Jaime Balerio Rubalcaba v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME BALERIO RUBALCABA, No. 17-70845
Petitioner,
Agency No.
v. A074-364-452
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2021
Pasadena, California
Filed June 2, 2021
Before: Danny J. Boggs, * Milan D. Smith, Jr., and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 BALERIO RUBALCABA V. GARLAND
SUMMARY **
Immigration
The panel granted Jaime Balerio Rubalcaba’s petition for
review of a decision of the Board of Immigration Appeals,
vacated the BIA’s decision, and remanded, holding that the
“departure bar” provision in 8 C.F.R. § 1003.23(b)(1) does
not apply in the context of sua sponte reopening.
Section 1003.23(b)(1) allows an immigration judge
(“IJ”) to reopen a case on his or her own motion—sua sponte
reopening—or pursuant to a motion to reopen filed by either
party. At all times relevant to this case, the provision of
8 C.F.R. § 1003.23 known as the “departure bar” provided:
“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.”
Rubalcaba was removed from the United States in 1995.
In 2016, after his subsequent return, he requested that an IJ
reopen his case sua sponte to allow him to apply for
adjustment of status. The BIA relied exclusively on the
departure bar in affirming the IJ’s denial of sua sponte
reopening.
In the published decision of Matter of Armendarez-
Mendez, 24 I. & N. Dec. 646 (BIA 2008), the BIA construed
the departure bar rule as imposing a limitation on its
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BALERIO RUBALCABA V. GARLAND 3
jurisdiction to entertain motions filed by noncitizens who
had departed the United States, and concluded that it applied
to sua sponte reopening. This court rejected this
interpretation in Toor v. Lynch, 789 F.3d 1055 (9th Cir.
2015), as applied to timely motions for reopening,
concluding that the BIA’s interpretation impermissibly
conflicted with clear and unambiguous statutory language
permitting a noncitizen to file one motion to reopen within
ninety days of a final order of removal. Because the
petitioner’s motion to reopen had been timely in Toor, the
court did not decide whether an untimely motion that relied
on sua sponte reopening authority would be subject to the
departure bar.
The panel joined the Tenth Circuit in holding that the
departure bar does not limit an IJ’s sua sponte reopening
authority. Applying the framework for evaluating an
agency’s interpretation of its own regulations announced in
Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the panel concluded
that 8 C.F.R. § 1003.23(b)(1) is not “genuinely ambiguous.”
Rather, the panel concluded that the plain language of the
regulation makes clear that the departure bar limits only
“motions to reopen,” not an IJ’s sua sponte authority. First,
the panel observed that the regulation distinguishes between
an IJ’s sua sponte reopening authority and a noncitizen’s
ability to file a motion to reopen, and explained that the plain
text of the departure bar applies only to a motion to reopen
or reconsider and says nothing about sua sponte authority.
Second, the panel concluded that the structure of 8 C.F.R.
§ 1003.23(b)(1) confirms the understanding that the
departure bar clearly does not apply to sua sponte authority.
Third, the panel concluded that the history of the regulation
reinforced its conclusion. Finally, the panel concluded that
its interpretation is consistent with the purpose of the
regulation: giving the agency flexibility in truly unusual
4 BALERIO RUBALCABA V. GARLAND
cases in which a noncitizen cannot meet the regulatory
requirements for a “motion to reopen” but the agency
determines that reopening is still justified.
Having concluded that the regulation is not genuinely
ambiguous, the panel explained that was the end of its
inquiry under Kisor, and accordingly, it did not defer to the
BIA’s contrary interpretation.
The panel recognized that the Second, Third, and Fifth
Circuits have reached the opposite conclusion, but noted that
these circuits did not have the benefit of Kisor. Prior to
Kisor, courts evaluated an agency’s interpretation of its own
regulations using the deferential standard set out in Auer v.
