Matter of Armendarez-Mendez
| Decision Date | 06 October 2008 |
| Docket Number | Interim Decision No. 3626.,File A014 720 015. |
| Citation | 24 I&N Dec. 646 |
| Parties | Matter of Andres ARMENDAREZ-Mendez, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
On December 11, 2000, the respondent was removed from the United States pursuant to a final administrative order of removal issued by this Board. Approximately 67 months later, he filed a motion requesting that we reopen his proceedings sua sponte. In a decision dated September 26, 2006, we denied the motion pursuant to 8 C.F.R. § 1003.2(d) (2006), which states in relevant part that "[a] motion to reopen . . . shall not be made by or on behalf of a person who is the subject of . . . removal proceedings subsequent to his or her departure from the United States." The respondent thereafter filed a petition for review with the United States Court of Appeals for the Fifth Circuit, which has remanded the matter to us "to consider the questions raised by the Ninth Circuit's holding in [Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)]." For the reasons that follow, we reiterate that we lack jurisdiction over the respondent's motion, which will therefore be denied.
The respondent, a native and citizen of Mexico, was ordered removed in 2000 because of his 1995 conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), an "aggravated felony" within the meaning of section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000). During the respondent's initial proceedings before the Immigration Judge, he requested a waiver under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), but the Immigration Judge pretermitted that request pursuant to the Attorney General's then-controlling decision in Matter of Soriano, 21 I&N Dec. 516, 533-40 (BIA 1996; A.G. 1997). The respondent filed a timely appeal to this Board in which he reiterated his claim to eligibility for section 212(c) relief, but we dismissed the appeal in a final order dated November 13, 2000. On December 11, 2000, the Department of Homeland Security ("DHS")1 physically removed the respondent to Mexico pursuant to our order.
In July 2006, the respondent filed the motion at issue here, in which he requested that we reopen his removal proceedings sua sponte to permit him to file an application for section 212(c) relief pursuant to INS v. St. Cyr, 533 U.S. 289 (2001). Motions seeking section 212(c) relief based on that decision are subject to a regulatory filing deadline of April 26, 2005, see 8 C.F.R. § 1003.44(h) (2006), and cannot be filed at all by aliens who are outside the United States or who have illegally reentered the country after removal. 8 C.F.R. § 1003.44(k). The respondent's motion violated those regulatory requirements, so he sought sua sponte reopening instead. We denied the motion for lack of jurisdiction in our September 26, 2006, decision, which we are now called upon to revisit.
The issue before us on remand is whether we have jurisdiction to entertain the respondent's motion requesting sua sponte reopening of his removal proceedings, where that motion was filed after the respondent's departure from the United States pursuant to a final administrative order of removal.
Since this Board was established in 1940 we have had the regulatory power to entertain motions, subject to such limitations as the Attorney General may prescribe. See Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3504 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.9). The particular limitation at issue here, the so-called "departure bar," was first imposed in 1952, by means of a regulation that stated as follows, in pertinent part:
A motion to reopen or a motion to reconsider [before the Board of Immigration Appeals] shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure of such person from the United States occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.
Immigration and Nationality Regulations, 17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2). Despite the passage of more than 55 years, the language of the current regulation bears a strong resemblance to that of its earliest predecessor:
A motion to reopen or a motion to reconsider [before the Board of Immigration Appeals] 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) (2008). Essentially identical language appears in the regulation governing the filing of motions in Immigration Court. 8 C.F.R. § 1003.23(b)(1) (2008).
As early as 1954, we construed the departure bar rule as imposing a limitation on our jurisdiction to entertain motions filed by aliens who had departed the United States. Matter of G- y B-, 6 I&N Dec. 159, 159-60 (BIA 1954). We have reiterated that construction of the rule in an unbroken string of precedents extending over 50 years, consistently holding that reopening is unavailable to any alien who departs the United States after being ordered removed. Matter of G-N-C-, 22 I&N Dec. 281, 288 (BIA 1998); Matter of Okoh, 20 I&N Dec. 864, 864-65 (BIA 1994); Matter of Estrada, 17 I&N Dec. 187, 188 (BIA 1979), rev'd on other grounds, Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Matter of Palma, 14 I&N Dec. 486, 487 (BIA 1973); accord Matter of Yih-HsiungWang, 17 I&N Dec. 565 (BIA 1980). Indeed, this jurisdictional principle is so well established that the respondent expressly acknowledged its applicability in his motion, observing that "the BIA and the IJs do not have jurisdiction to consider a motion to reopen brought by a respondent who is outside of the United States, or reenter [sic] illegally into the United States," but asserting that "they retain the jurisdiction to reopen these cases on their own motion." But see Navarro-Miranda v Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003) ().
In 1961, nearly a decade after the departure bar rule went into effect, Congress imposed a similar statutory restriction prohibiting the United States courts of appeals from reviewing deportation orders if the alien "has departed from the United States after issuance of the order." See Act of September 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651 (). While that preclusion was in effect, the Federal circuit courts had no occasion to review Board decisions denying motions under the departure bar rule. In 1996, however, Congress repealed former section 106 of the Act and replaced it with a new set of rules governing judicial review of removal orders. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 306, 110 Stat. 3009-546, 3009-607 (effective Sept. 30, 1996) ("IIRIRA"). Under those rules, an alien's departure from the United States no longer forecloses judicial review. See, e.g., Dada v. Mukasey, 128 S. Ct. 2307, 2320 (2008); Lopez v. Gonzales, 127 S. Ct. 625, 629 n.2 (2006).2
After enactment of the IIRIRA, several Federal circuit courts, including the Fifth Circuit, have interpreted the departure bar in a manner consistent with our traditional understanding of that rule. See Navarro-Miranda v. Ashcroft, supra; see also Shah v. Mukasey, 533 F.3d 25, 27 (1st Cir. 2008); Mansour v. Gonzales, 470 F.3d 1194, 1200 (6th Cir. 2006); Singh v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006). However, in Lin v. Gonzales, supra, and Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007), the Ninth Circuit espoused an interpretation of the departure bar rule that departs substantially from our own. Furthermore, shortly after the Fifth Circuit remanded this case to us, a divided panel of the Fourth Circuit invalidated 8 C.F.R. § 1003.2(d) outright, concluding that it is inconsistent with relevant portions of the Immigration and Nationality Act. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007). The Fifth Circuit remanded this matter to us with instructions to consider the issues raised in Lin v. Gonzales, supra. However, in order to ensure as comprehensive a treatment of the subject as possible, we will also address William v. Gonzales, supra, in this decision. We begin by discussing Lin v. Gonzales, however, because it is the decision that prompted the present remand.
In Lin v. Gonzales, supra, the Ninth Circuit reviewed a Board order dismissing Mr. Lin's appeal from an Immigration Judge's decision denying his motion to reopen under 8 C.F.R. § 1003.23(b)(1). That regulation, which is substantively identical to 8 C.F.R. § 1003.2(d) but...
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