Pruidze v. Holder

• Decision Date: 03 February 2011
• Docket Number: No. 09–3836.,09–3836.
• Citation: 632 F.3d 234
• Parties: Vakhtang PRUIDZE, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

632 F.3d 234

Vakhtang PRUIDZE, Petitioner,

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

No. 09–3836.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 18, 2010.Decided and Filed: Feb. 3, 2011.

ARGUED: Herman S. Dhade, Dhade & Associates, Farmington Hills, Michigan, for Petitioner. Jessica Segall, United States Department of Justice, Washington, D.C., for Respondent. Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for Amici Curiae. ON BRIEF: Marshal E. Hyman, Russell Reid Abrutyn, Marshal E. Hyman & Associates, PC, Troy, Michigan, for Petitioner. Anthony J. Messuri, United States Department of Justice, Washington, D.C., for Respondent. Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, Beth Werlin, American Immigration Council, Washington, D.C., for Amici Curiae.Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

The Board of Immigration Appeals interprets a regulation promulgated by the Attorney General to provide that the Board lacks jurisdiction to review a motion to reopen once an alien leaves the United States, whether voluntarily or involuntarily. Yet the statute that empowers the Board to consider motions to reopen says nothing about jurisdictional limitations of any kind, let alone this kind. Because this regulatory interpretation has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress, the Board's order disclaiming power to consider the motion to reopen filed by Vakhtang Pruidze must be vacated.

I.

In July 2004, Pruidze, then a green-card holder, returned to the United States and applied for admission as a lawful permanent resident alien. The Department of Homeland Security denied his application for admission, explaining that Pruidze's state conviction for a controlled-substance crime made him inadmissible. After a merits hearing, an immigration judge found Pruidze removable and denied his application for withholding of removal. The Board affirmed the immigration judge's decision without opinion, and this court denied Pruidze's petition for review.

On April 6, 2009, the Department issued a warrant for Pruidze's removal and removed him on April 29. Six days later, Pruidze moved the state court to reopen his criminal proceedings because he had entered his guilty plea without counsel. On May 12, 2009, the state court set aside Pruidze's conviction and redocketed the case.

On May 29, 2009, Pruidze moved the Board to reopen his removal proceedings based on the state court's decision to set aside the conviction. The Board denied his motion, reasoning that, because Pruidze was no longer in the United States, it did not have “jurisdiction” to hear Pruidze's motion. The Board relied on Matter of Armendarez–Mendez, 24 I. & N. Dec. 646 (B.I.A.2008), which held that the “departure bar,” 8 C.F.R. § 1003.2(d), divested the Board of “jurisdiction” to entertain motions to reopen filed by aliens who are abroad. The departure bar says that “[a] motion to reopen ... shall not be made by ... a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.” Id.

II.

Pruidze's petition for review raises one question: Does the Board of Immigration Appeals lack jurisdiction to consider an alien's motion to reopen once the alien is no longer in the United States? The answer is no.

A.

Some background is in order. In 1940, Congress put the Attorney General in charge of immigration matters, giving the office the authority “to make and prescribe, and from time to time to change and amend, such rules and regulations not in conflict with this Act as he may deem necessary and proper in aid of the administration and enforcement of this title.” Pub.L. No. 76–670, 54 Stat. 675, 675, § 37(a) (1940). That same year, the Attorney General established the Board of Immigration Appeals. Regulations Governing Departmental Organization and Authority, 5 Fed.Reg. 3502, 3503 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.2). By regulation, the Board may entertain immigration-related motions on behalf of the Attorney General subject to limitations that the Attorney General places on that authority. Id. at 3504 (codified at 8 C.F.R. § 90.9 (1941)). In 1952, the Attorney General promulgated 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. 11469, 11475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2 (1953)). Then, not unlike today, the regulation read:

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

Id. Early on, the Board construed the departure bar as a limitation on the agency's “jurisdiction.” Matter of G–Y–B, 6 I. & N. Dec. 159, 159–60 (B.I.A.1954). The substance of the departure bar has not changed, although the Attorney General has redesignated it several times. See 27 Fed.Reg. 96, 96–97 (Jan. 5, 1962) (codified at 8 C.F.R. § 3.2 (1962)); 61 Fed.Reg. 18900, 18905 (Apr. 29, 1996) (codified at 8 C.F.R. § 3.2(d) (1997)); 68 Fed.Reg. 9824, 9830 (Feb. 28, 2003) (codified at 8 C.F.R. § 1003.2(d)).

