Gaytan-Aragon v. Lynch

13-3717
Gaytan-Aragon v. Lynch
BIA
Montante, IJ
A073 467 405
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of June, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 GILBERTO GAYTAN-ARAGON,
15 Petitioner,
16
17 v. 13-3717
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _______________________________________
23 FOR PETITIONER: Susan N. Burgess, Law Office of
24 Susan N. Burgess, Independence, KY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; David V. Bernal, Assistant
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 Director; Anthony C. Payne, Senior
2 Litigation Counsel, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Gilberto Gaytan-Aragon, a native and citizen
12 of Mexico, seeks review of a September 18, 2013 order of the
13 BIA, affirming the May 3, 2013 decision of an Immigration
14 Judge (“IJ”), which dismissed his motion for sua sponte
15 reopening for lack of jurisdiction. In re Gilberto
16 Gaytan-Aragon, No. A073 467 405 (B.I.A. Sept. 18, 2013),
17 aff’g No. A073 467 405 (Immig. Ct. N.Y. City May 3, 2013).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 We review the BIA’s decision affirming an IJ’s denial
21 of a motion to reopen for abuse of discretion. Iavorski v.
22 INS, 232 F.3d 124, 128 (2d Cir. 2000); Ali v. Gonzales, 448
23 F.3d 515, 517 (2d Cir. 2006) (per curiam). An alien seeking
24 to reopen proceedings is required to file a motion to reopen
25 no later than 90 days after the date on which the final
26 administrative decision was rendered. See 8 U.S.C.
2
1 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). The agency may
2 also reopen proceedings “at any time” under its sua sponte
3 authority. 8 C.F.R. §§ 1003.23(b)(1), 1003.2(a). However,
4 under the departure bar, “[a] motion to reopen or to
5 reconsider shall not be made by or on behalf of a person who
6 is the subject of removal, deportation, or exclusion
7 proceedings subsequent to his or her departure from the
8 United States. Any departure from the United States,
9 including the deportation or removal of a person who is the
10 subject of exclusion, deportation, or removal proceedings,
11 occurring after the filing of a motion to reopen or a motion
12 to reconsider shall constitute a withdrawal of such motion.”
13 8 C.F.R. §§ 1003.23(b)(1), 1003.2(d). We have accorded
14 substantial deference to the BIA’s interpretation that the
15 departure bar is a jurisdictional limitation, which applies
16 to motions for sua sponte reopening. See Xue Yong Zhang v.
17 Holder, 617 F.3d 650, 660 (2d Cir. 2010).
18 Gaytan-Aragon challenges the application of the
19 departure bar to his motion for sua sponte reopening filed
20 with the IJ. He asserts that this Court has approved of the
21 departure bar’s application only to motions for sua sponte
22 reopening filed with the BIA. Although he contends that the
3
1 regulations governing application of the departure bar in
2 the context of motions filed directly with the BIA differ
3 from those governing application in the IJ context, “[t]hese
4 regulations are ‘substantively identical’ in terms of the
5 authority they provide to IJs and the BIA to consider
6 motions to reopen.” Id. at 657 n.5. Compare 8 C.F.R.
7 § 1003.23(b)(1), with 8 C.F.R. § 1003.2(d). His argument is
8 therefore without merit.
9 Gaytan-Aragon also challenges the application of the
10 departure bar because he filed his motion while physically
11 present in the United States. He argues, based on Xue Yong
12 Zhang, that the regulations governing the agency’s sua
13 sponte authority permit the exercise of that power at “any
14 time,” see 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1), and that
15 “the BIA apparently understands the phrase ‘at any time’ to
16 mean ‘at any time that the alien in question is physically
17 present in the United States,’” 617 F.3d at 660.
18 Gaytan-Aragon’s reliance on Xue Yong Zhang, however, is
19 misplaced.
20 In Xue Yong Zhang, we accorded substantial deference to
21 the BIA’s interpretation that the departure bar applied to
22 motions for sua sponte reopening. Id. at 652. Xue Yong
4
1 Zhang, however, involved application of the second prong of
2 the departure bar, under which “[a]ny departure from the
3 United States . . . after the filing of a motion to reopen
4 . . . constitute[s] a withdrawal of such motion.” Id. at
5 659 n.9 (alterations in original, quotations marks omitted).
6 The petitioner in Xue Yong Zhang filed his motion for sua
7 sponte reopening while in the United States but was removed
8 prior to the BIA’s adjudication of his motion. Id. at 652.
9 Although the BIA initially granted Xue Yong Zhang’s motion,
10 it subsequently held that it lacked jurisdiction to do so
11 because he was not physically present in the United States
12 at the time of the adjudication and, thus, his motion had
13 been effectively withdrawn. Id. Because Xue Yong Zhang
14 concerned the withdrawal provision of the departure bar, the
15 petitioner’s physical presence in the United States at the
16 time of the adjudication of the motion to reopen was
17 determinative. Id. at 663.
18 To the contrary, Gaytan-Aragon is not subject to the
19 withdrawal provision of the departure bar; rather, the
20 agency found that it lacked jurisdiction under the first
21 prong of the departure bar because Gaytan-Aragon departed
22 from the United States following the conclusion of his
23 deportation proceedings. See 8 C.F.R. § 1003.23(b)(1).
5
1 Gaytan-Aragon’s unsupported assertion that the departure bar
2 does not apply to motions to reopen filed by illegal
3 reentrants like himself is simply incorrect. See, e.g.,
4 Matter of G-N-C-, 22 I.&N. Dec. 281, 283-84 (B.I.A. 1998)
5 (applying departure bar to motion to reopen filed inside the
6 United States after an illegal reentry); Matter of
7 Yih-Hsiung Wang, 17 I.&N. Dec. 565 (B.I.A. 1980) (same). To
8 find otherwise would create perverse incentives under which
9 an alien who complied with a deportation order would be
10 precluded from requesting sua sponte reopening from outside
11 the United States, whereas an alien who illegally reentered
12 the country after being deported would not.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DENIED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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