Bolieiro v. Holder

• Decision Date: 27 September 2013
• Docket Number: No. 12–1807.,12–1807.
• Citation: 731 F.3d 32
• Parties: Lucia Maria BOLIEIRO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

731 F.3d 32

Lucia Maria BOLIEIRO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1807.

United States Court of Appeals,

First Circuit.

Sept. 27, 2013.

Kerry E. Doyle, for petitioner.

Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, with whom Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, were on brief, for respondent.

Before HOWARD, LIPEZ, and KAYATTA, Circuit Judges.

LIPEZ, Circuit Judge.

Lucia Maria Bolieiro was the respondent in lengthy removal proceedings involving her reentry into the United States after her mandated removal. These proceedings culminated in her filing of a motion to reopen with the immigration judge (“IJ”) that raised due process and ineffective assistance of counsel claims. After that motion and a subsequent motion to reconsider were both denied, she appealed to the Board of Immigration Appeals (“BIA”). Relying on a set of regulations known collectively as “the post-departure bar,” 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1), the agency concluded that it lacked jurisdiction to entertain her motion and dismissed her appeals.

In Perez Santana v. Holder, 731 F.3d 50, No. 12–2270 (1st Cir. Sept. 27, 2013), which we issue in conjunction with this opinion, we hold that the post-departure bar conflicts with the unambiguous language of the motion to reopen statute. See8 U.S.C. § 1229a(c)(7)(A). As a result, the agency's regulation, in the circumstances applicable to this petition for review, cannot preclude Bolieiro from vindicating her statutory right to seek reopening of her removal proceedings. Although the government seeks to distinguish Bolieiro's case on the basis that her motion was filed outside the ninety-day deadline set forth in the motion to reopen statute, the agency's denials of Perez Santana's and Bolieiro's petitions ultimately rest on the same basic rationale: the post-departure bar prevents the agency from entertaining their motions to reopen.

Under well-settled rules governing agency review, we are unable to substitute an alternative basis for the agency's conclusion and therefore cannot distinguish the two cases on the grounds the government now advances. Thus, our holding in Perez Santana compels us to grant Bolieiro's petition, and we remand for further proceedings before the agency.

I.

Bolieiro's removal proceedings have followed a long and winding road through the immigration system. This appeal, however, requires knowledge of only a relatively narrow set of facts. We briefly recount them.

A. Factual Background

In 1972, Bolieiro entered the United States as a lawful permanent resident (“LPR”). After living in the country for many years, she pled guilty to a controlled substance offense in New Hampshire Superior Court on January 11, 1991. The next year, on April 16, 1992, Immigration and Naturalization Services (“INS”) initiateddeportation proceedings against her. ¹ Although the record of the initial phases of these proceedings is less than lucid, it seems that Bolieiro appeared before the IJ and expressed her intent to seek discretionary relief under former Section 212(c) of the Immigration and Nationality Act (“INA”). See8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, Title III, § 304(b), 110 Stat. 3009, 3009–597. Bolieiro was informed that she should file her application for relief by August 10, 1992, and the IJ continued her case until December 22, 1992.

Bolieiro never filed the application. On September 30, 1992, the IJ found her deportable based on the record of her controlled substance conviction, and also deemed her request for 212(c) relief abandoned because of her failure to file her application by the prescribed deadline. Mailed to her home address, the order of deportation was later returned to sender because Bolieiro had moved without leaving a forwarding address.

Despite the deportation order, Bolieiro remained in the United States. She asserts that she became a confidential informant for Immigration and Customs Enforcement (“ICE”) in 1995, and was placed under an order of supervision. She also claims that she married a U.S. citizen in 1997 who was abusive towards her. (She reports that she is now divorced from this person.) On January 24, 1999, she was arrested for domestic assault. This case brought her to the attention of immigration authorities once again and removal proceedings were initiated against her.

On February 12, 1999, Bolieiro filed a motion to reopen before the IJ, with the assistance of counsel. The motion was denied without prejudice because of its failure to conform with substantive and evidentiary requirements, and the IJ directed Bolieiro to refile “a proper motion, accompanied by the appropriate fee and supported by an affidavit.”

