Ovalles v. Holder

• Decision Date: 27 July 2009
• Docket Number: No. 07-60836.,07-60836.
• Parties: Ruben OVALLES, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

577 F.3d 288

Ruben OVALLES, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 07-60836.

United States Court of Appeals, Fifth Circuit.

July 27, 2009.

Deborah S. Griffin, Holland & Knight, Boston, MA, Rachel E. Rosenbloom, Post-Deportation Human Rights & Project Ctr. for Human Rights & Intern. Justice, Newton, MA, Christine Fuqua Gay (argued), Holland & Knight, LLP, Jacksonville, FL, for Petitioner.

Beth Werlin, Trina Ann Realmuto, Am. Imm. Law Found., Washington, DC, for Amicus Curiae.

Michael Christopher Heyse (argued), John S. Hogan, Thomas Ward Hussey, Director, U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement Field Office Dir., Attn: Carl Perry, New Orleans, LA, for Respondent.

Appeal from the United States Board of Immigration Appeals.

Before GARWOOD, OWEN and HAYNES, Circuit Judges.

PER CURIAM:

Ruben Ovalles (Ovalles), who filed an untimely motion to reconsider his removal order or to reopen his removal proceedings following his departure from the United States, petitions for review of an order of the Board of Immigration Appeals (BIA or Board) denying jurisdiction over his motion pursuant to 8 C.F.R. § 1003.2(d). Ovalles argues that the so-called "post-departure bar" in section 1003.2(d) is contrary to statute and therefore invalid, that the BIA unreasonably concluded that the post-departure bar trumped its sua sponte authority to reconsider decisions or reopen proceedings, that section 1003.2(d) was applied arbitrarily and capriciously in his case, and that he was deprived of his Fifth Amendment right to due process. For the following reasons, we DENY the petition for review.

I. FACTS AND PROCEEDINGS BELOW

Ovalles, a native and citizen of the Dominican Republic, immigrated to the United States in 1985 and eventually became a permanent legal resident. In 2003, Ovalles was convicted in Ohio of attempted possession of drugs under Ohio Revised Code Ann. §§ 2923.02, 2925.11 and sentenced to five years of probation. As a result, Ovalles was charged with removability pursuant to 8 U.S.C. §§ 1227(a)(2)(B)(i) (conviction of a controlled substance violation) and 1227(a)(2)(A)(iii) (conviction of an aggravated felony). The Immigration Judge (IJ) concluded that Ovalles was removable for a controlled substance violation pursuant to section 1227(a)(2)(B)(i), but, because he was never imprisoned, his conviction was not an aggravated felony under section 1227(a)(2)(A)(iii). As a result, the IJ determined that Ovalles was eligible for cancellation of removal under 8 U.S.C. § 1229b(a), which the IJ granted due to Ovalles's continuous work history and familial connections in the United States. The Department of Homeland Security appealed to the BIA. On March 8, 2004, the Board held that Ovalles's conviction was an aggravated felony, and therefore that Ovalles was ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3). Ovalles was removed to the Dominican Republic on April 14, 2004.

On December 5, 2006, the Supreme Court decided Lopez v. Gonzales, which held that a first-time conviction for simple possession of drugs that is neither an illicit trafficking offense nor a federal felony does not constitute an aggravated felony for immigration purposes. 549 U.S. 47, 127 S.Ct. 625, 631-32, 166 L.Ed.2d 462 (2006). Arguing that this decision undermined the legal basis for his removal, Ovalles filed a motion with the BIA on July 27, 2007 to reconsider its March 2004 decision sua sponte, or alternatively, to reopen his removal proceedings sua sponte. The BIA began by noting that Ovalles's motion, which it viewed as a motion to reopen sua sponte, was untimely. Ultimately, however, the BIA refused to consider the motion on the basis of 8 C.F.R. § 1003.2(d), which provides in relevant part: "A motion to reopen or a motion to reconsider 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." Ovalles timely filed this petition for review.¹

II. DISCUSSION

A. Standard of Review

We review the BIA's conclusions of law and constitutional issues arising therefrom de novo. See Garrido-Morato v. Gonzales, 485 F.3d 319, 322 (5th Cir. 2006). We grant the BIA's interpretation of its own regulations "`considerable legal leeway.'" Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir.2003) (quoting Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1269, 152 L.Ed.2d 330 (2002)). "However, `[w]hile an agency interpretation of a regulation is entitled to due deference, the interpretation must rationally flow from the language of the regulation.'" Id. (quoting Acadian Gas Pipeline Sys. v. FERC, 878 F.2d 865, 868 (5th Cir.1989)).

