Rafael Montelongo-Castillo v. U.S. Attorney General ( 2013 )

Case: 12-14163 Date Filed: 09/03/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14163
Non-Argument Calendar
________________________
Agency No. A070-607-107
RAFAEL MONTELONGO-CASTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 3, 2013)
Before BARKETT, MARCUS, Circuit Judges, and HUCK, * District Judge.
PER CURIAM:
*
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
Case: 12-14163 Date Filed: 09/03/2013 Page: 2 of 3
Rafael Montelongo-Castillo (“Montelongo”) seeks review of an order by the
Board of Immigration Appeals (“BIA”) dismissing his motion to reopen
deportation proceedings. After review of the record, we affirm. 1
Montelongo, a native and citizen of Mexico, was ordered deported from the
United States in 1994, prior to the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub .L. No. 104-208, 110
Stat. 3009. Montelongo reentered the United States without inspection in 1997,
and in August 2012, pled guilty to illegal reentry in violation of 8 U.S.C. §§
1325(a) and 1326(b)(2). In January 2012, he filed a motion to reopen his
deportation proceedings. The Immigration Judge (“IJ”) denied the motion, holding
that she lacked jurisdiction to entertain the motion pursuant to the “departure bar”
regulation, which prevents an IJ or the BIA from considering a motion to reopen
filed by a person who has departed the United States, 8 C.F.R. §§ 1003.23(b)(1),
1003.2(d). The BIA affirmed the IJ’s denial. Montelongo filed a second motion to
reopen, requesting that the BIA reverse the denial based on our decision in Lin v.
U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012), in which we held that the
administratively-created departure bar impermissibly conflicted with the statutory
right to file a motion to reopen removal proceedings codified in IIRIRA. The BIA
1
We review the denial of a motion to reopen for abuse of discretion. Ali v. U.S. Att’y
Gen., 443 F.3d 804, 808 (11th Cir. 2006). However, questions of law are reviewed de novo.
Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1233 n.3 (11th Cir. 2012).
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denied the motion, concluding that Lin did not apply to Montelongo’s case because
he was seeking to reopen pre-IIRIRA deportation proceedings, not removal
proceedings.
“The ‘general rule’ is that the 1996 amendments do not apply to aliens who
are in deportation proceedings prior to April 1, 1997.” Cunningham v. U.S. Att’y
Gen., 335 F.3d 1262, 1266 (11th Cir. 2003) (citing IIRIRA § 309(c)(1)(B)).
IIRIRA explicitly mandates that “[deportation] proceedings (including judicial
review thereof) shall continue to be conducted without regard to such
amendments.” IIRIRA § 309(c)(1)(B). Because Montelongo’s deportation
proceedings concluded in 1994, his case is governed by the pre-1996 Immigration
and Nationality Act, which did not include a statutory right to file a motion to
reopen. 2 Consequently, our decision in Lin, which was based exclusively on the
statutory text of IIRIRA and did not posit any independent right to file a motion to
reopen, is also inapplicable to Montelongo’s case. Accordingly, because
Montelongo left the United States, the BIA correctly determined that it lacked
jurisdiction to consider his motion to reopen pursuant to the departure bar.
AFFIRMED.
2
The BIA was authorized by administrative regulations from its outset in 1940 to reopen
closed cases. See Lin, 681 F.3d at 1238-39; 8 C.F.R. § 90.10 (1940). However, this authority
was discretionary. No pre-1996 regulations or statutes gave aliens a right to file a motion to
reopen.
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