Marin-rodriguez v. Holder, No. 09-3105.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtEASTERBROOK
PartiesJose Concepcion MARIN-RODRIGUEZ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Docket NumberNo. 09-3105.
Decision Date14 July 2010

612 F.3d 591

Jose Concepcion MARIN-RODRIGUEZ, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-3105.

United States Court of Appeals,
Seventh Circuit.

Argued April 16, 2010.
Decided July 14, 2010.


612 F.3d 591
Matthew Lorn Hoppock, Attorney (argued), McCrummen Immigration Law Group, North Kansas City, MO, for Petitioner.

Allen W. Hausman, Attorney (argued), OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, FLAUM, Circuit Judge, and HIBBLER, District Judge.

EASTERBROOK, Chief Judge.

The Board of Immigration Appeals believes that it lacks jurisdiction to reconsider or reopen any of its decisions after the alien has left the United States. We must decide whether the Board's understanding is correct.

Jose Concepcion Marin-Rodriguez entered the United States from Mexico by stealth in 1988 and remained undetected

612 F.3d 592
until 2005, when he was convicted of using fraudulent documents to obtain employment under the pretense of citizenship. 18 U.S.C. § 1546(a). He sought cancellation of removal, contending that a return to Mexico would cause hardship for himself and his family. To be eligible for that relief, an alien usually must submit biometric information that will enable the agency to determine that he is who he claims to be, and to find out whether he has any disqualifying criminal convictions. 8 C.F.R. § 1003.47(d). At a hearing in mid-2006, Marin-Rodriguez was told to submit fingerprints and warned that, if he did not, his application would be denied. When the next hearing occurred 15 months later, Marin-Rodriguez still had not complied. The immigration judge deemed his application for cancellation of removal to have been abandoned, see 8 C.F.R. § 1003.47(c), and ordered him removed because he is a citizen of Mexico without a visa or any other claim of right to be in the United States.

Marin-Rodriguez appealed to the Board of Immigration Appeals. While that appeal was pending, he submitted a set of fingerprints and asked the Board to remand to the IJ for reconsideration. But in September 2008 the Board deemed his motion untimely and dismissed his appeal. Marin-Rodriguez protested the next month, via a motion for reconsideration, that a motion for remand filed while an appeal is pending cannot be untimely. (The submission of fingerprints was late, but what the Board said is that the motion was untimely.) On April 29, 2009, the Board granted this motion and remanded to the IJ, stating that its decision of September 2008 had been mistaken in deeming untimely the motion for remand.

Before the IJ could act, however, the Department of Homeland Security asked the Board to reconsider. It observed that Marin-Rodriguez had been removed to Mexico on April 10, 2009, after both the Bureau of Immigration and Customs Enforcement and the Board had denied his requests for a stay of removal. The Board granted the Department's motion and withdrew the remand to the IJ. This order states: “As the respondent has been removed, the Board was without jurisdiction to consider the respondent's motion to reconsider. See 8 C.F.R. § 1003.2(d).” This is the order that Marin-Rodriguez asks us to set aside.

The Board's belief that it lacks jurisdiction to grant relief to an alien who is no longer in the United States has a pedigree dating to 1954. See Matter of G- y B-, 6 I. & N. Dec. 159 (BIA 1954) (discussing the 1952 version of the regulation), reaffirmed in Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). One court of appeals has held that the Board's refusal to adjudicate these requests conflicts with 8 U.S.C. § 1229a(c)(7)(A). See William v. Gonzales, 499 F.3d 329 (4th Cir.2007). Other circuits have held that the Board is entitled to treat an alien's departure as an event that deprives it of jurisdiction. See Toora v. Holder, 603 F.3d 282, 285 (5th Cir.2010); Mendiola v. Holder, 585 F.3d 1303 (10th Cir.2009); Pena-Muriel v. Gonzales, 489 F.3d 438, 441-43 (1st Cir.2007); Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir.2006); Singh v. Gonzales, 468 F.3d 135, 140 (2d Cir.2006). We were asked to consider this subject in Munoz De Real v. Holder, 595 F.3d 747 (7th Cir.2010), but bypassed it, because the alien's request was untimely. We cannot duck here, for the Board itself has concluded that Marin-Rodriguez satisfied its timing requirements.

