Perez Santana v. Holder

United States Court of Appeals
For the First Circuit
No. 12-2270
VLADIMIR PEREZ SANTANA,
Petitioner,
v.
ERIC H. HOLDER, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Lipez, and Kayatta,
Circuit Judges.
Jeffrey B. Rubin and Kathleen M. Gillespie on brief for
petitioner.
Trina Realmuto, with whom Beth Werlin was on brief, for
American Immigration Council, National Immigration Project of the
National Lawyers Guild, and Post-Deportation Human Rights Project,
amici curiae.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Stuart F. Delery, Principal Deputy Assistant
Attorney General, Civil Division, and Colin J. Tucker, Trial
Attorney, Office of Immigration Litigation, were on brief, for
respondent.
September 27, 2013
LIPEZ, Circuit Judge. Born in the Dominican Republic in
1987, Vladimir Perez Santana immigrated to the United States and
became a lawful permanent resident ("LPR") in 1997. In March 2010,
Perez Santana pled guilty in state court to one charge of
possession of a controlled substance with intent to distribute. He
received a one-year probationary sentence.
The Department of Homeland Security ("DHS") placed Perez
Santana into removal proceedings and found him both removable and
ineligible for discretionary relief. After the agency ordered his
removal, Perez Santana sought vacatur of his criminal conviction on
constitutional grounds. Successful in this effort, he then filed
a motion to reopen his proceedings before the Board of Immigration
Appeals ("BIA"), seeking vacatur of his order of removal as well.
By the time he sought reopening, however, Perez Santana had already
been removed to the Dominican Republic. The BIA denied his motion,
invoking a regulation known as the "post-departure bar," which
precludes a noncitizen from filing a motion to reopen "subsequent
to his or her departure from the United States." 8 C.F.R.
§ 1003.2(d).
Perez Santana petitions for our review, contending, inter
alia, that the post-departure bar conflicts with the clear language
of the immigration statute, which grants "[a]n alien" the right to
file a single motion to reopen. 8 U.S.C. § 1229a(c)(7). We agree.
The post-departure bar cannot prevent a noncitizen from invoking
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his statutory right to file a motion to reopen. We therefore grant
Perez Santana's petition.
I.
The facts of this case are straightforward. Perez
Santana was born in the Dominican Republic in 1987. When he was
nine years old, he immigrated to the United States with his family
as an LPR. On March 9, 2010, Perez Santana pleaded guilty in
Massachusetts state court to one charge of possession with intent
to distribute a class D substance, namely, marijuana. He was
sentenced to one year of probation.
On September 7, 2010, Perez Santana was issued a notice
to appear for removal proceedings, which charged that his criminal
conviction was a drug trafficking aggravated felony under the
immigration statute. See 8 U.S.C. §§ 1101(a)(43)(B),
1227(a)(2)(A)(iii). Three months later, the immigration judge
("IJ") found Perez Santana removable on the basis of his
conviction, and also determined that because the conviction
constituted an aggravated felony, he was ineligible for relief from
removal. See 8 U.S.C. § 1229b(a)(3) (requiring that applicant for
cancellation of removal for LPRs must not be convicted of "any
aggravated felony"). Perez Santana sought review before the BIA,
which applied its prior precedent on this subject and dismissed his
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appeal.1 See Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702
(BIA 2012). The BIA's order was entered, and Perez Santana's
removal became final on April 16, 2012.
On May 23, 2012, Perez Santana filed a motion to withdraw
his plea in the Massachusetts state courts. He contended that
under the Supreme Court's then-recent decision in Padilla v.
Kentucky, 559 U.S. 356 (2010), his plea was taken in violation of
his Sixth Amendment right to the effective assistance of counsel
because he was not informed of the potential immigration
consequences of his conviction.
While Perez Santana sought vacatur of his criminal
conviction, he also sought to stay his removal before the DHS.
Sometime in May 2012, DHS denied his request for a stay and
deported him to the Dominican Republic on May 29, 2012.2
On July 11, 2012, after initially denying Perez Santana's
motion to withdraw his plea, the Massachusetts court reconsidered
1
Although the validity of the agency's finding of
removability is not before us, it is noteworthy that this
determination relied on our opinion in Julce v. Mukasey, 530 F.3d
30 (1st Cir. 2008), which held that a Massachusetts conviction for
possession of marijuana with intent to distribute was categorically
a drug trafficking aggravated felony. The Supreme Court abrogated
Julce in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), holding that
an analogous Georgia conviction for possession with intent to
distribute was not a drug trafficking aggravated felony. Id. at
1693-94.
