Reyes-Vargas v. Barr

• Decision Date: 14 May 2020
• Docket Number: No. 17-9549,17-9549
• Citation: 958 F.3d 1295
• Parties: Juvenal REYES-VARGAS, a/k/a Juvenal Reyes, a/k/a Juvenal Vargas-Reyes, Petitioner, v. William P. BARR, United States Attorney General, Respondent. National Immigration Project of the National Lawyers Guild, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

958 F.3d 1295

Juvenal REYES-VARGAS, a/k/a Juvenal Reyes, a/k/a Juvenal Vargas-Reyes, Petitioner,

v. William P. BARR, United States Attorney General, Respondent.National Immigration Project of the National Lawyers Guild, Amicus Curiae.

No. 17-9549

United States Court of Appeals, Tenth Circuit.

FILED May 14, 2020

Aaron Tarin (Lory D. Rosenberg with him on the briefs), of Immigrant Defenders Law Group, PLLC, West Valley City, Utah, for Petitioner.

Jonathan K. Ross, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, and Chad A. Readler, Acting Assistant Attorney General, Civil Division; Margaret Kuehne Taylor, Senior Litigation Counsel, Office of Immigration Litigation, with him on the brief), United States Department of Justice, Washington D.C., for Respondent.

Elizabeth G. Simpson, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for amicus curiae on behalf of Petitioner.

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

In this appeal, we review a Board of Immigration Appeals (the "Board" or "BIA") ruling that an Immigration Judge (IJ) had no jurisdiction under 8 C.F.R. § 1003.23(b)(1) to move sua sponte to reopen Juvenal Reyes-Vargas’s removal proceedings. In particular, the Board ruled that this regulation removes the IJ’s jurisdiction to move sua sponte to reopen an alien’s removal proceedings after the alien has departed this country (the regulation’s "post-departure bar").

We review the Board’s interpretation of its regulation using the framework announced in Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019), which clarifies when and how courts defer to an agency interpreting its own regulations. Under that case, we can defer to the Board’s interpretation only if we conclude, after rigorously applying all our interpretative tools, that the regulation presents a genuine ambiguity and that the agency’s reading is reasonable and entitled to controlling weight.

Applying this framework here, we conclude that the regulation is not genuinely ambiguous on the issue in dispute—that is, whether the post-departure bar eliminates the IJ’s jurisdiction to move sua sponte to reopen removal proceedings. In fact, the regulation’s plain language conclusively answers the question. The post-departure bar applies to a party’s "motion to reopen," not to the IJ’s own sua sponte authority to reopen removal proceedings. So we do not defer.

Accordingly, we grant Reyes-Vargas’s petition for review, vacate the Board’s decision, and remand for further proceedings. On remand, the Board must consider Reyes-Vargas’s appeal from the IJ’s ruling declining to move sua sponte to reopen his removal proceedings. More specifically, the Board must review the IJ’s conclusory decision that Reyes-Vargas had not shown "exceptional circumstances" as required before an IJ can move sua sponte to reopen removal proceedings. As his showing, Reyes-Vargas informed the IJ that the Idaho state court had vacated his predicate aggravated felony conviction—aggravated battery against his wife—that had furnished the basis for his removal. This question belongs to the agency. We simply decide that it has jurisdiction to answer it.

BACKGROUND

In 1992, Reyes-Vargas, then a thirteen-year-old boy, arrived in the United States with his family as a lawful permanent resident. By July 2014, Reyes-Vargas had married. That month, his wife reported to police that Reyes-Vargas had beaten her in their Idaho home, forced her into the basement, and restrained her there with a belt fastened around her neck. Her brother-in-law later freed her after happening by the house with her child. Consistent with her report, police saw bruises, abrasions, and red marks on her body. The police arrested Reyes-Vargas, and prosecutors soon charged him with two Idaho felonies, aggravated battery and attempted strangulation, and one misdemeanor, false imprisonment. In December 2014, Reyes-Vargas pleaded guilty to two of the charges, aggravated battery and false imprisonment, after consulting with his attorney, and two months later, the court sentenced him to ten years’ imprisonment. But Reyes-Vargas’s criminal-defense attorney had failed to advise him of the immigration consequences of pleading guilty to this felony conviction, namely, its rendering him removable from the United States on two statutory grounds. See 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony), (a)(2)(E)(i) (domestic violence) (2012).

On August 20, 2015, the Department of Homeland Security (DHS) served Reyes-Vargas with a notice to appear for a removal proceeding. The notice advised him of the above two statutory grounds for removal. On October 26, 2015, after a hearing, an IJ ordered Reyes-Vargas removed from the United States. Reyes-Vargas waived his appeal, and the next month he was deported.

