Garcia–Carias v. Holder

Decision Date27 September 2012
Docket NumberNo. 11–60550.,11–60550.
Citation697 F.3d 257
PartiesWilmer Alberto GARCIA–CARIAS, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit


Held Invalid

8 C.F.R. §§ 1003.2(d), 1003.23(b)(1)Ronaldo Rauseo–Ricupero (argued), Maia Harris, Danielle Mairin McLaughlin, Nixon Peabody, L.L.P., Boston, MA, Jessica Ellen Chicco (argued), Post–Deportation Human Rights Project, Boston College, Newton, MA, for Petitioner.

Gregory Darrell Mack, Sr. Lit. Counsel (argued), Gerald Mark Alexander, Trial Atty., Tangerlia Cox, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Wilmer Alberto Garcia–Carias was removed from the United States in 2005. In December 2010, Garcia filed a motion to reopen with the Immigration Court. The following month, the Immigration Judge denied Garcia's motion, finding that, under the Attorney General's departure regulation, he lacked “jurisdiction to grant [Garcia's motion] as [Garcia] ha[d] been removed from the United States.” On appeal, the Board of Immigration Appeals affirmed the Immigration Judge's decision and, in doing so, agreed with his analysis. Garcia subsequently filed a petition for review with this court. For the following reasons, we grant his petition.


Wilmer Alberto Garcia–Carias was born in Honduras and was admitted to the United States as a lawful permanent resident on May 28, 1993. After being admitted to the United States, Garcia and his family resided in Louisiana. In November 2002, Garcia was stopped for a traffic violation, arrested, and subsequently charged with possession of ecstasy. During April of the following year, Garcia pleaded guilty to violating La.Rev.Stat. Ann. § 40:966(C), which provides that it is unlawful for a person to “knowingly and intentionally possess a controlled dangerous substance[.] Garcia was sentenced to “imprisonment at hard labor for a term of two years,” but received a suspended sentence, was placed on probation for two years, and was ordered to pay fees and costs. Under Louisiana law, Garcia's offense is considered a felony because he was sentenced to a term of imprisonment of two years at hard labor. SeeLa.Code.Crim. Proc. art. 933(3) (“ ‘Felony’ means an offense that may be punished by death or by imprisonment at hard labor.”).

On July 25, 2005, Garcia received a pardon for this conviction under Louisiana's first offender pardon statute.


Three months before receiving his pardon, Garcia was served with a Notice to Appear charging him with being removable for having been convicted of possession of a controlled substance and an aggravated felony. During a May 31, 2005 hearing, Garcia admitted the allegations in the NTA. The Immigration Judge sustained the charges of removability and issued an order of removal against Garcia.

Garcia appealed the Immigration Judge's decision to the Board a month after the hearing. Two weeks after filing his appeal, Garcia submitted a motion to withdraw his appeal. On July 27, 2005, the Board acknowledged Garcia's withdrawal of his appeal and returned his case to the Immigration Judge without further action. Garcia was removed from the United States in November 2005, and currently resides in Honduras.


About a year after Garcia was removed, the Supreme Court decided Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). In Lopez, the petitioner, a legal permanent resident, was convicted in state court of aiding and abetting another person's possession of cocaine. 549 U.S. at 51, 127 S.Ct. 625. After his release, removal proceedings were initiated against Lopez on grounds similar to those in Garcia's case: a conviction involving a controlled substance that was also considered an aggravated felony. Id. Lopez's challenge to the conclusion that his state conviction was an aggravated felony for immigration purposes was rejected by the Board and the Eighth Circuit. Id. at 52, 127 S.Ct. 625.

In reversing, the Supreme Court recognized that the Immigration and Nationality Act made Lopez “guilty of an aggravated felony if he has been convicted of ‘illicit trafficking in a controlled substance ... including,’ but not limited to, ‘a drug trafficking crime[.] Id. at 52–53, 127 S.Ct. 625. Importantly, the Court stated that a “drug trafficking crime” is defined by statute as any felony punishable under the federal Controlled Substances Act. Id. at 53, 127 S.Ct. 625. In making these observations, the Court also noted that mere possession is not a felony under the Controlled Substances Act. Id. It then proceeded to hold that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act only if it proscribes conduct punishable as a felony under that federal law.” Id. at 60, 127 S.Ct. 625. Based on this holding, the Court reversed the Eighth Circuit's judgment. Id.