2
Perez Santana has not identified documentation in the record
confirming that he sought and was denied a stay of removal, instead
relying on assertions from his briefs to the agency. The
government does not dispute this fact, however.
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and granted his motion. Perez Santana immediately filed a motion
to reopen his removal proceedings before the BIA, eighty-eight days
after his removal became final. He argued that because his
criminal conviction was now vacated, it could no longer serve as a
ground for his removal.
On September 24, 2012, the BIA returned Perez Santana's
motion to the IJ without further action, concluding that the post-
departure bar prevented him from filing a motion to reopen once he
departed the United States. See 8 C.F.R. § 1003.2(d); see also id.§ 1003.23(b)(1). The BIA also relied on its prior opinion in
Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008), which
held that the post-departure bar divested it of jurisdiction to
consider a motion to reopen filed by a noncitizen subsequent to his
departure from the United States.
Perez Santana timely sought review before this court of
the denial of his motion to reopen.3
II.
We review the BIA's denial of a motion to reopen for
abuse of discretion. Bead v. Holder, 703 F.3d 591, 593 (1st Cir.
2013). Under this standard, the petitioner must demonstrate that
"'the BIA committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way.'" Id. (quoting Raza v.
3
Petitioner ceded his oral argument time to counsel for amici
curiae, whom we thank for their able presentation of the arguments
we address today.
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Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)). Perez Santana's
primary contention is that the agency committed a legal error when
it concluded that the post-departure bar divested it of the ability
to consider his motion to reopen. Our review of legal questions is
de novo, "with deference given 'to the BIA's reasonable
interpretations of statutes and regulations falling within its
purview.'" Aponte v. Holder, 683 F.3d 6, 10 (1st Cir. 2012)
(quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir. 2011)).
A. The Motion to Reopen Statute and the Post-Departure Bar
"The motion to reopen is an 'important safeguard'
intended 'to ensure a proper and lawful disposition' of immigration
proceedings." Kucana v. Holder, 558 U.S. 233, 242 (2010) (quoting
Dada v. Mukasey, 554 U.S. 1, 18 (2008)). The procedure is codified
in a statute, 8 U.S.C. § 1229a(c)(7)(A), which provides that "[a]n
alien may file one motion to reopen proceedings." The statute
expressly prescribes other requirements, including that the motion
"state the new facts that will be proven at a hearing to be held if
the motion is granted," id. § 1229a(c)(7)(B), that the motion "be
supported by affidavits or other evidentiary material," id., and
that the motion "be filed within 90 days of the date of entry of a
final administrative order of removal," id. § 1229a(c)(7)(C)(i).
Importantly, the statute does not denominate a physical presence or
geographic limitation in its general provisions.
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The statute carves out certain exceptions to these
general requirements. Applicants for asylum, for example, are
exempt from the ninety-day time limit if their application is based
on evidence of changed country conditions in the country to which
they are to be removed, and "if such evidence is material and was
not available and would not have been [previously] discovered or
presented." Id. § 1229a(c)(7)(C)(ii). There is also a special
rule for battered spouses, which extends the filing deadline to one
year and waives the numerical limitation. Id. §§ 1229a(c)(7)(A),
1229a(c)(7)(C)(iv). In contrast to the statute's general
provisions, the special rule for battered spouses requires the
noncitizen to be "physically present in the United States at the
time of filing the motion." Id. § 1229a(c)(7)(C)(iv)(IV).
In its current form, the post-departure bar comprises two
separate regulations, one of which applies to motions filed before
the BIA and the other to motions filed before the IJ. See 8 C.F.R.
§ 1003.2(d) (BIA); id. § 1003.23(b)(1) (IJ). Though codified in
different sections, the regulations contain the same language:
A motion to reopen . . . 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, including the deportation or removal
of a person who is the subject of exclusion,
deportation, or removal proceedings, occurring
after the filing of a motion to reopen . . .
shall constitute a withdrawal of such motion.