The fourth circuit's conclusion rests on § 1229a(c)(7)(A), which says that “[a]n alien may file one motion to reopen proceedings under this section”. We don't

612 F.3d 593
agree with the fourth circuit's understanding of this statute, because the statement “a litigant may file motion X” differs from the statement “the opportunity to file motion X cannot be limited.” Consider a simple rule: “A motion to reopen must be filed within 90 days of the final decision.” That does not detract from the entitlement to file a motion, any more than the time limit for appeal undercuts the right to file one appeal. Cf Lantz v. CIR, 607 F.3d 479 (7th Cir.2010) (the Treasury Department is entitled to set a two-year deadline for seeking innocent-spouse relief in a tax proceeding, even though the statute lacks an outer limit). People have a right to trial by jury, but not if they settle their dispute; criminal defendants have a right to appeal, but they may surrender that right as part of a plea bargain. United States v. Wenger, 58 F.3d 280 (7th Cir.1995). And although an alien is entitled to seek permission to depart voluntarily, someone who applies for judicial review of a removal order gives up that opportunity. Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008); 8 C.F.R. § 1240.26(b)(3)(iii), adopted and explained at 73 Fed.Reg. 76927 (Dec. 18, 2008). If the Supreme Court...

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34 practice notes
  • Garcia–Carias v. Holder, No. 11–60550.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 27, 2012
    ...distinction between jurisdictional and other legal rules. See Pruidze v. Holder, 632 F.3d 234 (6th Cir.2011); Marin–Rodriguez v. Holder, 612 F.3d 591 (7th Cir.2010). 1. The William case dealt with 8 C.F.R. § 1003.2(d), which applies to motions to reopen before the Board of Immigration Appea......
  • State v. Jerzy G., SC 19641
    • United States
    • Supreme Court of Connecticut
    • July 11, 2017
    ...Holder, 637 F.3d 85, 100 (2d Cir. 2011) (same); Pruidze v. Holder, 632 F.3d 234, 237–38 (6th Cir. 2011) (same); Marin–Rodriguez v. Holder, 612 F.3d 591, 593–94 (7th Cir. 2010) (same); William v. Gonzales, 499 F.3d 329, 333–34 (4th Cir. 2007) (same); see also Judulang v. Holder, 565 U.S. 42,......
  • Espinal v. Attorney Gen. of The United States, No. 10–1473.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 3, 2011
    ...(2009). See Pruidze, 632 F.3d at 237–40 (invalidating the regulation based on both Chevron and Union Pacific ); Marin–Rodriguez v. Holder, 612 F.3d 591, 594–95 (7th Cir.2010) (invalidating the regulation solely on Union Pacific ). In Union Pacific, the Supreme Court held that an administrat......
  • Toor v. Lynch, No. 10–73212.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 17, 2015
    ...jurisdiction. See Luna v. Holder, 637 F.3d 85 (2d Cir.2011) ; Pruidze v. Holder, 632 F.3d 234 (6th Cir.2011) ; Marin–Rodriguez v. Holder, 612 F.3d 591 (7th Cir.2010). Without necessarily disagreeing with those courts, we choose to resolve this case under Chevron because that is the approach......
  • Request a trial to view additional results
34 cases
  • Garcia–Carias v. Holder, No. 11–60550.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 27, 2012
    ...distinction between jurisdictional and other legal rules. See Pruidze v. Holder, 632 F.3d 234 (6th Cir.2011); Marin–Rodriguez v. Holder, 612 F.3d 591 (7th Cir.2010). 1. The William case dealt with 8 C.F.R. § 1003.2(d), which applies to motions to reopen before the Board of Immigration Appea......
  • State v. Jerzy G., SC 19641
    • United States
    • Supreme Court of Connecticut
    • July 11, 2017
    ...Holder, 637 F.3d 85, 100 (2d Cir. 2011) (same); Pruidze v. Holder, 632 F.3d 234, 237–38 (6th Cir. 2011) (same); Marin–Rodriguez v. Holder, 612 F.3d 591, 593–94 (7th Cir. 2010) (same); William v. Gonzales, 499 F.3d 329, 333–34 (4th Cir. 2007) (same); see also Judulang v. Holder, 565 U.S. 42,......
  • Espinal v. Attorney Gen. of The United States, No. 10–1473.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 3, 2011
    ...(2009). See Pruidze, 632 F.3d at 237–40 (invalidating the regulation based on both Chevron and Union Pacific ); Marin–Rodriguez v. Holder, 612 F.3d 591, 594–95 (7th Cir.2010) (invalidating the regulation solely on Union Pacific ). In Union Pacific, the Supreme Court held that an administrat......
  • Toor v. Lynch, No. 10–73212.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 17, 2015
    ...jurisdiction. See Luna v. Holder, 637 F.3d 85 (2d Cir.2011) ; Pruidze v. Holder, 632 F.3d 234 (6th Cir.2011) ; Marin–Rodriguez v. Holder, 612 F.3d 591 (7th Cir.2010). Without necessarily disagreeing with those courts, we choose to resolve this case under Chevron because that is the approach......
  • Request a trial to view additional results

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