Silerio-Nunez v. Holder, Jr. ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ISIDRO SILERIO-NUNEZ,
Petitioner,
v. No. 08-9556
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.
Isidro Silerio-Nunez petitions for review of an order of the Board of
Immigration Appeals (BIA), in which the BIA affirmed the Immigration Judge’s
(IJ) decision denying petitioner’s motion to reopen. The IJ and the BIA both
concluded that they lacked jurisdiction to reopen petitioner’s removal proceedings
because of the post-departure bar in 8 C.F.R. § 1003.23(b)(1), which prohibits
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
review of motions to reopen removal proceedings once an alien has departed the
United States. Before us, petitioner seeks to overcome this result by challenging
the validity of § 1003.23(b)(1). We recently addressed a materially identical
challenge to the post-departure bar, however, and concluded that the regulation
was valid. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1156-57 (10th Cir. 2009).
Our precedent thus compels us to deny this petition for review.
***
Petitioner was a lawful permanent resident when he was convicted in Idaho
of the felony offense of driving under the influence (DUI) and sentenced to three
years in prison. In November 2000, an IJ found him removable as an alien
convicted of an aggravated felony and ordered him removed to Mexico. These
removal proceedings took place in Denver, Colorado, within the Tenth Circuit.
Petitioner waived his right to appeal the IJ’s decision. He departed the United
States shortly after the removal order, but he then returned to this country eleven
days later by presenting his old permanent resident card.
In February 2005, new removal proceedings were initiated against
petitioner, this time charging him as removable for having re-entered the United
States by fraud or willful misrepresentation and without a valid entry document.
These second removal proceedings took place in Kansas City, Missouri, within
the Eighth Circuit.
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During the pendency of the second removal proceedings, petitioner filed a
motion to reopen his original removal with the IJ in Denver, Colorado. He did so
in order to seek the retroactive application of the Supreme Court’s decision in
Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court determined that a
DUI was not a crime of violence and therefore could not be considered an
aggravated felony under the Immigration and Nationality Act. Id. at 4-6. The IJ
in Denver denied the motion, concluding that 8 C.F.R. § 1003.23(b)(1) precluded
him from exercising jurisdiction to reopen or reconsider proceedings after
petitioner’s departure from the United States pursuant to a final order of removal.
Petitioner appealed this decision to the BIA, and the BIA affirmed the IJ’s order.
Petitioner then sought review in this court, given that the locus of his original
removal proceeding was within this circuit. Meanwhile, the IJ in Kansas City in
the second removal proceedings found petitioner removable as charged.
Petitioner has filed a separate appeal in the Eighth Circuit challenging the BIA’s
decision affirming the second removal order issued by the IJ in Kansas City.
After petitioner filed his brief in this court seeking review of the BIA’s
decision not to reopen his original removal proceeding, we issued an opinion in
Rosillo-Puga, which appeared to address and foreclose many of petitioner’s
arguments. In an abundance of caution, we asked the parties to submit
supplemental briefs addressing the impact of Rosillo-Puga on this case. Those
briefs have been filed and this case is now ready for disposition.
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***
Before us, petitioner argues that § 1003.23(b)(1) is invalid because it
directly conflicts with 8 U.S.C. §§ 1229a(c)(6)(A) and (7)(A). Alternatively,
petitioner asserts that, even if § 1003.23(b)(1) does not directly conflict with
8 U.S.C. §§ 1229a(c)(6)(A) and (7)(A), the regulation is an arbitrary and
capricious interpretation of the statute. Finally, petitioner argues that the post-
departure bar did not apply to him because he is not presently the subject of
removal proceedings.
Each of these contentions was addressed and expressly rejected in
Rosillo-Puga. In that case, we held that § 1003.23(b)(1) does not contravene
8 U.S.C. §§ 1229a(c)(6)(A) or (7)(A). See Rosillo-Puga, 580 F.3d at 1156-57.
We held that the agency’s regulation is valid under the statute. Id. And we
rejected the notion that the post-departure bar did not apply to the petitioner in
that case because he was not presently “in” removal proceedings. See id. at
1158-59.
Petitioner asserts that his case is factually distinguishable from
Rosillo-Puga and that the Supreme Court’s discussion in Dada v. Mukasey, 128 S.
Ct. 2307, 2317 (2008), “implies that Rosillo-Puga is at least partially incorrect in
its holding.” Pet’r Supp. Brief. at 13. We can, however, discern no factual
distinction between this case and Rosillo-Puga that could make any material
difference to the proper legal analysis and outcome of this petition for review.
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Neither the Supreme Court, nor this court sitting en banc, has overturned Rosillo-
Puga, and “[w]e are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.” In re
Smith, 10 F.3d 723, 724 (10th Cir. 1993).
Separately but relatedly, petitioner argues that due process requires that he
be given a post-departure hearing because his removal in November 2000 was
unlawful. He asserts that he had not actually been convicted of an aggravated
felony, which was the sole basis for his removal. This argument is premised on
the Supreme Court’s decision in Leocal in 2004, which explained that a felony
DUI did not constitute an aggravated felony for removal purposes. See 543 U.S.
at 4-6.
The problem here, again, is that petitioner’s argument is foreclosed by our
precedent. Rosillo-Puga, like the petitioner here, argued that due process
mandated a post-departure hearing because a court had later clarified that his
battery conviction, which was the basis for his removal, was not an aggravated
felony. See Rosillo-Puga, 580 F.3d at 1149, 1160. In rejecting this argument, we
explained:
It is well-established that aliens are entitled to due process in
deportation proceedings. In this context, due process requires that the
alien receive notice of the charges against him, and a fair opportunity
to be heard before an executive or administrative tribunal. Rosillo-Puga
received due process in his deportation proceedings. At the time of his
removal, he had been convicted of a crime that warranted his removal.
He received all appropriate process before the immigration authorities,
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he did not seek relief from the removal order, and he waived his right
to appeal the removal order. He made no attempt to alter the status of
his conviction before he left the country. Now, Rosillo-Puga attempts
to reopen proceedings that ended roughly five years ago, and five years
following his departure. Due process does not require continuous
opportunities to attack executed removal orders years beyond an alien’s
departure from the country. Indeed, there is a strong public interest in
bringing finality to the deportation process.
Id. at 1160 (quotations and citations omitted). We can discern no basis in law to
reach a different result in this case. Under the binding precedent of this court,
petitioner has received all of the due process to which he is entitled.
***
The petition for review is denied. The government’s “Motion to Dismiss
or, in the Alternative, to Transfer Petition for Review” is also denied.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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