8 C.F.R. § 1003.2(d); see also id. § 1003.23(b)(1).
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The BIA has published a precedential opinion upholding
the post-departure bar's validity. In Matter of Armendarez-Mendez,
the BIA construed the post-departure bar as a limitation on its own
jurisdiction and decided that the agency therefore lacked the power
to entertain motions to reopen filed by noncitizens who had
departed the United States. 24 I. & N. Dec. at 648-49, 660.
B. Pena-Muriel and Subsequent Litigation Concerning the Post-
Departure Bar
This case is not the first time we have addressed the
validity of the post-departure bar. In Pena-Muriel v. Gonzales,
489 F.3d 438 (1st Cir. 2007), the petitioner asserted that the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA") abrogated the regulation we now know as the post-
departure bar. This is true, the petitioner asserted, because
IIRIRA repealed statutory provision 8 U.S.C. § 1105a(c) (1994)
(repealed by Pub.L. No. 104–208, Title III, § 306(b), 110 Stat.
3009, 3009-612). The repealed statute precluded a federal court
from reviewing "[a]n order of deportation . . . if the alien . . .
has departed from the United States after the issuance of the
order." 8 U.S.C. § 1105a(c) (1994).
Pena-Muriel contended that the post-departure bar was
"inextricably linked" with this judicial review provision, and that
its deletion "signaled [Congress's] intent" that the government
should cease enforcing the post-departure regulation as well.
Pena-Muriel, 489 F.3d at 441. We disagreed, explaining that "[t]he
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Attorney General's authority to prohibit consideration of motions
to reopen from aliens who have departed the United States did not
originally depend upon the statutory language in § 1105a(c)." Id.
Thus, that provision's repeal did not, by extension, abrogate the
post-departure bar. Id.
Pena-Muriel petitioned for rehearing en banc, arguing
that the text of the motion to reopen statute unambiguously gave a
noncitizen the right to file a motion to reopen regardless of the
noncitizen's geographic location at time of filing. See 8 U.S.C.
§ 1229a(c)(7)(A). Pena-Muriel's contention, raised for the first
time via his petition, relied on a statutory provision separate
from the repealed judicial review provision he invoked in the
merits briefing. See Part II.C.2, infra. In our order denying the
petition, we observed that "[w]hen this case was presented to the
panel, petitioner [had] presented only one statutory argument."
Pena-Muriel v. Gonzales, 510 F.3d 350, 350 (1st Cir. 2007). We
added that, "[n]ot having been asked to do so, we did not decide"
whether the post-departure bar conflicted with the motion to reopen
statute, and we declined to resolve the question on rehearing. Id.As a result, the parties agree that our opinion in Pena-Muriel does
not control the outcome of this case.
Since we decided Pena-Muriel, the validity of the post-
departure bar has been the subject of substantial litigation in the
federal courts of appeals. Six of our sister circuits have held
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that the post-departure bar conflicts with the clear language of
the motion to reopen statute. See Garcia-Carias v. Holder, 697
F.3d 257, 264 (5th Cir. 2012); Lin v. U.S. Att'y Gen., 681 F.3d
1236, 1241 (11th Cir. 2012); Contreras-Bocanegra v. Holder, 678
F.3d 811, 819 (10th Cir. 2012) (en banc) (unanimously overturning
prior panel decision); Prestol Espinal v. Att'y Gen., 653 F.3d 213,
217–18 (3d Cir. 2011); Reyes-Torres v. Holder, 645 F.3d 1073,
1076–77 (9th Cir. 2011); William v. Gonzales, 499 F.3d 329, 332
(4th Cir. 2007). Another three have struck down the regulation as
an impermissible contraction of the agency's jurisdiction, holding
that the agency cannot disclaim authority that Congress has
expressly conferred upon it. See Luna v. Holder, 637 F.3d 85, 100
(2d Cir. 2011); Pruidze v. Holder, 632 F.3d 234, 239 (6th Cir.
2011); Marin-Rodriguez v. Holder, 612 F.3d 591, 595 (7th Cir.
2010).
As matters currently stand, the rule in every circuit to
have addressed the arguments petitioner raises here is that the
post-departure bar either conflicts with the motion to reopen
statute, or cannot be justified as a jurisdictional limitation.
