Arevalo v. Barr, Nos. 18-1834

• Decision Date: 14 February 2020
• Docket Number: 19-1250,Nos. 18-1834
• Citation: 950 F.3d 15
• Parties: Selvin Ovidio AREVALO, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

950 F.3d 15

Selvin Ovidio AREVALO, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Nos. 18-1834

19-1250

United States Court of Appeals, First Circuit.

February 14, 2020

David C. Bennion, with whom Free Migration Project was on brief, for petitioner.

Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, John S. Hogan, Assistant Director, Office of Immigration Litigation, Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, and Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

Before Kayatta, Selya, and Stahl, Circuit Judges.

SELYA, Circuit Judge.

In its present posture, this case turns largely on the meaning of the word "recalendar," as that word is used in the immigration context. Here, the parties supplied no particularized meaning for the word when they used it in the pertinent pleadings. Because the word is not specifically defined either in any applicable statutory provision or in any relevant regulation, we give "recalendar" its plain and natural meaning. The Board of Immigration Appeals (BIA) interpreted the word correctly and applied it faithfully. Accordingly, we uphold the challenged orders and deny the two petitions for judicial review.

The petitioner, Selvin Ovidio Arevalo, is a Guatemalan national. He entered the United States in 2000 at age fourteen without documentation. The government initiated removal proceedings against the petitioner in 2010, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I).

The petitioner conceded removability but cross-applied for asylum and withholding of removal, claiming persecution on account of both political opinion and membership in a particular social group. See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A). At the same time, he sought protection under the United Nations Convention Against Torture (CAT). All of his claims were based on his concerns about violent gang recruitment of young, apparently wealthy adults in Guatemala.

After a hearing, an immigration judge (IJ) denied the petitioner's claim for asylum as untimely, see id. § 1158(a)(2)(B), noting that, had the claim been timely filed, she would have denied it on the merits. And although the IJ credited the petitioner's testimony, she concluded that the petitioner's generalized fear of dangerous and violent conditions did "not give rise to a basis for a claim for ... withholding of removal." Finally, the IJ found no evidence that the petitioner would be subject to torture "by or at the instigation of or with the consent or acquiescence of a public official," 8 C.F.R. § 1208.18(a)(1), should he be repatriated. Accordingly, she denied the petitioner's CAT claim.

The petitioner appealed to the BIA. On November 18, 2010, the BIA upheld the IJ's decision, finding that the petitioner was not entitled to asylum, withholding of removal, or CAT protection. The petitioner filed a timely petition for judicial review.

After the petition for review was docketed and fully briefed, we entered an order, with the parties' consent, remanding the case to the BIA. Our remand order was premised on the government's representation that it intended to exercise prosecutorial discretion with respect to the petitioner, at least temporarily, by administratively closing the case. When remanding, though, we retained jurisdiction over the petition for review.

Once the case had been remitted to the BIA, the government filed an unopposed motion to close the proceedings administratively. The government's motion explained that if "either party" desired for any reason "to place this matter back on the active calendar or docket, that party w[ould] file a motion to recalendar with this Board." The BIA granted the unopposed motion and administratively closed the case in April of 2013.

Shortly thereafter, the parties filed a stipulation of dismissal in this court. Although the order closing the case did not expressly address the status of the November 18 decision, the parties filed a stipulation making pellucid that the administrative closure removed the entry of that decision from the docket. In the parties' words: "there is no longer a final order of removal." This construction provided two benefits to the petitioner: it clarified that he was not subject to a live order of removal; and it effectively preserved his ability to reactivate his petition for review of the November 18 decision should the administrative closure be revoked.

Consistent with the parties' agreement, we dismissed the pending petition for judicial review and entered a judgment of voluntary dismissal. Thereafter, the case laid dormant for approximately five years. But after the 2016 presidential election and the ensuing change in administration, the government rethought its earlier decision to exercise prosecutorial discretion favorably to the petitioner and moved before the BIA to "reinstate" the case. The petitioner offered no objection, and the BIA granted the motion: it decreed that its "original decision of November 18, 2010, now takes effect."

