Rosillo-Puga v. Holder

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation580 F.3d 1147
Docket NumberNo. 07-9564.,07-9564.
PartiesMartin ROSILLO-PUGA, a/k/a Martin Puga, a/k/a Martin Rosillo, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> United States Attorney General, Respondent. The American Immigration Law Foundation, Amicus Curiae.
Decision Date15 September 2009

Trina Realmuto and Beth Werlin, Washington, D.C., filed an amicus curiae brief on behalf of the American Immigration Law Foundation.

Before LUCERO, ANDERSON, and O'BRIEN, Circuit Judges.

ANDERSON, Circuit Judge.

Petitioner Martin Rosillo-Puga seeks review of a decision issued by the Board of Immigration Appeals ("BIA"), in which the BIA affirmed the Immigration Judge's ("IJ") denial of Rosillo-Puga's motion to reconsider or reopen his deportation proceedings. The IJ, in reliance on regulations implementing the Immigration and Nationalization Act, had ruled that he lacked jurisdiction over the motion because Rosillo-Puga had previously been removed from the United States. After concluding that the regulations are valid, we deny Rosillo-Puga's petition for review.


On July 18, 1995, Rosilla-Puga, a native and citizen of Mexico, was admitted into the United States in Indiana as a conditional resident. On July 24, 1997, he was convicted of battery in an Indiana state court. On August 14, 2003, the Department of Homeland Security ("DHS") commenced removal proceedings against Rosillo-Puga by filing a Notice to Appear ("NA") before the immigration court in Aurora, Colorado. DHS charged Rosillo-Puga as being removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony (the 1997 battery conviction), as well as removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(I), because he had been convicted of a crime of domestic violence (the same battery conviction, which involved Rosillo-Puga's wife).

Rosillo-Puga appeared pro se at a hearing before an IJ and admitted the factual allegations in the NA. Based upon those admissions, the IJ ordered Rosillo-Puga removed to Mexico. Rosillo-Puga did not apply for relief from removal and he waived his right to appeal the removal order. Later in 2003, he was removed to Mexico. Three months following Rosillo-Puga's removal to Mexico, the Seventh Circuit held that a conviction for battery under Indiana law, pursuant to which Rosillo-Puga had been convicted, was not an aggravated felony or a crime of domestic violence for immigration law purposes. Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003).

On May 7, 2007, some three-and-one-half years after his removal to Mexico, Rosillo-Puga filed a "Motion to Reconsider and Rescind Removal Order, or in the Alternative to Reopen Proceedings" with the immigration court in Colorado. In his motion, Rosillo-Puga argued that, pursuant to 8 C.F.R. § 1003.23(b)(1), the immigration court could reconsider or reopen his case "at any time" and that the IJ had discretion to do so sua sponte.1 Rosillo-Puga specifically contended that the August 2003 decision to remove him was "based on an error of law" because the Seventh Circuit had subsequently clarified that his battery conviction was not an aggravated felony or a crime of violence which subjected Rosillo-Puga to removal. Respondent's Mot. at 1, Admin. R. at 63. Rosillo-Puga further argued that the Flores decision constituted "exceptional circumstances to invoke the Court's sua sponte jurisdiction." Id. at 9.

8 C.F.R. § 1003.23(b)(1) contains another provision critical to our decision in this case:

A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion 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. § 1003.23(b)(1). Thus, pursuant to this regulatory provision's post-departure bar, aliens like Rosillo-Puga who have been removed from the United States may not file a motion to reopen or reconsider their removal proceeding. In his motion to reopen or reconsider, Rosillo-Puga argued that, despite the fact that he had departed the United States, the regulation's "at any time" language "permits an Immigration Judge to exercise sua sponte jurisdiction regardless of whether the motion is made pre- or post-departure." Respondent's Motion at 11, Admin. R. at 73. He also argued that his removal to Mexico did not bar his motion to reopen because the deportation bar of 8 C.F.R. § 1003.23(b)(1) "does not apply to those who have already been removed and are therefore no longer `the subject of removal proceedings.'" Id. at 11-12. Finally, Rosillo-Puga argued that, because of the "at any time" language in § 1003.23(b)(1), the time limits contained in the statute for motions to reconsider (within thirty days of the entry of the final order of removal) and motions to reopen (within ninety days of the entry of the final order of removal) did not bar his motion.