C. The Chevron Analysis
Against that backdrop, we now address whether the post-
departure bar is a valid exercise of the discretion conferred upon
the agency by the immigration statute. Resolution of this question
requires that we apply the framework set forth in Chevron, U.S.A.,
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Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). The Chevron inquiry proceeds in two steps. First, we look
to the statute to ascertain whether "Congress has directly spoken
to the precise question at issue." Id. at 842. If the statute is
clear in its meaning, we must "give effect to the unambiguously
expressed intent of Congress." Id. at 842-43.
The analysis begins with the statute's language. "In
determining whether a statute exhibits Chevron-type ambiguity, . .
. courts look at both the most natural reading of the language and
the consistency of the 'interpretive clues' Congress provided."
Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005) (quoting Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586 (2004)). We
may also look to legislative history "to see if any 'serious
question . . . even about purely textual ambiguity' is left." Id.
at 23 (quoting Gen. Dynamics Land Sys., 540 U.S. at 600).
Second, "[i]f, after applying these interpretive rules,
we conclude that the statute is ambiguous," we move to the next
step of the analysis. Saysana v. Gillen, 590 F.3d 7, 13 (1st Cir.
2009). Importantly, we take this step only "when the devices of
judicial construction have been tried and found to yield no clear
sense of congressional intent." Gen. Dynamics Land Sys., 540 U.S.
at 600. At Chevron's second step, the inquiry focuses on "whether
the agency's answer is based on a permissible construction of the
statute." Chevron, 467 U.S. at 843. If so, we "defer to an
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agency's interpretive regulation unless it is 'arbitrary,
capricious, or manifestly contrary to the statute.'" Saysana, 590
F.3d at 13 (quoting Chevron, 467 U.S. at 844).
Perez Santana contends that the plain language of the
motion to reopen statute forecloses the agency from adding a
geographic limitation to his ability to seek reopening of his
proceedings. The government replies that the lack of an express
geographic restraint should be construed as silence about the
location of the noncitizen at time of filing. This silence, the
government says, results in a statutory "gap" or ambiguity that the
government is permitted to fill with the post-departure bar.
1. The Statutory Text
Looking first to the statutory text, the motion to reopen
statute states that "[a]n alien may file one motion to reopen
proceedings." 8 U.S.C. § 1229a(c)(7)(A). The immigration statute
in turn defines "alien" as "any person not a citizen or national of
the United States." 8 U.S.C. § 1101(a)(3). Thus, the provision
unambiguously confers upon "an alien" the authority and the right
to file a motion to reopen, in language that admits of no
exceptions. See Dada, 554 U.S. 1, 15 (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.'" (quoting 8
U.S.C. § 1229a(c)(7)(A))). The relevant language nowhere
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prescribes, or even suggests, a geographic restriction on an "alien
[who] may file" the motion.4
The statute does describe other limitations and
requirements on the right to file a motion to reopen, including
numeric limitations, 8 U.S.C. § 1229a(c)(7)(A), evidentiary
requirements, id. § 1229a(c)(7)(B), and time deadlines, id. §
1229a(c)(7)(C)(i). Once again, these particular exceptions do not
contain restrictions based on geography or the location of the
noncitizen at the time of filing. The absence of such a
limitation, despite the explicit enumeration of others, serves as
a strong indication that Congress imposed the restrictions that it
deemed important and declined to impose others. Cf. United States
v. Johnson, 529 U.S. 53, 58 (2000) ("When Congress provides
exceptions in a statute, it does not follow that courts have
authority to create others. The proper inference . . . is that
4
The government posits that relying on the words "an alien"
would permit all sorts of noncitizens to file motions to reopen
"without regard to any other circumstance or condition," such as
"aliens who prevail in immigration proceedings, aliens who have
never been in immigration proceedings, and aliens who have never
even been in the United States." This attempt to conjure a parade
of horribles is a chimera. For one, the motion to reopen statute
is included in a set of provisions that prescribe the procedural
requirements of removal proceedings. See 8 U.S.C. §§ 1229a(a)-(b).
When read in context, the reopening statute clearly refers to
noncitizens who are or have been the subject of such proceedings,
not random noncitizens. We also question why noncitizens who have
won their proceedings, or those who have never been subject to
removal in the first place, would have an interest in filing
motions to reopen.