Robbins, 519 U.S. 452 (1997), under which an agency’s
interpretation was controlling unless plainly erroneous or
inconsistent with the regulation. However, as the Tenth
Circuit concluded in holding that the departure bar was not
genuinely ambiguous, the panel explained that Kisor
requires the court to “dig deeper” in determining whether a
regulation is genuinely ambiguous.
COUNSEL
Elsa I. Martinez (argued), Law Offices of Elsa Martinez
PLC, Culver City, California, for Petitioner.
Sarah Stevens Wilson (argued), Assistant United States
Attorney, United States Attorney’s Office, Birmingham,
Alabama; Eric R. Quick, Trial Attorney; Paul Fiorino,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
BALERIO RUBALCABA V. GARLAND 5
OPINION
MURGUIA, Circuit Judge:
This case requires us to examine the “departure bar”
provision in 8 C.F.R. § 1003.23(b)(1) in the context of sua
sponte reopening. Title 8 C.F.R. § 1003.23 governs the
reopening of immigration proceedings before an
immigration judge (“IJ”). Section 1003.23(b)(1) allows the
IJ to reopen a case on his or her own motion—what is known
as sua sponte reopening—or pursuant to a motion to reopen
filed by either party. 8 C.F.R. § 1003.23(b)(1). Motions to
reopen are subject to various procedural limits. See id.§ 1003.23(b)(1), (3). As relevant here, 8 C.F.R.
§ 1003.23(b)(1) provides: “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.” This provision, which the agency has
interpreted to prevent a noncitizen who has departed the
United States from reopening his or her removal
proceedings, is known as the “departure bar.” See Toor v.
Lynch, 789 F.3d 1055, 1057 (9th Cir. 2015).
Petitioner Filiberto Ruvalcaba, also known as Jaime
Balerio Rubalcaba, 1 was placed in exclusion proceedings
before an IJ and removed from the country more than twenty
years ago. After his departure and his subsequent return to
1
There is some confusion about Petitioner’s legal name in the
agency proceedings and the record. He gave the name “Jaime Balerio-
Rubalcaba” to immigration officials when he was first placed in
exclusion proceedings, but he later explained that this was his brother’s
name. Although “Filiberto Ruvalcaba” is the name Petitioner used in his
motion to reopen, we refer to him as “Rubalcaba” throughout this
opinion for consistency with the BIA’s decision in this case.
6 BALERIO RUBALCABA V. GARLAND
the United States, he requested that the IJ reopen his
immigration proceedings sua sponte to allow him to apply
for adjustment of status. The Board of Immigration Appeals
(“BIA”) relied exclusively on the departure bar in affirming
the IJ’s denial of sua sponte reopening, stating that the IJ
could not reopen Rubalcaba’s case because Rubalcaba had
previously left the country. Rubalcaba argues that this was
impermissible because an IJ should not be prevented from
reopening a noncitizen’s case on the IJ’s own motion based
solely on the noncitizen’s departure during or after prior
proceedings.
This case presents the question whether the departure bar
limits an IJ’s ability to reopen immigration proceedings sua
sponte. We have jurisdiction to review questions of law
under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the
departure bar does not apply in the context of sua sponte
reopening. That is, an IJ’s discretion to reopen a case on his
or her own motion is not limited by the fact that a noncitizen
has previously been removed or has departed from the
United States. Therefore, we grant the petition for review.
I.
Rubalcaba, a native and citizen of Mexico, first came to
the United States in 1992 when he was fourteen years old.
At some point, Rubalcaba left the United States for Mexico.
In 1995, Rubalcaba was apprehended while attempting to re-
enter the United States through the San Ysidro Port of Entry.
Rubalcaba admitted that he was entering the United States
without authorization. The agency then charged with
removing individuals, the now-defunct Immigration and
Naturalization Service, detained Rubalcaba and placed him
in exclusion proceedings. An IJ determined that he was
inadmissible and ordered him excluded and deported on
October 31, 1995. Rubalcaba waived his right to appeal to
BALERIO RUBALCABA V. GARLAND 7
the BIA, and the government removed him to Mexico after
the conclusion of the proceedings.
