Lin v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZI-XING LIN, 
Petitioner, No. 04-73860
v.
 Agency No.
A75-011-071
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2006*
Seattle, Washington
Filed January 5, 2007
Before: Dorothy W. Nelson, Richard A. Paez, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Smith
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
111
LIN v. GONZALES 113
COUNSEL
Karen Jaffe, New York, New York, for the petitioner.
Donald A. Couvillon, Washington, D.C., for the respondent.
OPINION
SMITH, Circuit Judge:
Petitioner is a Chinese national who was lawfully removed
from the United States, re-entered illegally, and then filed an
114 LIN v. GONZALES
untimely motion to reopen his original deportation proceed-
ings. The immigration judge (“IJ”) denied petitioner’s motion,
the Board of Immigration Appeals (“BIA”) affirmed that
denial, and petitioner appealed to this court. We reverse and
remand because (a) 8 C.F.R. § 1003.23(b)(1) cannot be
applied to the facts of this case, (b) no steps were taken by the
Department of Homeland Security (“DHS”) to reinstate peti-
tioner’s prior removal order under 8 C.F.R. § 241.8, and (c)
neither the IJ nor the BIA made any finding concerning
whether petitioner’s motion was eligible for any exception to
late filing under 8 C.F.R. § 1003.23(b)(4).
FACTS AND PRIOR PROCEEDINGS
Petitioner first entered the United States on July 14, 1997,
on a flight from Russia to Anchorage, Alaska. Petitioner and
his two traveling companions (also Chinese) claimed to be
Japanese nationals and carried Japanese passports that had
been stolen in Thailand and fraudulently altered. Petitioner
was placed in removal proceedings before an IJ. After hearing
his testimony, the IJ found petitioner not credible and denied
his petition for asylum and withholding of removal. Addition-
ally, the IJ made an unsubstantiated “special finding” that the
application was “frivolous” and that petitioner was therefore
“barred forever from seeking any type of immigration relief.”
Petitioner did not appeal these determinations and was
removed to China. There is no indication in the record that
any proceedings were pending after petitioner’s removal from
the United States.
On December 24, 1999, petitioner illegally returned to the
United States. Petitioner filed a new application for asylum
which the agency rejected because it had denied his prior asy-
lum application. Despite the rejection of his application, peti-
tioner remained in the United States. On April 7, 2004,
petitioner filed a Motion to Reopen Due to Changed Circum-
stances with his original IJ. U.S. Immigration and Customs
Enforcement (“ICE”) opposed the motion, arguing that under
LIN v. GONZALES 115
8 U.S.C. § 1231(a)(5), an alien who has reentered the United
States illegally after having been removed is “subject to rein-
statement of his prior removal order,” and that the IJ “lacks
jurisdiction to reopen his prior removal order.” Citing no
authority, the IJ found that she lacked jurisdiction to reopen
the case and denied the motion. Petitioner appealed the denial
of his motion to the BIA.
The BIA “adopt[ed] and affirm[ed] the decision of the
Immigration Judge” and dismissed the appeal. The BIA found
that 8 U.S.C. § 1231(a)(5) deprived the IJ of jurisdiction to
reopen the case and that the IJ’s previous finding that peti-
tioner had filed a frivolous application for asylum under INA
§ 208(d)(6) rendered petitioner “permanently ineligible for
any benefits under the Act.” Petitioner appealed to this court.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the affirmance of a denial of a
motion to reopen under 8 U.S.C. § 1252(a)(1).1 The IJ and the
BIA both based their denials of the motion on the ground that
they lacked jurisdiction to consider it. While we review a rul-
ing on the merits of a motion to reopen for abuse of discre-
tion, see INS v. Doherty, 502 U.S. 314, 323-24 (1992), we
review questions of law, including an agency’s determination
of its own jurisdiction, de novo. See Nuru v. Gonzales, 404
F.3d 1207, 1215 (9th Cir. 2005); Molina-Estrada v. INS, 293
F.3d 1089, 1093 (9th Cir. 2002).
1
The denial of a motion to reopen falls within our jurisdiction over final
orders of removal (not issued in absentia) under 8 U.S.C. § 1252(a)(1),
provided that the denial has been separately appealed. See Azarte v. Ash-
croft, 394 F.3d 1278, 1281 (9th Cir. 2005); Sarmadi v. INS, 121 F.3d
1319, 1321-22 (9th Cir. 1997).
116 LIN v. GONZALES
ANALYSIS
A. Departure from the United States
[1] The government’s principal argument on appeal is that
8 C.F.R. § 1003.23(b)(1) precludes an alien who has been
removed from the United States from filing a motion to
reopen those removal proceedings. This is an issue of first
impression in this circuit,2 and it must be evaluated in light of
the well-established canon that ambiguities in deportation
statutes should be construed in favor of the alien. Kwai Fun
Wong v. United States, 373 F.3d 952, 962 (9th Cir. 2004); see
also Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th
Cir. 2002) (citing INS v. St. Cyr, 533 U.S. 289, 320 (2001)).
[2] The relevant provision of 8 C.F.R. § 1003.23(b)(1)
reads:
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. Any departure from the United States, includ-
ing the deportation or removal of a person who is the
subject of exclusion, deportation, or removal pro-
ceedings, occurring after the filing of a motion to
reopen or a motion to reconsider shall constitute a
withdrawal of such motion.