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Congress considered the issue of exceptions and, in the end,
limited the statute to the ones set forth.").
Moreover, the special rule for battered spouses does
contain an explicit geographic limitation. That subsection, among
other requirements, expressly requires that "the alien is
physically present in the United States at the time of filing the
motion." 8 U.S.C. § 1229a(c)(7)(C)(iv)(IV). This provision shows
that Congress knew how to impose a geographic restriction when it
wanted to, and further suggests that the statute's general
provisions do not contain such a limitation. See Lin, 681 F.3d at
1240 ("[W]e can draw the negative inference that 'Congress knew how
to include a requirement of physical presence when it wished to do
so,' and intentionally chose not to require such presence for a
motion to reopen, except in the specified circumstances." (quoting
William, 499 F.3d at 333)).
The government's arguments amount to nothing less than a
request to write words into the statute that are not there.
Essentially, the contention is that we should revise the text of 8
U.S.C. § 1229a(c)(7)(A) to say that "[a]n alien may file one motion
to reopen proceedings under this section, excepting other
limitations that the Attorney General may prescribe." The
consequence of the government's arguments is not limited to the
post-departure bar. Under its theory, the government possesses the
discretion to impose other substantive limitations on a
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noncitizen's right to file a motion to reopen that lack any
foundation in the statutory language. We decline to adopt such a
construction.
2. The Regulation's History as the Source of the
Statute's Ambiguity
The government's primary defense of the regulation does
not focus on the statutory text. Instead, the government
constructs a narrative of the post-departure bar's long history and
contends that, when read in light of this history, the motion to
reopen statute is merely silent, and thus ambiguous, as to
geographic restrictions.5
a. The History of the Motion to Reopen Proceeding
and the Post-Departure Bar
The proceeding we now know as the motion to reopen
appeared as a form of relief in early twentieth century cases. See,
e.g., Ex Parte Chan Shee, 236 F. 579 (N.D. Cal. 1916). In 1941, the
Attorney General (through the Immigration and Naturalization
Service), included it in the federal regulations. See New
Regulations Governing the Arrest and Deportation of Aliens, 6 Fed.
Reg. 68, 71-72 (Jan. 4, 1941). A motion to reopen was treated "'as
5
The government cites language from Pena-Muriel that
characterized Congress as "remain[ing] silent regarding the long-
standing regulatory bar imposed by [the post-departure
regulation]." 489 F.3d at 442. As we stated earlier in the
opinion, however,"[t]he parties point[ed] to no statutory language
that explicitly addresses the issue" in Pena-Muriel. Id. at 441.
Any comment as to Congressional "silence" we made in our prior
opinion was addressed only to the arguments before us at the time.
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a matter for the exercise of [the government's] discretion,'" and
"judicial interference was deemed unwarranted." Dada, 554 U.S. at
12-13 (quoting Wong Shong Been v. Proctor, 79 F.2d 881, 883 (9th
Cir. 1935)). For a long time, neither the statute nor the Attorney
General's regulations prescribed time limits on the filing of the
motion. Id. at 13.
In 1990, Congress became concerned that noncitizens were
abusing the procedure by filing motion after motion in order to
prolong their time in the United States. Id. The legislature
therefore directed the Attorney General to issue regulations
limiting the time period for the filing of motions to reopen, as
well as restrictions on the number of motions that could be filed.
Id. Although the Attorney General investigated the issue and found
little evidence of abuse, the Department of Justice issued a
regulation imposing new time limits and restrictions on filings.
Id. (citing Executive Office for Immigration Review; Motions and
Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901,
18905 (1996)). This new regulation imposed a ninety-day time
limit, and restricted noncitizens to the filing of a single motion.
Id.In 1996, Congress passed IIRIRA, which altered numerous
aspects of the immigration statute. One of these changes was the
codification of the motion to reopen statute. Id. at 14. In doing
so, "Congress adopted the recommendations of the DOJ with respect
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to numerical and time limits," id., and clarified the procedure's
evidentiary requirements, see 8 U.S.C. § 1229a(c)(7)(B). The
amendment to the statute did not similarly adopt the post-departure
bar.