While continuity has marked the regulation, change has marked the statutory backdrop to it. In 1961, Congress created a statutory counterpart to the Board's departure bar for judicial review of immigration decisions, establishing that federal courts could not review deportation and exclusion orders if the aliens left the country after the agency issued the contested orders. Act of Sept. 26, 1961, Pub.L. No. 87–301, § 5(a), 75 Stat. 650, 651–53 (1961) (codified at 8 U.S.C. § 1105a(c) (1962)) (“An order of deportation or of exclusion shall not be reviewed by any court if the alien ... has departed from the United States....”).

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, overhauling immigration law in many respects. Pub.L. No. 104–208, div. C, 110 Stat. 3009, 3009–546 (Sept. 30, 1996). Of import here, Congress

• codified the right to file a motion to reopen, IIRIRA § 304(a)(3) (codified at 8 U.S.C. § 1229a(c)(6) (1997)) (recodified as § 1229a(c)(7) in 2005 without substantive changes, see REAL ID Act of 2005, Pub.L. No. 109–13, div. B, § 101(d), 119 Stat. 231, 304 (May 11, 2005));

• repealed the statutory departure bar to judicial review, IIRIRA § 306(b); and

• adopted a 90–day period for the government to deport a person ordered removed, IIRIRA § 305(a)(3) (codified at 8 U.S.C. § 1231(a)(1)), and a 60–or 120–day limit for voluntary departures, IIRIRA § 304(a)(3) (codified at 8 U.S.C. § 1229c(a)(2)(A), (b)(2)).

In implementing the Act, the Attorney General promulgated several additional regulations. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10312 (Mar. 6, 1997). Among other regulatory considerations, the Attorney General, after a notice and comment period, concluded that the Act did not repeal the departure bar and opted to maintain the bar on motions to reopen and motions for reconsideration. Id. at 10321, 10331.

In 2000, Congress made additional revisions to the statute governing motions to reopen. See Violence Against Women Act of 2000, Pub.L. No. 106–386, div. B, § 1506(c), 114 Stat. 1464, 1528 (codified at 8 U.S.C. § 1229a(c)(6)(C)(iv) (2000)). In an effort to aid victims of domestic violence, Congress exempted some alien victims from the deadlines on motions to reopen. 8 U.S.C. § 1229a(c)(6)(C)(iv) (2000). In 2005, Congress added a qualifying requirement to the exemption: the alien victim must be “physically present in the United States at the time of filing the motion.” See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109–162, § 825(a)(2)(F), 119 Stat. 2960, 3063–64 (Jan. 5, 2006) (codified at 8 U.S.C. § 1229a(c)(7)(C)(iv)(IV)).

In 2008, the Board addressed these revisions in Matter of Armendarez–Mendez. It concluded that none of the statutory revisions repealed 8 C.F.R. § 1003.2(d), “that the departure bar rule remains in full effect” and that it continues to impose a “jurisdictional” bar on the Board's authority. 24 I. & N. Dec. 646, 660.

B.

In reviewing an administrative action that turns on the meaning of a federal statute that Congress has empowered the agency to interpret, we generally give the agency wide berth in construing the provision. Unless the statute's terms “directly address[ ] the precise question at issue,” we defer to the agency's “reasonable” interpretation of the provision. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). There is some question whether Chevron applies to disputes about the scope of an agency's jurisdiction. Although the Supreme Court has invoked Chevron in resolving some disputes over an agency's jurisdiction, see, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), it has not mentioned Chevron in seemingly similar disputes, see Union Pac. R.R. v. Bhd. of Locomotive Eng'rs, ––– U.S. ––––, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009); Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988), and, so far as we can tell, has yet to resolve the debate that Justice Scalia and Justice Brennan first waged over the point in 1988. See Miss. Power & Light, 487 U.S. at...