Toora v. Holder

• Decision Date: 08 April 2010
• Docket Number: No. 09-60073.,09-60073.
• Citation: 603 F.3d 282
• Parties: Dhanvir TOORA, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

603 F.3d 282

Dhanvir TOORA, Petitioner,
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09-60073.

United States Court of Appeals, Fifth Circuit.

April 8, 2010.

603 F.3d 283

Dhanvir Toora, Sickerville, NH, pro se.

Gladys Marta Steffens Guzman, Tangerlia Cox, Thomas Ward Hussey, Ernesto Horacio Molina, Jr., Dept. of Justice, Office of Immigration Lt., Washington, DC, E.M. Trominski, Harlingen, TX, for Respondent.

Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Dhanvir Toora, proceeding pro se, raises on appeal the question of whether the departure bar, 8 C.F.R. § 1003.23(b)(1), applies to an alien who departs the United States after receiving notice of his deportation proceeding, but before the proceeding is completed and the Immigration Judge ("IJ") enters a deportation order. We find the departure bar does apply in this situation and divests the IJ of jurisdiction to hear the alien's motion to reopen his deportation proceeding.

I. FACTS

Toora is a native of India. He illegally entered the United States in February 1995 without being inspected by an immigration officer. The day after his entry, Toora was personally served with an Order to Show Cause why he should not be deported for entering the United States without inspection pursuant to then 8 U.S.C. § 1251(a)(1)(B) (now 8 U.S.C. § 1227(a)(1)(B)). Toora was detained at the Port Isabel Service Processing Center ("PISPC") in Los Fresnos, Texas.

On March 13, 1995, a Notice to Appear ("NTA") was sent to Toora, care of PISPC, notifying him that his deportation hearing was scheduled for April 3, 1995. The Notice also stated that if Toora failed to appear at the scheduled deportation hearing, he could be ordered deported in absentia.

Also on March 13, 1995, Toora posted bond and was released from custody. Toora reported that he was moving to a New York address. Toora left the United States on March 23, 1995, and returned to India without notifying INS of his departure.

On April 3, 1995, Toora's deportation proceeding was held. Toora was not in attendance and the IJ ordered Toora deported in absentia. The IJ determined that the record showed by clear and convincing evidence that Toora was provided with a written NTA and that he could be deported.

On August 27, 1995, Toora re-entered the United States under a different name. He did not disclose his prior entry or the April 1995 deportation proceedings of which he had received notice. Upon his re-entry, Toora applied for asylum. Unaware of Toora's prior entry and deportation, an INS asylum officer granted Toora asylum.

In March 2007, DHS informed Toora of its intention to rescind the August 1995 grant of asylum. DHS stated that the INS asylum officer had been without jurisdiction to grant asylum because of Toora's

603 F.3d 284

earlier deportation proceedings. According to the DHS, 8 C.F.R. § 208.2(b) (now 8 C.F.R. § 1208.2(b)) gives immigration judges exclusive jurisdiction over asylum applications filed by aliens who are in deportation proceedings. DHS asserted that Toora had been ordered deported in April 1995, but that the order was never executed. DHS reasoned, therefore, that the deportation proceedings remained pending and thus the IJ retained exclusive jurisdiction over Toora's asylum application, to the exclusion of the INS officer. Based on this reasoning, DHS concluded the August 1995 grant of asylum by the INS asylum officer was void ab initio.

Toora did not challenge the DHS position that the asylum officer had been without jurisdiction. Instead, Toora responded by filing a motion to reopen and rescind the April 1995 in abstentia deportation order. Toora argued that he never received the NTA for the April 3, 1995 deportation hearing. The IJ first determined that Toora received written notice of the April 1995 deportation hearing. The IJ further found that under 8 C.F.R. § 1003.23(b)(1) (referred to as the "departure bar"), he lacked jurisdiction to consider the motion to reopen and denied the motion. Alternatively, the IJ determined that assuming he did have jurisdiction, Toora's motion should be denied because it was time-barred pursuant to 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), which requires that a motion to reopen a deportation order entered in absentia must be filed within 180 days after the order of deportation is entered.