In light of the history of Congress's interventions in
this field, the government contends that the "emphasis" of IIRIRA's
codification of the motion to reopen statute was the time and
number limitations enacted by the Attorney General via the 1990
regulations. According to this line of reasoning, the statute is
merely "silent" regarding the applicability of the post-departure
bar, permitting the executive branch to "fill the gap" by
prescribing geographic limitations on "a[n] alien['s]" statutory
right to file a motion to reopen. In other words, the government
says that adopting petitioner's argument would require us to find
that the post-departure bar was "impliedly repealed" by IIRIRA,
notwithstanding the long history of the regulation and the lack of
any express statutory repeal.
b. Analysis
The government's interpretive approach is a peculiar way
to construe a statute. We have repeatedly observed that the
Chevron analysis begins with the statute's words. See, e.g.,
Saysana, 590 F.3d at 13; Succar, 394 F.3d at 22-23. Starting
instead with an exposition of the legislative and regulatory
history is inappropriate in this case. Although history can
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illuminate ambiguous language in some circumstances, relying so
heavily on extra-statutory sources to read silence or ambiguity
into seemingly clear text runs counter to well-settled modes of
interpretation.
The government's proposed methodology also carries
certain dangers. As the Third Circuit has pointed out, this method
"manufactures an ambiguity from Congress' failure to specifically
foreclose each exception that could possibly be conjured or
imagined. That approach would create an 'ambiguity' in almost all
statutes, necessitating deference to nearly all agency
determinations." Prestol Espinal, 653 F.3d at 220.
Moreover, the government would place upon Congress, when
enacting a new statute against a background regulatory scheme, the
burden of addressing each and every regulation that existed before
and expressly stating whether it survives the change in the
statute. That argument is untenable. As the Tenth Circuit
explained, "[t]o require an express repeal of a discretionary
regulation in this context would upend the fundamental principle
that regulations should interpret statutes and not the other way
around." Contreras-Bocanegra v. Holder, 678 F.3d 811, 818 (10th
Cir. 2012). Instead, "when faced with [] a legislative overhaul,
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agencies should recalibrate their regulations to ensure they
maintain a statutory basis."6 Id.To be sure, the Supreme Court has sometimes required
clearer statements of Congressional intent depending on the
circumstances. To that end, the government relies heavily on
Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986),
for the proposition that "when Congress revisits a statute giving
rise to a longstanding administrative interpretation without
pertinent change, congressional failure to revise or repeal the
agency's interpretation is persuasive evidence that the
interpretation is the one intended by Congress." Id. at 846(citation omitted) (internal quotation marks omitted).
Leaving aside any concerns we may have about the reach of
this language, the principle articulated in Schor does not apply to
this case. Until Congress codified the motion to reopen, the
proceeding was a regulatory creation, rather than a statutory one.
In codifying the right, the legislature "transform[ed] the motion
to reopen from a regulatory procedure to a statutory form of relief
available to the alien." Dada, 554 U.S. at 14. This
6
The government may be in the process of reconsidering its
position, however. In response to a petition for rulemaking, the
Attorney General has announced "plans to initiate a separate
rulemaking proceeding to address the regulatory provision known as
the 'departure bar.'" 77 Fed. Reg. 59567, 59568 (Sept. 28, 2012).
The status of these proceedings is unclear and their outcome is
uncertain. Thus, neither the parties nor amici assert that these
proceedings moot this petition.
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transformation took a significant degree of discretion out of the
agency's hands and vested a statutory right in the noncitizen. See
Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010) ("Congress
amended the Immigration and Nationality Act [] by, among other
things, granting aliens subject to a removal order the right to
file one motion to reopen."); cf. Pruidze, 632 F.3d at 237-38(characterizing statute as an "empowering, not a divesting,
provision, as it grants the Board authority to entertain a motion
to reopen"). And Congress, by elevating the motion to reopen to a
statutory right and carefully delineating its contours, instituted
a "pertinent change" to any regulatory roadblock to the exercise of
this newly-created right. Cf. Prestol Espinal, 653 F.3d at 222 n.9
("Congress' nuanced consideration of which limitations and
regulations to codify offers stronger evidence of Congress' intent
than does Congress' alleged 'silence' with respect to the
pre-existing post-departure regulation."). In other words, the
statutory changes are inconsistent with the notion that Congress
simply intended to stay silent regarding so substantial a
limitation on the motion to reopen proceeding as the post-departure
bar.
