Rubio-Montano v. Holder ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2013
Elisabeth A. Shumaker
Clerk of Court
CARLOS ENRIQUE
RUBIO-MONTANO; GLORIA
LETICIA REGALDO-HORTA,
Petitioners,
v. No. 13-9518
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.
Carlos Enrique Rubio-Montano and Gloria Leticia Regaldo-Horta
(“Petitioners”), a married couple who are natives and citizens of Mexico, seek review
of the denial of their motion for reconsideration by the Board of Immigration Appeals
(“BIA”). We deny the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
Petitioners were admitted to the United States in September 2001 as
nonimmigrant visitors authorized to remain until March 25, 2002. They stayed
beyond that date without permission and took up residence in Oklahoma with the
intent to stay permanently. In 2005, they were placed in removal proceedings. They
conceded removability but successfully obtained an administrative closure of the
proceedings to pursue a private bill in Congress to gain citizenship. After their effort
proved fruitless, the removal proceedings were reopened, and in 2010 they appeared
before an Immigration Judge (“IJ”). They did not seek any form of relief from
removal but instead filed a motion to terminate the proceedings on the ground that,
under the Law of Nations, they are de facto Oklahoma citizens, and there is no power
enumerated in the Constitution that gives the federal government jurisdiction to
remove Oklahoma citizens who were lawfully admitted to the United States.
Therefore, they argued, the federal government could not authorize the Immigration
Court to hold removal proceedings, and only the State of Oklahoma could remove
them. The government responded that the Immigration Court had exclusive
jurisdiction under 8 U.S.C. § 1252(g).
The IJ rejected Petitioners’ arguments, observing that the Constitution gives
Congress the authority to “establish an uniform Rule of Naturalization,” U.S. Const.
art. I, § 8, cl. 4 (“Naturalization Clause”), and Congress has done precisely that in
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enacting a plenary and exclusive federal statutory immigration framework. The IJ
therefore determined he had jurisdiction and ordered Petitioners removed.
Petitioners appealed to the BIA, largely reiterating their previous arguments
but also suggesting that naturalization and removal were separate powers. The
purpose of the Naturalization Clause, Petitioners argued, was to ensure uniform
citizenship requirements among the states. Petitioners claimed that the
Naturalization Clause grants no removal power to the federal government. The
government responded with a motion for summary affirmance. The BIA affirmed,
citing Arizona v. United States, 132 S. Ct. 2492 (2012), and Toll v. Moreno,
458 U.S. 1 (1982), for the proposition that the federal government has broad
authority over immigration and alien status. That power, the BIA said, derives from
the Naturalization Clause and the federal government’s “inherent power as sovereign
to control and conduct relations with foreign nations.” The BIA concluded that the
federal government has exclusive power “to promulgate laws governing the
admission and removal of aliens,” and therefore the Immigration Court had
jurisdiction under § 1252(g).
Petitioners did not seek judicial review of the BIA’s decision. They instead
filed a motion for reconsideration. In addition to restating their previous arguments,
they contended that Arizona was inapplicable because it did not concern the precise
jurisdictional issue Petitioners raised. They also claimed that, based on the
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government’s failure to file a response brief, the BIA should have deemed their
appeal unopposed and terminated the removal proceedings.
The BIA denied reconsideration, finding no error in its previous decision and
concluding that a substantial portion of the motion consisted of the same arguments
advanced in the underlying appeal. The BIA also rejected the argument that it should
have considered the motion unopposed because “section 4.12(a) of the [BIA’s]
Practice Manual expressly provides that ‘the failure of the opposing party to
affirmatively oppose an appeal does not automatically result in the appeal being
sustained,’” and, in the alternative, the government had opposed the motion by filing
a motion for summary affirmance.
II
To the extent Petitioners seek to challenge the BIA’s underlying order
upholding the IJ’s decision, we lack jurisdiction to review that order because they
“did not timely file a petition for review from that order within thirty days as
required by 8 U.S.C. § 1252(b)(1).” Infanzon v. Ashcroft, 386 F.3d 1359, 1361
(10th Cir. 2004). Their petition is timely with respect to the BIA’s order denying
their motion for reconsideration, and we therefore have jurisdiction to review that
denial. We review the denial of a motion for reconsideration for abuse of discretion,
Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003), and any legal or
constitutional questions de novo, Lorenzo v. Mukasey, 508 F.3d 1278, 1282
(10th Cir. 2007). “The BIA abuses its discretion when its decision provides no
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rational explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Infanzon, 386 F.3d
at 1362 (quotation omitted).
Petitioners have failed to demonstrate any error. We first reject Petitioners’
contention that the BIA ignored points of legal error raised in their motion. The BIA
correctly denied reconsideration of any previously raised arguments. See Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004); In re O-S-G, 24 I. & N. Dec. 56, 58
(BIA 2006). Second, the BIA did not—as Petitioners argue—refuse to treat their
motion as unopposed. Instead, it properly applied § 4.12(a) of its Practice Manual,
which states in relevant part that “the [BIA] may consider the opposing party’s
silence in adjudicating the appeal, [but] the silence does not dictate the disposition of
the appeal.”
Third, although the BIA did not explicitly provide an explanation for rejecting
Petitioners’ argument that Arizona was inapplicable, the motion for reconsideration
fails to demonstrate any error of law in the BIA’s disposition of the appeal. In
relevant part, the Arizona Court stated that “[t]he Government of the United States
has broad, undoubted power over the subject of immigration and the status of aliens.”
Arizona, 132 S. Ct. at 2498. And prior to Arizona, the Supreme Court explained that
the federal government, not the states, has the power to regulate admitted aliens
before naturalization:
The Federal Government has broad constitutional powers in determining
what aliens shall be admitted to the United States, the period they may
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remain, regulation of their conduct before naturalization, and the terms
and conditions of their naturalization. Under the Constitution the states
are granted no such powers; they can neither add to nor take from the
conditions lawfully imposed by Congress upon admission,
naturalization and residence of aliens in the United States or the several
states.
Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948) (citation omitted); see
also Carlson v. Landon, 342 U.S. 524, 534 (1952) (“So long . . . as [legally admitted]
aliens fail to obtain and maintain citizenship by naturalization, they remain subject to
the plenary power of Congress to expel them under the sovereign right to determine
what noncitizens shall be permitted to remain within our borders.”). The Court has
further stated that “Federal authority to regulate the status of aliens derives from
various sources,” including the Naturalization Clause and the Foreign Commerce
Clause, as well as the federal government’s “broad authority over foreign affairs.”
Toll, 458 U.S. at 10. Petitioners’ claim that their status as inhabitants of Oklahoma
prevents the federal government from enforcing its immigration laws against them
lacks any basis in precedent. Petitioners conceded that they were statutorily
removable and the BIA properly concluded that it had jurisdiction over Petitioners.
We therefore conclude that the BIA did not abuse its discretion in denying the motion
for reconsideration.
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III
We DENY the petition for review.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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