Displeased with the BIA's reinstatement of its earlier decision, the petitioner filed a new petition for judicial review on August 29, 2018. The same day, the petitioner asked the BIA to reconsider its order reinstating its earlier decision. Eschewing the merits of his claims for asylum, withholding of removal, and CAT protection, the petitioner's motion to reconsider focused exclusively on the BIA's order reinstating its earlier decision. On February 7, 2019, the BIA issued a written rescript denying the petitioner's motion to reconsider. The petitioner responded by filing yet another petition for judicial review. Once briefs were filed, we scheduled both petitions for oral argument on January 7, 2020; heard argument on both petitions as a unit; and took the matter under advisement.

The petitions for review, taken collectively, raise a common issue: whether the BIA acted appropriately in placing the case back on its docket and proceeding from where it left off before the case was administratively closed. This issue turns on the meaning of "recalendar," as that word was used by the parties in the government's unopposed motion, which led to the administrative closure.

"Administrative closure is a procedural convenience that may be granted if both parties to the removal proceedings agree, but it does not constitute a final order." Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007). Instead, administrative closure "temporarily removes a case from ... the Board's docket." Id. Such a temporary displacement of a case from the BIA's active docket effectively pauses the case. Following an administrative closure, either party may seek to undo the pause — as the government did here — by filing a motion to reinstate.

In this instance, the government's motion to reinstate was unopposed. When the BIA granted the unopposed motion, it recalendared the case, that is, it put the petitioner right back where he was before the parties agreed to the closure: subject to an operative order of removal, yet still able to secure appellate review. The petitioner takes umbrage: he points out that several years had passed since the case was administratively closed and argues that the BIA, either directly or by recourse to the IJ, had an obligation to explore interim developments before reinstating its earlier decision. We do not agree.

The propriety of the BIA's action hinges on the meaning of the word "recalendar" — the key word in the government's unopposed motion for administrative closure. The parties concede that no applicable statute or regulation supplies a definition of the word "recalendar" as used in this context. We therefore interpret the word according to its plain and natural meaning. Cf. Correia v. Fitzgerald, 354 F.3d 47, 55 (1st Cir. 2003) (explaining that "[c]ourts should construe stipulations in accordance with accepted principles of general contract law"); Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 178 (1st Cir. 1995) (stating that canon of contract interpretation "teaches that contracts containing unambiguous language must be construed according to their plain and natural meaning").

We conclude that "recalendar" means simply to reinstate the case to the active docket in the same posture as it occupied when it was paused for administrative closure. The dictionary defines the prefix "re-" as "again" and notes that it is to be "joined" to a "second element." Webster's Third New International Dictionary of the English Language Unabridged 1888 (Philip Babcock Gove ed., 2002). Here, the second element is the verb "calendar," which means "to enter (as a name or event) in a calendar or list." Id. at 316. Thus — in the present context — "recalendar" means to enter on the calendar again. That is exactly what the BIA did. Its 2018 order, like the government's motion, used the word "reinstate," and the accepted meaning of reinstate is "to ... place again (as in ... a former position)" or "to replace in an original or equivalent state." Id. at 1915. In other words, the BIA recalendared the petitioner's case by reinstating it, that is, by placing it back on the active docket in essentially the same posture that it occupied immediately before the administrative closure occurred. It again became a fully briefed administrative appeal from the IJ's order of removal, awaiting only the entry of a final decision by the BIA.

In an effort to draw the sting from this reasoning, the petitioner argues that the five-year hiatus between the administrative closure and the case's reinstatement resulted in a final resolution based on an "old and stale record." He argues that due process required a new hearing to explore the effects of the passage of time on his claims for relief. This argument is woven out of whole...