This is all the more true given the clarity of the
statutory language. See id. ("'[W]here the law is plain,
subsequent reenactment does not constitute an adoption of the
previous administrative construction.'" (quoting Brown v. Gardner,
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513 U.S. 115, 121 (1994))); see also Brown, 513 U.S. at 121("[C]ongressional silence lacks persuasive significance,
particularly where administrative regulations are inconsistent with
the controlling statute." (citations omitted) (internal quotation
marks omitted)). Here, Congress's intent is manifest, and we
decline to inject ambiguity into words that do not allow it.
Indeed, the facts of Perez Santana's own case highlight
the folly that results from the government's attempts to conjure
ambiguity from the statute's plain meaning and coherent structure.
As noted, the motion to reopen statute allows the filing of a
single motion to reopen within ninety days after the final order of
removal. 8 U.S.C. § 1229a(c)(7)(C). Not coincidentally, IIRIRA
added a provision that "requires the Attorney General to effectuate
physical removal of petitioners subject to a final order of removal
within ninety days of the order." Coyt, 593 F.3d at 907 (citing 8
U.S.C. § 1231(a)(1)(A)). The post-departure bar places those
statutory provisions in tension with one another by demanding the
removal of noncitizens on or before the ninety-day clock on their
ability to seek reopening has run. See Contreras-Bocanegra, 678
F.3d at 817 ("If we were to uphold the regulation, the Department
of Homeland Security would be permitted . . . to unilaterally cut
short the congressionally mandated filing period in almost every
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case."). If the post-departure regulation no longer bars the
consideration of a motion to reopen, this tension disappears.7
As the Supreme Court has admonished, we should not
"adopt[] a construction of [the statute] which would, with respect
to an entire class of aliens, completely nullify a procedure so
intrinsic a part of the legislative scheme." Dada, 554 U.S. at 18-
19 (second alteration in original) (quoting Costello v. INS, 376
U.S. 120 127-28 (1964)). Here, Perez Santana's order of removal
became final on April 16, 2012, when the BIA dismissed his direct
appeal. Thereafter, he diligently pursued post-conviction relief
before the Massachusetts courts. A mere two days after obtaining
vacatur of his plea, he sought reopening before the BIA and
asserted that the conviction that served as the basis of his
removal had been deemed unconstitutional. This motion was filed
eighty-eight days after his order of removal became final, and two
days before the ninety-day deadline to seek reopening.
7
In Pena-Muriel, the government similarly relied on Schor to
argue that Congress's "silence" as respects the post-departure bar
should be construed as implicit endorsement of the regulation. 489
F.3d at 442-43. We addressed this contention in the course of
analyzing the reasonableness of the government's interpretation
under the second step of Chevron. While acknowledging that Schor
provided some support for the agency's exercise of discretion, we
cautioned that the "[t]he government's insistence that the
Attorney General's interpretation was the one intended by Congress
may be overreaching." Id. at 443. Now that we have had a full
opportunity to view the regulation in light of the overall
statutory scheme, we confirm that the government's statutory
argument was indeed incorrect.
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In other words, Perez Santana did everything right — he
assiduously sought and obtained what relief he could before the
state courts, and timely requested that his proceedings be
reopened. Unfortunately, his diligence was rendered useless due to
the government's exercise of its wholly discretionary authority to
remove him from the United States. More fundamentally, that
unilateral action precluded him from vindicating the right Congress
granted him. See Reyes-Torres, 645 F.3d at 1077 (observing that
petitioner had been "forcibly removed seven days after the final
order of removal was entered," and rejecting contention that
government "ha[s] the power to unilaterally reduce the time in
which Reyes–Torres could have filed his motion to reopen from the
statutorily mandated ninety days to seven days").
Recognizing the peculiarity of its position, the
government suggests that a noncitizen can apply to the BIA for a
stay of removal, which would theoretically allow the noncitizen
enough time to seek reopening. Yet the government characterizes
the BIA's ability to grant or deny a stay as discretionary. If
that is true, then conditioning a statutory right on the
government's grace may be a less improper deviation from the
statute, but it is an improper one nonetheless. See Contreras-
Bocanegra, 678 F.3d at 819 ("[W]e will not condition an absolute
statutory right on the vagaries of administrative discretion.").
