Toor v. Lynch

789 F.3d 1055

Jasbir Singh TOOR, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 10–73212.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2015.

Filed June 17, 2015.

Marie L. Kayal (argued), The Law Office of Marie L. Kayal, Burlingame, CA, for Petitioner.

Ann C. Varnon (argued), Trial Attorney; Tony West, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; and Sunah Lee, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A056–361–534.

Before: STEPHEN REINHARDT, N. RANDY SMITH, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which inter alia provides all noncitizens a statutory guarantee that they may file “one motion to reconsider a decision that the alien is removable from the United States,” 8 U.S.C. § 1229a(c)(6)(A), and “one motion to reopen proceedings,” 8 U.S.C. § 1229a(c)(7)(A). See Dada v. Mukasey, 554 U.S. 1, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (“[T]he statutory text is plain insofar as it guarantees to each alien the right to file ‘one motion to reopen proceedings under this section.’ ” (citation omitted)). That guarantee was limited in some ways—with number, content, and time restrictions—but not in any respect by whether the noncitizen had departed the United States prior to filing such motions.

Two regulations that predate the passage of IIRIRA—hereinafter referred to as the regulatory departure bar—provide that a noncitizen who is the subject of immigration proceedings may not make a motion to reopen or reconsider “subsequent to his or her departure from the United States.” See 8 C.F.R. § 1003.23(b)(1) (concerning motions to reopen or reconsider made before an Immigration Judge); 8 C.F.R. § 1003.2(d) (concerning motion to reopen or reconsider made before the Board of Immigration Appeals (BIA)). In Matter of Armendarez–Mendez, 24 I. & N. Dec. 646, 660 (BIA 2008), the BIA held that the regulatory departure bar survives the passage of IIRIRA. Here, we consider whether the BIA was correct, or whether the regulatory departure bar conflicts with IIRIRA's statutory guarantee that noncitizens may file one motion to reopen and one motion to reconsider irrespective of whether they previously departed the United States.

This is not the first time we have examined the regulatory departure bar. As a matter of regulatory interpretation, we have held that the departure bar does not apply to noncitizens who departed the United States either before removal proceedings have commenced, see Singh v. Gonzales, 412 F.3d 1117 (9th Cir.2005), or after removal proceedings were completed, see Lin v. Gonzales, 473 F.3d 979 (9th Cir.2007). In considering the relationship between the regulatory departure bar and IIRIRA, we have held that the regulatory departure bar is invalid as applied to a noncitizen who is involuntarily removed from the United States. See Reyes–Torres v. Holder, 645 F.3d 1073 (9th Cir.2011) ; Coyt v. Holder, 593 F.3d 902 (9th Cir.2010).

We have not, however, addressed whether the regulatory departure bar may be validly applied to a noncitizen who voluntarily departs the United States during removal proceedings. Although we have never upheld the invocation of the regulatory departure bar in a precedential decision, we have reserved that question. See Coyt, 593 F.3d at 907 n. 3 (“Other circuits have considered whether 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1)... can be applied to any removal—voluntary or involuntary—a question we need not, and do not, reach in this case.”); Cardoso–Tlaseca v. Gonzales, 460 F.3d 1102, 1106 n. 2 (9th Cir.2006). Now, we address the question, and consistent with every other circuit that has addressed it, we hold the regulatory departure bar invalid irrespective of how the noncitizen departed the United States.¹

I.

Jasbir Singh Toor (Petitioner), a native and citizen of India, was admitted to the United States as a lawful permanent resident on a conditional basis in 2003. In 2005, the former Immigration and Naturalization Service (INS) approved his petition to remove the conditions on his residence. On August 23, 2007, the Department of Homeland Security (DHS) initiated removal proceedings against Petitioner, charging that he was removable for fraudulently or willfully misrepresenting a material fact on a visa petition in violation of INA § 212(a)(6)(C)(I), and for lacking a valid entry document at the time of his application for admission in violation of INA § 212(a)(7)(A)(i)(I). On November 3, 2008, an Immigration Judge (IJ) sustained both charges of removability. Two days later, the IJ granted Petitioner until December 19, 2008, to apply for all forms of relief from removal. Petitioner did not do so, and on February 3, 2009, the IJ considered all requests for relief waived and abandoned, and ordered Petitioner removed to India.

Petitioner filed a timely motion to reopen or reconsider his removal proceedings, in which he argued that the IJ could not validly order him removed to India because Petitioner had already “departed the United States and arrived in India on April 3, 2008” before the IJ ordered him removed. The IJ denied Petitioner's motion, holding that, pursuant to 8 C.F.R. § 1003.23(b)(1) —the regulatory departure bar applicable to proceedings before an Immigration Judge—the IJ had no jurisdiction to entertain Petitioner's motion to reopen or reconsider because Petitioner had “voluntarily left the United States while his removal proceedings were pending.”² The BIA dismissed Petitioner's appeal. Like the IJ, the BIA explained that it had no jurisdiction to consider Petitioner's motion because the regulatory departure bar—located for the BIA at 8 C.F.R. § 1003.2(d) —precludes a noncitizen from moving the BIA to reopen or reconsider his removal proceedings subsequent to his departure from the United States, and Petitioner had “self-deported from the United States during the pendency of administrative proceedings.” The instant petition for review followed.

II.

We have jurisdiction to review questions of law presented in a petition for review. 8 U.S.C. § 1252(a)(2)(D). “We review the BIA's denial of motions to reopen or to reconsider for abuse of discretion, ‘although [de novo] review applies to the BIA's determination of purely legal questions.’ ” Cano–Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir.2002) (quoting Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002) ). The subject of this appeal—the validity of the regulatory departure bar—presents a purely legal question of statutory interpretation to which we apply de novo review, “giving appropriate deference to the agency if warranted.” Arteaga–De Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir.2012).

III.

Separate sections in the Federal Register provide essentially an identical limitation on motions to reopen or to reconsider filed before an IJ, on the one hand, and the BIA, on the other. The regulation pertaining to motions to reopen or to reconsider made before an IJ states, in relevant part:

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). The regulation pertaining to motions to reopen or to reconsider made before the BIA states:

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 exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.

8 C.F.R. § 1003.2(d). These regulations compose the regulatory departure bar. In this case, the IJ and the BIA refused to exercise jurisdiction over Petitioner's motion to reopen and reconsider because he had voluntarily departed the United States during his immigration proceedings, and therefore was barred by the regulatory departure bar from making a motion to reopen or to reconsider.

Petitioner argues that the regulatory departure bar conflicts with the statutory right to file a motion to reopen and a motion to reconsider provided in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In Matter of Armendarez–Mendez, 24 I. & N. Dec. 646, 660 (BIA 2008), the BIA held that the regulatory departure bar, which predated the passage of IIRIRA, “remains in full effect” after IIRIRA. The BIA explained that it saw “nothing in the language or legislative history of ... IIRIRA that would lead [it] to conclude that [IIRIRA] was intended to override the existing regulatory scheme governing the filing and adjudication of motions in removal proceedings.”Id. at 657.

“We apply Chevron deference to the Board's interpretations of ambiguous immigration statutes, if the Board's decision is a published decision” or an unpublished decision “directly controlled by [a] published decision.” Guevara v. Holder, 649 F.3d 1086, 1089–90 (9th Cir.2011) (quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.2010) ) (internal quotation marks omitted). In this case, the BIA issued an unpublished decision, but it was directly controlled by Matter of Armendarez–Mendez, a published decision. Therefore, we apply Chevron deference. Under Chevron, we first ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter....” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

Here, we hold that Congress has directly...