Santana v. Holder

• Decision Date: 27 September 2013
• Docket Number: No. 12–2270.,12–2270.
• Citation: 731 F.3d 50
• Parties: Vladimir Perez SANTANA, Petitioner, v. Eric H. HOLDER, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

731 F.3d 50

Vladimir Perez SANTANA, Petitioner,

v.Eric H. HOLDER, Attorney General, Respondent.

No. 12–2270.

United States Court of Appeals, First Circuit.

Sept. 27, 2013.

Jeffrey B. Rubin and Kathleen M. Gillespie on brief for petitioner.

Trina Realmuto, with whom Beth Werlin was on brief, for American Immigration Council, National Immigration Project of the National Lawyers Guild, and Post–Deportation Human Rights Project, amici curiae.

Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, with whom Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division, and Colin J. Tucker, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

Before HOWARD, LIPEZ, and KAYATTA, Circuit Judges.

LIPEZ, Circuit Judge.

Born in the Dominican Republic in 1987, Vladimir Perez Santana immigrated to the United States and became a lawful permanent resident (“LPR”) in 1997. In March 2010, Perez Santana pled guilty in state court to one charge of possession of a controlled substance with intent to distribute. He received a one-year probationary sentence.

The Department of Homeland Security (“DHS”) placed Perez Santana into removal proceedings and found him both removable and ineligible for discretionary relief. After the agency ordered his removal, Perez Santana sought vacatur of his criminal conviction on constitutional grounds. Successful in this effort, he then filed a motion to reopen his proceedings before the Board of Immigration Appeals (“BIA”), seeking vacatur of his order of removal as well. By the time he sought reopening, however, Perez Santana had already been removed to the Dominican Republic. The BIA denied his motion, invoking a regulation known as the “post-departure bar,” which precludes a noncitizen from filing a motion to reopen “subsequent to his or her departure from the United States.” 8 C.F.R. § 1003.2(d).

Perez Santana petitions for our review, contending, inter alia, that the post-departure bar conflicts with the clear language of the immigration statute, which grants “[a]n alien” the right to file a single motion to reopen. 8 U.S.C. § 1229a(c)(7). We agree. The post-departure bar cannot prevent a noncitizen from invoking his statutory right to file a motion to reopen. We therefore grant Perez Santana's petition.

I.

The facts of this case are straightforward. Perez Santana was born in the Dominican Republic in 1987. When he was nine years old, he immigrated to the United States with his family as an LPR. On March 9, 2010, Perez Santana pleaded guilty in Massachusetts state court to one charge of possession with intent to distributea class D substance, namely, marijuana. He was sentenced to one year of probation.

On September 7, 2010, Perez Santana was issued a notice to appear for removal proceedings, which charged that his criminal conviction was a drug trafficking aggravated felony under the immigration statute. See8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Three months later, the immigration judge (“IJ”) found Perez Santana removable on the basis of his conviction, and also determined that because the conviction constituted an aggravated felony, he was ineligible for relief from removal. See8 U.S.C. § 1229b(a)(3) (requiring that applicant for cancellation of removal for LPRs must not be convicted of “any aggravated felony”). Perez Santana sought review before the BIA, which applied its prior precedent on this subject and dismissed his appeal.¹See Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702 (BIA 2012). The BIA's order was entered, and Perez Santana's removal became final on April 16, 2012.

On May 23, 2012, Perez Santana filed a motion to withdraw his plea in the Massachusetts state courts. He contended that under the Supreme Court's then-recent decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), his plea was taken in violation of his Sixth Amendment right to the effective assistance of counsel because he was not informed of the potential immigration consequences of his conviction.

While Perez Santana sought vacatur of his criminal conviction, he also sought to stay his removal before the DHS. Sometime in May 2012, DHS denied his request for a stay and deported him to the Dominican Republic on May 29, 2012. ²

On July 11, 2012, after initially denying Perez Santana's motion to withdraw his plea, the Massachusetts court reconsidered and granted his motion. Perez Santana immediately filed a motion to reopen his removal proceedings before the BIA, eighty-eight days after his removal became final. He argued that because his criminal conviction was now vacated, it could no longer serve as a ground for his removal.