The IJ denied Rosillo-Puga's motion. While noting that "[i]n most circumstances, an IJ has general discretion to reopen and reconsider proceedings," the IJ concluded that the post-departure bar specifically "precludes the IJ to exercise his general discretion in reopening and reconsidering proceedings under such circumstances." Mem. and Dec. at 2, Admin. R. at 54. Citing Shawnee Tribe v. United States, 423 F.3d 1204, 1213 (10th Cir.2005), the IJ held that "the general sua sponte authority given to an IJ to reopen and reconsider proceedings is limited by the more specific prohibition on making such motions on behalf of a person who has departed after an order of removal." Id.2 The IJ accordingly denied Rosillo-Puga's motions to reconsider or reopen the proceedings.

Rosillo-Puga appealed the adverse decision to the BIA. He argued the IJ committed legal errors in denying his motion to reopen or reconsider because: there was no conflict between the provision that an IJ can reconsider or reopen a proceeding "at any time" and the post-departure bar; the post-departure bar did not apply to those, like him, who had already been removed and were no longer in removal proceedings; he was not legally removed; the regulation was contrary to the applicable statute; the regulation was unconstitutional; the Seventh Circuit's Flores decision constituted "extraordinary circumstances sufficient to invoke sua sponte authority" and Rosillo-Puga was not time-barred even though three and one-half years had elapsed since his removal. See Notice of Appeal, Admin. R. at 42. The BIA affirmed the IJ's decision and dismissed Rosillo-Puga's appeal. The BIA agreed with the IJ that 8 C.F.R. § 1003.23(b)(1) deprived the immigration court of jurisdiction over motions to reopen or reconsider made by aliens subsequent to their departure from the United States. The Board also agreed with the IJ's conclusion that the more specific post-departure bar trumps the more general language giving the IJ authority to reopen or reconsider a proceeding sua sponte. This petition for review followed. Addressing the issues as the parties have presented them, we deny the petition for review.

I. Standard of Review

The BIA in this case issued a single-member brief order, pursuant to 8 C.F.R. § 1003.1(e)(5), affirming the IJ's decision. "We have held . . . that the (e)(5) brief order . . . produces an independent BIA decision that constitutes the final order of [the agency]." Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006). "Accordingly, in deference to the agency's own procedures, we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." Id. "When reviewing a BIA decision, we search the record for `substantial evidence' supporting the agency's decision." Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir.2007). "Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole." Id. (quoting Uanreroro, 443 F.3d at 1204). We examine questions of law de novo. Turgerel v. Mukasey, 513 F.3d 1202, 1205 (10th Cir. 2008).

II. Background of Immigration Laws

We begin by detailing the history of the statute and regulations at issue in this case. The McCarran-Walter Act of 1952 established the structure of current immigration laws, Pub.L. No. 82-414, 66 Stat. 163 (March 27, 1952) (codified at 8 U.S.C. §§ 1101-1537 (1952)). As part of an amendment of the immigration laws in 1961, Congress provided that federal courts could not exercise jurisdiction over deportation and exclusion orders where the alien had departed the United States following issuance of the order. Thus, 8 U.S.C. § 1105a(c)(1962) provided:

An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order.

Three months after the enactment of the 1962 laws, the Attorney General issued implementing regulations, including 8 C.F.R. § 3.2, titled "Reopening or reconsideration before the [BIA]." That regulation paralleled § 1105a(c), and provided:

[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...

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