Five months later, Rubalcaba re-entered the United
States “through the hills in Tijuana.” He acknowledges that
he was never formally inspected or admitted. He has
remained in the United States since 1996.
In 2016, Rubalcaba sought to reopen his proceedings
before an IJ. Rubalcaba asked the IJ to exercise her sua
sponte reopening authority under 8 C.F.R. § 1003.23(b)(1) 2
so that he could apply for adjustment of status based on a
visa petition his father had filed on his behalf, which had
become current. 3 The IJ denied Rubalcaba’s motion for
several reasons. The IJ first explained that Rubalcaba’s
motion to reopen was untimely and that he failed to show
due diligence such that he would be entitled to equitable
tolling of the ninety-day deadline for filing a motion to
reopen. The IJ further determined that Rubalcaba’s case did
not present an exceptional situation that justified a favorable
exercise of discretion. Therefore, the IJ declined to exercise
her sua sponte reopening authority. In addition, as relevant
here, the IJ also determined that she lacked jurisdiction over
Rubalcaba’s case because Rubalcaba had previously
2
Despite the fact that Rubalcaba himself requested reopening
through a motion, this practice has been known as “sua sponte”
reopening and considered an exercise of the IJ’s or BIA’s discretion in
immigration court practice. See 85 Fed. Reg. 81,588, 81,628 (Dec. 16,
2020) (recognizing “that the BIA has, in the past, exercised what it
termed ‘sua sponte authority’ in response to a motion”).
3
Rubalcaba’s father became a lawful permanent resident around
1989 and filed a visa petition on Rubalcaba’s behalf in 1993. Rubalcaba
asserted in his motion to reopen that because he had aged out of the
relevant category—unmarried children of lawful permanent residents—
he “had to wait over 23 years to seek adjustment of status.”
8 BALERIO RUBALCABA V. GARLAND
departed the United States in 1995. According to the IJ, “the
departure bar under 8 C.F.R. § 1003.23(b)(1), prevent[ed]
[Rubalcaba] from filing this untimely motion on an executed
final administrative order of exclusion.” In other words, the
IJ determined she could not consider reopening Rubalcaba’s
case because Rubalcaba had previously left the country.
Rubalcaba appealed to the BIA. The BIA dismissed
Rubalcaba’s appeal, relying solely on the departure bar. The
BIA explained that “[t]he Immigration Judge correctly found
that reopening based on [Rubalcaba’s] untimely motion, as
well as reopening sua sponte, was barred because
[Rubalcaba] had departed the United States.” Therefore, the
BIA determined that it did not need to address the IJ’s
alternative reasons for refusing to reopen Rubalcaba’s
proceedings, including the lack of an “exceptional situation”
justifying reopening. Rubalcaba timely petitioned for
review.
II.
When the BIA denies sua sponte reopening or
reconsideration as a matter of discretion, we lack jurisdiction
to review that decision, although we retain jurisdiction to
review the denial of sua sponte reopening for “legal or
constitutional error.” Lona v. Barr, 958 F.3d 1225, 1229
(9th Cir. 2020) (quoting Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016)). The parties agree that the validity and
application of the departure bar in 8 C.F.R. § 1003.23(b)(1)
is a question of law, and that because the BIA relied on the
departure bar in denying Rubalcaba relief, we can review the
BIA’s decision.
We generally review the BIA’s denial of a motion to
reopen for abuse of discretion. See Toor, 789 F.3d at 1059.
But we review the BIA’s purely legal determinations de
BALERIO RUBALCABA V. GARLAND 9
novo. Id. Because the BIA’s interpretation of the departure
bar “presents a purely legal question” of regulatory
interpretation, “we apply de novo review, ‘giving
appropriate deference to the agency if warranted.’” Id.
(quoting Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735
(9th Cir. 2012)). 4
III.
Our review is focused on whether the departure bar
limits an IJ’s authority to reopen immigration proceedings
sua sponte, that is, on his or her own motion—a question of
first impression for our Circuit.