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Once again, the facts of Perez Santana's case are
illustrative. Hoping to stave off removal until the state courts
resolved his motion to vacate his criminal conviction, he
unsuccessfully asked DHS to stay its hand.8 The theoretical
possibility of delaying his removal was certainly of little aid to
Perez Santana, who was summarily shipped off to the Dominican
Republic before he could put his arguments before the BIA. Here,
too, Perez Santana did what the agency recommended and allowed, to
no avail. These facts underscore the error in the government's
position, which would preclude Perez Santana from invoking an
"intrinsic [] part of the legislative scheme." Dada, 554 U.S. at
19.9
8
Stays of removal may be sought from the IJs, the BIA, or
DHS. See 8 C.F.R. §§ 1003.2(f), 1003.23(b)(1)(v).
9
Perez Santana raises an alternative argument, claiming that
the post-departure bar constitutes an impermissible contraction of
the agency's jurisdiction. This argument focuses on Matter of
Armendarez-Mendez, 24 I. & N. Dec. 646. There, the BIA construed
the post-departure bar as a limitation on the jurisdiction
conferred upon it by the Attorney General and held that "[r]emoved
aliens have, by virtue of their departure, literally passed beyond
our aid." Id. at 656. Perez Santana responds that the agency
cannot contract the jurisdiction conferred upon it by Congress,
relying on Union Pacific Railroad v. Board of Locomotive Engineers,
558 U.S. 67, 81-82 (2009).
With our resolution of Perez Santana's statutory argument,
there is no need to address the agency's view of its
"jurisdiction." But we share the intuition of several of our
sister circuits that the statutory and so-called jurisdictional
"inquiries may not be altogether separate." Contreras-Bocanegra,
678 F.3d at 816 (citing Prestol Espinal, 653 F.3d at 218 n.4).
Moreover, the Supreme Court's recent opinion in City of Arlington
v. F.C.C., 133 S. Ct. 1863 (2013) casts serious doubt on whether
Perez Santana's arguments are truly distinguishable. See id. at
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In sum, "[t]he government's argument is undermined by the
text and structure of the statute as well as related provisions" of
the statutory scheme. Taing v. Napolitano, 567 F.3d 19, 26 (1st
Cir. 2009). Given our conclusion that the plain meaning of the
statute controls, we need not address the reasonableness of the
regulation under the second step of Chevron.
D. The Limitations of Today's Holding
The government asks that if we hold that the post-
departure bar conflicts with the motion to reopen statute, we limit
such a holding to permit only timely, first motions to reopen filed
by noncitizens who have departed the United States. The government
observes that Perez Santana's arguments "depend on the premise that
[8 U.S.C. § 1229a(c)(7)] confers a statutory right to seek
reopening," and argues that "such a right exists only insofar as an
applicant complies with the statute's requirements for filing a
motion to reopen." Thus, the government suggests, the post-
departure bar remains validly applicable to motions filed after
ninety days, 8 U.S.C. § 1229a(c)(7)(C)(i), or second or subsequent
motions, id. § 1229a(c)(7)(A). Because such motions fall outside
the statute, the argument goes, they must be construed as an appeal
to the agency's sua sponte and extra-statutory ability to reopen
proceedings, which is wholly a creature of agency discretion.
1868 ("[T]he distinction between 'jurisdictional' and
'nonjurisdictional' interpretations is a mirage.").
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Because the government's arguments have no effect on the
outcome of this case, we decline to address them in this opinion.10
Here, the parties do not dispute that Perez Santana filed his
motion within ninety days, that this is his first motion, and that
he seeks to avail himself of his statutory right to seek reopening.
Accordingly, Perez Santana's appeal may be resolved by our holding
that the post-departure bar cannot be used to abrogate a
noncitizen's statutory right to file a motion to reopen. We need
say no more at this juncture.11
III.
For the reasons stated, we grant the petition for review,
vacate the order of the BIA, and remand for further proceedings
consistent with this opinion.
So ordered.
10
The government raises a similar argument in this appeal's
companion case, Bolieiro v. Holder, No. 12-1807, slip op. at 10-11
(1st Cir. Sept. 27, 2013). We decline to address it in that
opinion as well, for somewhat different reasons.
11
We express no view on Perez Santana's reliance on Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007).
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