In July 2016, Reyes-Vargas’s immigration counsel filed in the Idaho state district court a motion for post-conviction relief, asserting a Padilla violation. See Padilla v. Kentucky , 559 U.S. 356, 359–60, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ("[C]onstitutionally competent counsel would have advised [the alien] that his conviction ... made him subject to automatic deportation."). In August 2016, the Idaho court granted the motion and vacated his felony conviction.

About seven months later, in March 2017, Reyes-Vargas filed in the Immigration Court a "Motion to Reopen Sua Sponte and Terminate Removal Proceedings."¹ R. at 96, 102 (some capitalization removed). There, he asked the IJ to exercise its sua sponte authority to reopen his removal proceedings based on what he asserted were compelling circumstances. The government opposed Reyes-Vargas’s request.² As pertains here, it argued that the regulation’s post-departure bar deprived the IJ of jurisdiction even to consider Reyes-Vargas’s request for sua sponte relief. Alternatively, the government argued that if the IJ had jurisdiction to do so, Reyes-Vargas had "failed to justify the use of the Immigraton [sic] Judge using his sua sponte authority."³ Id. at 92 (capitalization removed).

The IJ denied Reyes-Vargas’s motion by merely checking a box marked "[for] the reasons stated in the [government’s] opposition to the motion." Id. at 76. Reyes-Vargas appealed to the Board, arguing that the IJ’s decision was unreasoned and erroneous and "failed to provide any justification." Id. at 37. On appeal, the Board declined to reverse and remand, despite acknowledging that the IJ’s decision might be "unreasoned." See id. at 2–3, 37. The Board concluded that the agency’s post-departure-bar regulations deprived it and the IJ of jurisdiction to move sua sponte to reopen Reyes-Vargas’s removal proceedings. Reyes-Vargas filed a petition for review.

DISCUSSION

I. Our Jurisdiction

The Immigration and Nationality Act (INA) "gives the courts of appeals jurisdiction to review ‘final order[s] of removal.’ " Mata v. Lynch , 576 U.S. 143, 135 S. Ct. 2150, 2154, 192 L.Ed.2d 225 (2015) (alteration in original) (quoting 8 U.S.C. § 1252(a)(1) ) (citing 28 U.S.C. § 2342 ). But "we do not have jurisdiction to consider a petitioner’s claim that the [Board] should have sua sponte reopened the proceedings because there are no standards by which to judge the agency’s exercise of discretion." Jimenez v. Sessions , 893 F.3d 704, 708–09 (10th Cir. 2018) (internal quotation marks, citation, and alterations omitted). Because Reyes-Vargas’s petition requested that the IJ move to sua sponte reopen his removal proceedings, the government has argued that we lack jurisdiction in this case.⁴ But the Board never got to the merits of Reyes-Vargas’s request for the IJ to exercise authority sua sponte. Instead, the Board ruled that the IJ lacked jurisdiction to move sua sponte to reopen Reyes-Vargas’s removal proceedings.

We have jurisdiction to review that ruling. See Salgado-Toribio v. Holder , 713 F.3d 1267, 1271 (10th Cir. 2013) (noting that when the Board makes a legal determination, "[w]e do have jurisdiction to review" if there are "questions of law" presented (internal quotation marks omitted) (quoting 8 U.S.C. § 1252(a)(2)(D) )); see also Pllumi v. Att’y Gen. of the U.S. , 642 F.3d 155, 160 (3d Cir. 2011) ("[W]hen presented with a [Board] decision rejecting a motion for sua sponte reopening, [a court] may exercise jurisdiction to the limited extent of recognizing [reliance] on an incorrect legal premise."); Mahmood v. Holder , 570 F.3d 466, 469 (2d Cir. 2009) ("[W]here the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background[,] ... remand to the Agency for reconsideration in view of the correct law is appropriate.").

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we now turn to the Board’s decision.

II. Standard of Review

Both the IJ and the Board rendered a decision in this case, but "[b]ecause a single member of the [Board] affirmed the IJ’s decision in a brief order, we review the [Board]’s opinion rather than the decision of the IJ." Neri-Garcia v. Holder , 696 F.3d 1003, 1008 (10th Cir. 2012) (citations omitted). Ordinarily, we review the Board’s legal rulings de novo. See, e.g. , Ferry v. Gonzales , 457 F.3d 1117, 1126 (10th Cir. 2006). But here, the Board’s decision hinged on its interpretation of a regulation it administers,⁵ so our review turns on the deference framework announced in Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019).

A. Kisor Deference

For years, courts have "often deferred to agencies’ reasonable readings of genuinely ambiguous regulations." Kisor , 139 S. Ct. at 2408 (discussing Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ; Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ). Under Auer , courts deferred to an agency’s interpretation of its regulation "unless plainly erroneous or inconsistent with the regulation," even if the court would...