Close to four years after Lopez was decided, one of Garcia's relatives visited him from the United States. This relative encouraged Garcia to research his immigration case with the hope that Garcia would discover a way to legally return to the United States. Garcia followed this advice and came across an article about Lopez on the internet in October 2010. While he did not understand the article in its entirety, he did draw parallels between his case and the facts in Lopez. He then obtained pro bono counsel to help him with his case.


On December 27, 2010, Garcia filed a motion to reopen his proceedings with the Immigration Judge. In his motion, Garcia argued that, in light of Lopez, his criminal conviction could not be considered an aggravated felony. Because his conviction could not be considered an aggravated felony, Garcia maintained that he had established his eligibility for cancellation of removal. Additionally, Garcia contended that, despite the several years that had passed since he was removed, his motion was timely because he filed it “less than ninety days and within a reasonable time of when he first became aware of the possibility of seeking to reopen his immigration proceedings pursuant to [Lopez].” In the alternative, he asserted that even if the motion was time barred under the applicable statute, equitable tolling rendered the motion timely. Finally, Garcia asked the Immigration Judge to reopen his case sua sponte.

The Immigration Judge denied Garcia's motion on January 11, 2011. As the basis for the denial, the Immigration Judge stated that he lacked “jurisdiction [to] grant it as [Garcia] ha[d] been removed from the United States.” The Immigration Judge relied on the Attorney General's departure regulation, 8 C.F.R. § 1003.23(b)(1), in arriving at his conclusion. Garcia appealed the denial of his motion to the Board.

The Board dismissed Garcia's appeal in July 2011. In its written decision, the Board agreed with the Immigration Judge's application of the departure regulation:

The Immigration Judge correctly determined that he lacked jurisdiction to consider the respondent's motion because the respondent was removed from the United States prior to the filing of the motion to reopen with the Immigration Judge. The regulations provide that a motion to reopen or reconsider “shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.” 8 C.F.R. § 1003.23(b).

The Board further stated that Garcia's arguments were foreclosed by Ovalles v. Holder, 577 F.3d 288 (5th Cir.2009) and Matter of Armendarez, 24 I. & N. Dec. 646 (BIA 2008). Garcia now appeals the Board's decision.


On appeal, Garcia has raised multiple arguments challenging the Board's decision. One of the contentions raised by Garcia asks us to grant his petition on the ground that the departure regulation is invalid under Chevron. Because it is dispositive, we will focus our attention on this argument.1 Before delving into our Chevron analysis, we will provide some background regarding the departure regulation.


Since the Board was established in 1940, it has possessed the regulatory power to entertain motions, including motions to reopen, subject to the limitations prescribed by the Attorney General. In 1952, the Attorney General limited that power by promulgating the “departure bar,” a regulation barring the Board from reviewing a motion to reopen filed by a person who has left the United States. 17 Fed.Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2 (1953)). The substance of the departure regulation remains substantially the same today. See8 C.F.R. §§ 1003.2(d), 1003.23(b)(1).2

In 1961, Congress created a statutory counterpart to the Board's departure regulation. This statute prohibited federal courts from reviewing deportation and exclusion orders if the alien “has departed from the United States after the issuance of the order.” Act of Dept. 26, 1961, Pub.L. No. 87–301, § 5(a), 75 Stat. 650, 651–53 (1961). This bar to judicial review was repealed in 1996 with the passage of the Illegal Immigration Reform and Immigration Responsibility Act, Pub.L. No. 104–208, 110 Stat. 3009. Along with repealing this bar, the Act also established a statutory right to file a motion to reopen. In doing so, it “transform[ed] the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien.” Dada v. Mukasey, 554 U.S. 1, 15, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008).

The Act provided that an alien has a general right to file one motion to reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A); Dada, 554 U.S. at 15, 128 S.Ct. 2307. It also detailed the required evidentiary content of a motion to reopen, the deadline for filing the motion, and exceptions to both the numerical limit of one motion and the time period for filing the motion. 8 U.S.C. § 1229a(c)(7)(A)-(C). Notably, despite...

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