On September 24, 2012, the BIA returned Perez Santana's motion to the IJ without further action, concluding that the post-departure bar prevented him from filing a motion to reopen once he departed the United States. See8 C.F.R. § 1003.2(d); see also id. § 1003.23(b)(1). The BIA also relied on its prior opinion in Matter of Armendarez–Mendez, 24 I. & N. Dec. 646 (BIA 2008), which held that the post-departure bar divested it of jurisdiction to consider a motion to reopen filed by a noncitizen subsequent to his departure from the United States.

Perez Santana timely sought review before this court of the denial of his motion to reopen.³

II.

We review the BIA's denial of a motion to reopen for abuse of discretion. Bead v. Holder, 703 F.3d 591, 593 (1st Cir.2013). Under this standard, the petitioner must demonstrate that “ ‘the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.’ ” Id. (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)). Perez Santana's primary contention is that the agency committed a legal error when it concluded that the post-departure bar divested it of the ability to consider his motion to reopen. Our review of legal questions is de novo, “with deference given ‘to the BIA's reasonable interpretations of statutes and regulations falling within its purview.’ ” Aponte v. Holder, 683 F.3d 6, 10 (1st Cir.2012) (quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir.2011)).

A. The Motion to Reopen Statute and the Post–Departure Bar

“The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana v. Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). The procedure is codified in a statute, 8 U.S.C. § 1229a(c)(7)(A), which provides that “[a]n alien may file one motion to reopen proceedings.” The statute expressly prescribes other requirements, including that the motion “state the new facts that will be proven at a hearing to be held if the motion is granted,” id. § 1229a(c)(7)(B), that the motion “be supported by affidavits or other evidentiary material,” id., and that the motion “be filed within 90 days of the date of entry of a final administrative order of removal,” id. § 1229a(c)(7)(C)(i). Importantly, the statute does not denominate a physical presence or geographic limitation in its general provisions.

The statute carves out certain exceptions to these general requirements. Applicants for asylum, for example, are exempt from the ninety-day time limit if their application is based on evidence of changed country conditions in the country to which they are to be removed, and “if such evidence is material and was not available and would not have been [previously] discovered or presented.” Id. § 1229a(c)(7)(C)(ii). There is also a special rule for battered spouses, which extends the filing deadline to one year and waives the numerical limitation. Id. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(iv). In contrast to the statute's general provisions, the special rule for battered spouses requires the noncitizen to be “physically present in the United States at the time of filing the motion.” Id. § 1229a(c)(7)(C)(iv)(IV).

In its current form, the post-departure bar comprises two separate regulations, one of which applies to motions filed before the BIA and the other to motions filed before the IJ. See8 C.F.R. § 1003.2(d) (BIA); id. § 1003.23(b)(1)(I, J). Though codified in different sections, the regulations contain the same language:

A motion to reopen ... 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 ... shall constitute a withdrawal of such motion.

8 C.F.R. § 1003.2(d); see also id. § 1003.23(b)(1).

The BIA has published a precedential opinion upholding the post-departure bar's validity. In Matter of Armendarez–Mendez, the BIA construed the post-departure bar as a limitation on its own jurisdiction and decided that the agency therefore lacked the power to entertain motions to reopen filed by noncitizens who had departed the United States. 24 I. & N. Dec. at 648–49, 660.

B. Pena–Muriel and Subsequent Litigation Concerning the Post–Departure Bar

This case is not the first time we have addressed the validity of the post-departure bar. In Pena–Muriel v. Gonzales, 489 F.3d 438 (1st Cir.2007), the petitioner asserted that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) abrogated the regulation we now know as the post-departure bar. This is true, the petitioner asserted, because IIRIRA repealed statutory provision 8 U.S.C. § 1105a(c) (1994) (repealed by Pub.L. No. 104–208, Title III, § 306(b), 110 Stat. 3009, 3009–612). The repealed statute precluded a federal court from reviewing “[a]n order of deportation ... if the alien ... has departed from the United States after the issuance of the...