Toora appealed the IJ's order to the Board of Immigration Appeals ("BIA"). The BIA dismissed Toora's appeal. First, the BIA affirmed the IJs finding that Toora received notice of the April 1995 deportation hearing. The BIA concluded, however, that the IJ did have jurisdiction to hear Toora's motion to reopen because the departure bar was inapplicable. The BIA, nonetheless, agreed with the IJ that Toora's motion was time-barred and that no equitable tolling excused the late filing because Toora failed to exercise due diligence in seeking a rescission of the April 1995 deportation order. The BIA then affirmed the denial of the motion to reopen.

Toora timely appealed the BIA's order.

II. STANDARD OF REVIEW

This court has jurisdiction to hear this appeal under 8 U.S.C. § 1252(a)(1). On a petition for review of a decision of the BIA, we review questions of law de novo and findings of fact for substantial evidence. Sung v. Keisler, 505 F.3d 372, 375 (5th Cir.2007) (citing Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001)). In reviewing the BIA's interpretation of immigration statutes, where Congress has evidenced a clear and unambiguous intent concerning the question before this court, we must give effect to Congress's intent. White v. INS, 75 F.3d 213, 215 (5th Cir.1996) (citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). If a statute is silent or ambiguous, we will defer to the agency's interpretation of the provisions the agency administers, so long as those interpretations are based on a permissible construction of the statute. Id. (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778).

III. ANALYSIS

The threshold issue on appeal is whether the IJ had jurisdiction over Toora's motion to reopen.¹ Toora argues

603 F.3d 285

on appeal that the IJ correctly held that he lacked jurisdiction to consider Toora's motion to reopen the April 1995 deportation proceeding because Toora was subject to deportation proceedings when he departed the United States. Toora bases his argument on his interpretation of the regulation establishing the departure bar, which states in pertinent part that "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...." 8 C.F.R. § 1003.23(b)(1). Toora argues that this regulation divested the IJ of jurisdiction to hear his motion to reopen and reconsider his April 1995 deportation.²

The Government argues that the BIA was correct in determining that the IJ had jurisdiction to hear Toora's motion. The Government contends that the departure bar applies only when an alien departs the United States after an order of deportation is entered.

Toora argues first that the IJ and the BIA erred in finding that Toora received the NTA before he departed the country on March 23, 2007. Our review of the record reveals that substantial evidence supports that finding, and we see no basis to disturb this finding of fact. Because Toora received notice of his deportation proceeding and he was deportable based on his entering the United States without inspection, the original IJ had the authority pursuant to 8 C.F.R. § 1003.26 to hold a deportation hearing and enter a valid deportation order in absentia.

Because a valid deportation order was entered against Toora, the question in this case narrows to whether the departure bar applies to an alien who departs the United States after receiving notice of his deportation proceeding, but before the actual proceeding concludes and an IJ enters a valid deportation order. This court has considered the application of the departure bar when the alien departs the United States after termination of removal proceedings. In Ovalles v. Holder, 577 F.3d 288 (5th Cir.2009), an alien was convicted of a felony and removed from the United States following a removal hearing before an IJ and an appeal to the BIA. Three years after his removal, the alien filed a motion with the BIA to reopen and reconsider his removal proceedings in light of a United States Supreme Court case decided after he was deported. We held that the departure bar applies to aliens who depart the United States after the termination of their removal proceedings, and that the IJ lacked jurisdiction to hear the alien's motion to reopen his case. See also Matter of Armendarez-Mendez, 24 I & N Dec. 646, 65152 (BIA 2008) (holding that the departure bar prohibited an alien from invoking BIA's jurisdiction to consider his motion to reopen when the motion was filed after the alien's departure from the United States following a final administrative order of removal).

603 F.3d 286

The Ninth Circuit has examined the application of the departure bar to an alien who departs the United States before removal proceedings are initiated. In Singh v. Gonzales, 412 F.3d 1117 (9th Cir.2005), an alien remained in the United States past the time authorized on his visitor visa. The alien initially applied for asylum, but then wrote a letter withdrawing his asylum application and departed the United States. The asylum office was not aware that the alien had departed the United States and served a NTA on the...