puga v. Holder, 580 F.3d 1147, 1156 (10th Cir.2009), a divided panel of this court upheld the post-departure bar as an authorized exercise of the Attorney General's rulemaking authority. The panel in the case presently before us considered itself bound by that precedent. After Rosillo–Puga was decided, the tide turned, and six circuits have consecutively invalidated the regulation. Rather than stand alone in upholding the post-departure bar, we choose to overturn Rosillo–Puga and its progeny. We hold that the subject regulation impermissibly interferes with Congress' clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).

I

Jesus Contreras–Bocanegra, a native and citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, Contreras received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Security detained Contreras ¹ upon his return from a visit to Mexico and placed him in removal proceedings on the ground that his conviction rendered him inadmissible. An Immigration Judge (“IJ”) ordered him removed from the United States, and the Board affirmed the order. This court subsequently denied Contreras' petition for review. See Contreras–Bocanegra v. Holder, 376 Fed.Appx. 817, 823 (10th Cir.2010).

A few days after the Board dismissed his appeal, the government removed Contreras to Mexico. Contreras obtained new representation and, from Mexico, filed a timely motion to reopen his removal proceedings based on ineffective assistance of counsel.² The Board denied Contreras' motion on jurisdictional grounds, concluding pursuant to the post-departure bar that it lacked authority to review a motion to reopen filed by a noncitizen outside of the United States.

Contreras petitioned for review of the Board's decision, arguing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229a(c)(7) to file a motion to reopen. As noted, the Contreras panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar. Contreras–Bocanegra v. Holder, 629 F.3d 1170, 1172 (10th Cir.2010) (relying on Rosillo–Puga, 580 F.3d at 1156). We then granted rehearing en banc to reconsider our decision in Rosillo–Puga.

II

A

For more than half a century, the motion to reopen was a creature of administrative prudence rather than a statutory right. Shortly after establishing the Board in the early 1940s, the Attorney General authorized it to reopen concluded immigration proceedings at its discretion. 8 C.F.R. § 90.9 (1941) (authorization to hear motions); 8 C.F.R. § 150.8 (1941) (discretion to reopen). In 1952, the Attorney General limited that discretion by prohibiting the Board from reviewing a motion to reopen “made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States.” 8 C.F.R. § 6.2 (1952). The Attorney General later imposed evidentiary requirements on motions to reopen, see8 C.F.R. § 3.8(a) (1962), and restricted the number of and time for filing such motions, see8 C.F.R. § 3.2(c)(2) (1997). Although the Attorney General has amended the motion to reopen regulation several times, the content of the post-departure bar remains substantially the same today. See8 C.F.R. § 1003.2(d).

When Congress amended the INA to provide federal courts of appeals with jurisdiction to review final orders of deportation in 1961, it created a statutory counterpart to the post-departure bar that precluded judicial review of removal orders of noncitizens who were not physically present in the country. Act of Sept. 26, 1961, Pub. L. No. 87–301, § 5(a), 75 Stat. 650, 653 (1961) (codified at 8 U.S.C. § 1105a(c) (1964)) (“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.”). For the next three decades, departure from the United States thus ended all immigration proceedings, both administrative and judicial.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) enacted two key changes to this scheme. First, Congress adopted several amendments to “expedite the removal of aliens.” Kucana v. Holder, ––– U.S. ––––, 130 S.Ct. 827, 838, 175 L.Ed.2d 694 (2010). IIRIRA mandated that the government deport noncitizens no later than 90 days after the entry of a removal order. 8 U.S.C. § 1231(a)(1); see also8 U.S.C. § 1229c(a)(2)(A), (b)(2) (limiting voluntary departure period to 60 or 120 days). At the same time, Congress lifted the ban on post-departure judicial review, allowing noncitizens who had departed or been removed from the United States to seek review of their removal orders from abroad. See8 U.S.C. § 1105a(c) (1996) (repealed).

Second, IIRIRA codified the right to file one statutory motion to reopen. See8 U.S.C. § 1229a(c)(7) (“An alien may file one motion to reopen proceedings under this section....”). In the words of the Supreme Court, this change “transformed the motion to reopen from a regulatory procedure to a statutory form of relief.” Dada v. Mukasey, 554 U.S. 1, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008). Congress also codified most of the pre-IIRIRA regulatory limitations on motions to reopen. See§ 1229a(c)(7)(A) (codifying the numeric limitations previously found at 8 C.F.R. § 3.2(c)(2) (1997)); § 1229a(c)(7)(B) (codifying substantive and evidentiary requirements previously found at 8 C.F.R. § 3.2(c)(1) (1997)); § 1229a(c)(7)(C)(i) (codifying the filing deadline formerly at 8 C.F.R. § 3.2(c)(2) (1997)). Notably, however, Congress did not codify the regulatory post-departure bar.

Nevertheless, when the Attorney General issued regulations implementing IIRIRA, it repromulgated the post-departure bar, placing a geographic limitation on the newly created statutory right to file a motion to reopen. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,321 (Mar. 6, 1997) (codified at 8 C.F.R. § 1003.2(d)). That regulation, currently in effect, commands:

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). Necessarily, we must determine the validity of this regulation's incursion into the statutory right to file a motion to reopen.

B

We first confronted this issue in Rosillo–Puga v. Holder, 580 F.3d 1147 (10th Cir.2009). Rosillo–Puga filed a motion to reopen or reconsider his immigration case three years after his removal. The IJ denied his motion, relying on the post-departure bar, and the Board affirmed. Rosillo–Puga petitioned this court for review of the Board's decision, arguing that the post-departure bar was an invalid restriction on his statutory right to file a motion to reopen. We disagreed and held that the post-departure bar did “not contravene” § 1229a(c)(7). 580 F.3d at 1156.³ We concluded that the statute was “not clear and unambiguous” as to whether a motion to reopen could be filed by a departed noncitizen, and that the regulation's limitation was reasonable. 580 F.3d at 1156–57 (analyzing the issue under two-step test dictated by Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see also Mendiola v. Holder, 585 F.3d 1303, 1311 (10th Cir.2009) (reaffirming Rosillo–Puga ).

When this court issued Rosillo–Puga, only one other circuit had addressed the validity of the post-departure bar regulation. See William v. Gonzales, 499 F.3d 329 (4th Cir.2007) (invalidating the post-departure bar regulation). ⁴ In Rosillo–Puga, the panel majority agreed with the views of the dissenting...