On March 10, 1999, Bolieiro submitted another motion. The motion raised a variety of due process and ineffective assistance of counsel arguments. The motion also contended that she was eligible for various forms of relief, including her abandoned application for 212(c) relief. The IJ denied the motion on several grounds, including, inter alia, that the motion was untimely; that she had failed to demonstrate prima facie eligibility for 212(c) relief; and that she had failed to comply with the procedural requirements for raising a claim of ineffective assistance of counsel. After the IJ denied her motion, Bolieiro was deported from the United States on June 3, 1999.

Sometime after her removal, Bolieiro reentered the country without authorization. After ICE received a tip from a confidential source, federal agents arrested her on May 14, 2011. On June 8, 2011, she was indicted by a federal grand jury for unlawful reentry in violation of 8 U.S.C. § 1326. She pled not guilty to this charge, and subsequently moved to dismiss the indictment. On February 19, 2013, the district court granted the motion and dismissed all charges against her. See United States v. Bolieiro, 923 F.Supp.2d 319 (D.Mass.2013).²

B. Recent Proceedings Before the Agency

With the aid of new counsel, Bolieiro moved to reopen her proceedings before the IJ on December 28, 2011. This motion raised a number of arguments, including that: the conviction that was the basis of her removal had been vacated on constitutional grounds; her former counsel had provided ineffective assistance; and her deportation order was issued in violation of due process. The motion sought to reopen her proceedings pursuant to the motion to reopen statute. In the alternative, Bolieiro appealed to the agency's sua sponte authority to reopen proceedings. In a supplemental filing, she further asserted that she was eligible for relief under the Violence Against Women Act (“VAWA”) because she was a victim of domestic abuse. The filing noted that she had filed a self-petition with Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security, as a precursor to obtaining relief under VAWA. See Part II.B, infra.

On January 31, 2012, the IJ denied Bolieiro's motion, citing the post-departure bar and the BIA's opinion in Matter of Armendarez–Mendez, 24 I. & N. Dec. 646 (BIA 2008). See also8 C.F.R. §§ 1003.2(d), 1003.23(b)(1). Based on those authorities, the IJ concluded that he lacked jurisdiction to consider the motion. The IJ further rejected Bolieiro's due process arguments. Petitioner filed a motion to reconsider with the IJ on February 15, 2012, which was denied in a summary order.

Bolieiro appealed both the denials of her motion to reopen and her motion to reconsider to the BIA. During this time, USCIS approved her VAWA self-petition, thereby fulfilling a prerequisite for Bolieiro to obtain relief under VAWA. On May 29, 2012, the BIA dismissed the appeals. The BIA agreed with the IJ that Bolieiro's motion must be denied for lack of jurisdiction, citing our prior opinion in Pena–Muriel v. Gonzales, 489 F.3d 438 (1st Cir.2007), and the post-departure regulation. The BIA did not expressly distinguish between the general provisions of the motion to reopen statute, and the “special rule” governing motions to reopen filed by individuals seeking relief under VAWA, despite the fact that those provisions impose different requirements. The BIA also concluded that due process did not require the reopening of petitioner's proceedings in order to address the vacatur of her criminal conviction, because the denial of her motion would not result in a “gross miscarriage of justice.” See Matter of C-, 8 I. & N. Dec. 611, 615 (BIA 1960).

After the BIA dismissed her appeal, Bolieiro timely petitioned for our review.

II.

Our review of the agency's denial of a motion to reconsider or reopen is for abuse of discretion. Martinez–Lopez v. Holder, 704 F.3d 169, 171 (1st Cir.2013) (reconsideration); Aponte v. Holder, 683 F.3d 6, 10 (1st Cir.2012) (reopening). A denial of a motion to reopen is an abuse of discretion if “ ‘the [agency] committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.’ ” Bead v. Holder, 703 F.3d 591, 593 (1st Cir.2013) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)). A denial of a motion to reconsider, for its part, is an abuse of discretion “only when the ‘denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’ ” Martinez–Lopez v. Holder, 704 F.3d 169, 172 (1st Cir.2013) (quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir.2003)).

We review questions of law de novo, “with deference given ‘to the BIA's reasonable interpretations of statutes and regulations falling within its purview.’ ” Aponte, 683 F.3d at 10 (quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir.2011)). The scope of our review encompasses “the BIA's decision as well as any portions of the IJ's opinion adopted by the BIA.” Peña–Beltre v. Holder...