B. Validity of 8 C.F.R. § 1003.2(d)

Ovalles's primary contention on appeal is that the post-departure bar in 8 C.F.R. § 1003.2(d) is invalid, because it is contrary to the clear and unambiguous language of the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (1996), that "[t]he alien may file one motion to reconsider" and "[a]n alien may file one motion to reopen." See 8 U.S.C. § 1229a(c)(6)(A), (c)(7)(A). In support of this argument, Ovalles urges this court to follow the Fourth Circuit's decision in William v. Gonzales, which held that the post-departure bar in section 1003.2(d) was invalid because it conflicted with the clear and unambiguous language of section 1229a(c)(7)(A) of IIRIRA. See 499 F.3d 329, 331-34 (4th Cir.2007).

Motions to reconsider and motions to reopen began as judicial creations and were later incorporated into regulations. See Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307, 2315, 171 L.Ed.2d 178 (2008). The first version of the post-departure bar on filing such motions appeared in a regulation promulgated by the Attorney General in 1952, which provided in pertinent part as follows:

"A motion to reopen or a motion to reconsider [before the BIA] 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."

17 Fed.Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2); see In re Armendarez-Mendez, 24 I & N Dec. 646, 648 (BIA Oct. 6, 2008). Since that time, the BIA has consistently interpreted the post-departure bar as a limitation on its jurisdiction to entertain motions to reopen or reconsider filed by aliens who have departed the country. In re Armendarez-Mendez, 24 I & N Dec. at 648.

In 1961, Congress imposed a similar statutory restriction on the ability of Article III courts to hear appeals from deportation or exclusion orders filed by aliens who had already departed the country:

"An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order."

8 U.S.C. § 1105a(c) (repealed 1996); see In re Armendarez-Mendez, 24 I & N Dec. at 649. The law surrounding motions to reopen or reconsider changed again in 1996, when Congress amended the Immigration and Naturalization Act (INA) with the enactment of IIRIRA. See William, 499 F.3d at 330. IIRIRA repealed 8 U.S.C. § 1105a(c), replacing it with a new provision governing Article III review of deportation and exclusion orders that did not contain a post-departure bar. See 8 U.S.C. § 1252; see William, 499 F.3d at 330. Additionally, IIRIRA codified procedures for filing motions to reopen and motions to reconsider, incorporating several of the existing regulatory restrictions on filing those motions but, notably, excluding the post-departure bar. See 8 U.S.C § 1229a(c); see also William, 499 F.3d at 330.

Following the enactment of IIRIRA, the Attorney General passed a new set of regulations governing motions to reopen or reconsider that, despite the repeal of 8 U.S.C. § 1105a(c) and the lack of explicit authorization in 8 U.S.C. § 1229a(c), again imposed a post-departure bar nearly identical to those contained in previous regulations:

"A motion to reopen or a motion to reconsider [before the BIA] 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 a motion."

8 C.F.R. § 3.2(d); see 62 Fed.Reg. 10312, 10321, 10331 (Mar. 6, 1997). This regulation, which was later redesignated 8 C.F.R. § 1003.2(d), is challenged in the instant case. See 68 Fed.Reg. 9,924, 9,830 (Feb. 28, 2003).

In Pena-Muriel v. Gonzales, the First Circuit considered whether the repeal of the statutory post-departure bar applicable to the federal courts in 8 U.S.C. § 1105a(c) abrogated or otherwise signaled Congress's intent to eliminate the post-departure bar in 8 C.F.R. § 1003.23(b)(1), which applies to the immigration courts and mirrors section 1003.2(d) (which applies to the BIA).² 489 F.3d 438, 441 (1st Cir.2007). First, the court concluded that, because the regulatory post-departure bar existed prior to and independent of the statutory post-departure bar, the repeal of section 1105a(c) did not in itself "abrogate the Attorney General's authority to continue to enforce the limitations of 8 C.F.R. § 1003.23(b)(1)." Id. The court then went on to consider whether, in enacting IIRIRA, Congress nevertheless intended for the Attorney General...