[3] The government argues that under the regulation “a
motion to reopen ‘[can]not be made’ by an alien who was in
proceedings after the alien’s ‘departure from the United
States.’ ” Respondent’s Brief at 11 (alterations in original).
2
This court has, however, addressed the applicability of the parallel reg-
ulation governing motions to reopen filed with the BIA in a similar, but
distinguishable, factual situation. See Singh v. Gonzales, 412 F.3d 1117
(9th Cir. 2005).
LIN v. GONZALES 117
We disagree. The regulation is phrased in the present tense
and so by its terms applies only to a person who departs the
United States while he or she “is the subject of removal . . .
proceedings.” 8 C.F.R. § 1003.23(b)(1) (emphasis added).
Because petitioner’s original removal proceedings were com-
pleted when he was removed to China, he did not remain the
subject of removal proceedings after that time. While the reg-
ulation may have been intended to preclude aliens in petition-
er’s situation from filing motions to reopen their completed
removal proceedings, the language of the regulation does not
unambiguously support this result. Because ambiguity must
be construed in favor of the petitioner, we decline to adopt the
government’s construction of the regulation and cannot affirm
the denial of petitioner’s motion to reopen on this ground.
This holding is consistent with the court’s decisions in
Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) and Kon-
stantinova v. INS, 195 F.3d 528 (9th Cir. 1999). The Singh
court found that 8 C.F.R. § 1003.2(d), the regulation govern-
ing motions to reopen filed with the BIA, rather than an IJ,
did not prevent Singh from filing a motion to reopen when he
withdrew his asylum application, voluntarily departed the
United States, and subsequently had an order of removal
entered against him in absentia. 412 F.3d at 1121. The court
reasoned that because Singh left the United States before
removal proceedings had commenced against him, he was not
a “subject of removal . . . proceedings” when he departed the
United States. Id. Similarly, in Konstantinova, this court
reached the merits of a motion to reopen filed by Bulgarian
nationals who were granted voluntary departure, departed the
United States, and then filed a motion to reopen the prior pro-
ceedings. 195 F.3d at 530.
B. Illegal Reentry After Prior Removal
[4] The IJ and BIA both denied petitioner’s motion to
reopen on the ground that because petitioner was removed
and subsequently reentered illegally, 8 U.S.C. § 1231(a)(5)
118 LIN v. GONZALES
deprived them of jurisdiction to hear the motion.3 The IJ
apparently assumed, and the BIA explicitly found, that the
original deportation order had been “automatically reinstated
by operation of law” upon the petitioner’s illegal reentry into
the United States. This was error. 8 C.F.R. § 241.8 is the
implementing regulation for § 1231(a)(5) and it requires that
before the prior order can be reinstated, the immigration offi-
cer must (1) obtain the prior order related to the alien, (2) con-
firm that the alien under consideration is the same alien who
was previously removed or voluntarily departed, and (3) con-
firm that the alien unlawfully reentered the United States. If
the officer determines that the alien is subject to removal
under 8 C.F.R. § 241.8(a), he or she must provide the alien
with written notice of his or her determination and give the
alien an opportunity to make a statement contesting the deter-
mination. 8 C.F.R. § 241.8(b). Only if the requirements of 8
C.F.R. § 241.8(a) and (b) have been satisfied is the alien
removable under the previous order. 8 C.F.R. § 241.8(c).
Although petitioner admitted in his second application for
asylum that he was previously removed from the United
States and then reentered illegally, the record does not show
that the DHS complied with the balance of 8 C.F.R. § 241.8.
Accordingly, we find that the denial of petitioner’s motion
cannot rest on the IJ’s determination that 8 U.S.C.
§ 1231(a)(5) deprived her of jurisdiction to hear petitioner’s
motion.
C. Timeliness
[5] Lastly, we note that the IJ and BIA made no findings
regarding the timeliness of petitioner’s motion. Under 8
C.F.R. § 1003.23(b)(1), motions to reopen are subject to a
3
Although the IJ did not cite any provision of law as the basis for her
decision, because she indicated that she “agrees with ICE that this Court
has no jurisdiction to reopen this case,” and because ICE cited 8 U.S.C.
§ 1231(a)(5) in its Opposition to Motion to Reopen, we assume the IJ
relied on this provision.
LIN v. GONZALES 119
strict time limit of ninety days following entry of the final
order of removal, subject to narrow exceptions in 8 C.F.R.
§ 1003.23(b)(4). Although this motion to reopen was clearly
untimely, the BIA affirmed the denial of the motion on juris-
dictional grounds and did not address either the timeliness of
the motion or the possible applicability of the exceptions in 8
C.F.R. § 1003.23(b)(4)(i). Because there has been no final
agency determination on the issue of timeliness, we may not
affirm on that basis. See, e.g., INS v. Orlando Ventura, 537
U.S. 12, 16-17 (2002). We therefore remand with instructions
to determine whether the evidence petitioner presented in sup-
port of his untimely motion constitutes evidence of changed
country conditions, and if so, whether this evidence was “ma-
terial and was not available and could not have been discov-
ered or presented at the previous proceeding.” 8 C.F.R.
§ 1003.23(b)(4)(i).
CONCLUSION
Because we have been presented with no lawful basis on
which the denial of petitioner’s motion to reopen may be
affirmed, the denial is REVERSED and petitioner’s case is
REMANDED to the BIA with instructions to remand to the
IJ for further proceedings consistent with this opinion.
PETITION GRANTED and REMANDED