When Rubalcaba sought to reopen his immigration
proceedings in 2016, 8 C.F.R. § 1003.23(b)(1) provided, in
relevant part:
An Immigration Judge may upon his or her
own motion at any time, or upon motion of
the Service or the alien, reopen or reconsider
any case in which he or she has made a
decision, unless jurisdiction is vested with the
Board of Immigration Appeals. . . . A motion
to reopen must be filed within 90 days of the
date of entry of a final administrative order of
removal, deportation, or exclusion. . . . 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
4
Although the IJ gave several other reasons for denying sua sponte
reopening, including the lack of an “exceptional situation” justifying
reopening, we express no opinion on these other reasons because “our
review is confined to the BIA’s decision and the bases upon which the
BIA relied.” Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988).
10 BALERIO RUBALCABA V. GARLAND
exclusion proceedings subsequent to his or
her departure from the United States.
8 C.F.R. § 1003.23(b)(1) (2020) (emphasis added). 5 There
is a parallel provision limiting reopening by the BIA. See
8 C.F.R. § 1003.2(d) (“A motion to reopen or a motion to
reconsider shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or removal
proceedings subsequent to his or her departure from the
United States.”).
A.
In Matter of Armendarez-Mendez, 24 I. & N. Dec. 646(BIA 2008), the BIA examined the departure-bar provision 6
5
As of January 15, 2021, the text of subsection (b)(1) has been
amended by regulation. See 85 Fed. Reg. 81,588, 81,655 (Dec. 16,
2020). The amended regulation preserves most of subsection (b)(1),
including the departure-bar language, but replaces the first sentence
above with the following: “Unless jurisdiction is vested with the Board
of Immigration Appeals, an immigration judge may at any time reopen
a case in which he or she has rendered a decision on his or her own
motion solely in order to correct a ministerial mistake or typographical
error in that decision or to reissue the decision to correct a defect in
service. Unless jurisdiction is vested with the Board of Immigration
Appeals, in all other cases, an immigration judge may only reopen or
reconsider any case in which he or she has rendered a decision solely
pursuant to a motion filed by one or both parties.” See id. at 81,655;
8 C.F.R. § 1003.23(b)(1) (2021). Although the new regulation purports
to limit the instances in which an IJ may exercise sua sponte reopening
authority, which might affect Rubalcaba’s case on remand, the
government concedes that we must evaluate the regulation as it existed
and was applied at the time of the BIA’s decision.
6
The BIA’s decision focused primarily on 8 C.F.R. § 1003.2(d),
which relates to reopening by the BIA, but explained that the language
in 8 C.F.R. § 1003.23(b)(1), which relates to reopening by an IJ, was
BALERIO RUBALCABA V. GARLAND 11
and “construed the departure bar rule as imposing a
limitation on [its] jurisdiction to entertain motions filed by
aliens who had departed the United States.” Id. at 648.
According to the BIA, this jurisdictional limitation also
applies to requests for sua sponte reopening. Id. at 660. In
other words, the BIA understood the regulation to prevent
the IJ or BIA from considering reopening a case where a
noncitizen had previously left the country during removal
proceedings or “after being ordered removed.” Id. at 648;
see also id. at 660.
We rejected this interpretation in part in Toor v. Lynch,
as applied to regular and timely motions for reopening. See
789 F.3d at 1057. In Toor, we held that an IJ or the BIA
cannot apply the departure bar in cases where a noncitizen
has filed a timely motion to reopen within ninety days of a
final order of removal—regardless of when or how the
noncitizen departed the United States. Id. That is because
the immigration statute permits a noncitizen to file one
motion to reopen proceedings within ninety days of a final
order of removal without any limitation based on a
noncitizen’s presence in, or departure from, the United
States. Id. at 1060; see 8 U.S.C. § 1229a(c)(7). In Toor, we
explained that the BIA’s interpretation of the departure bar
was impermissible with respect to timely motions to reopen
because it conflicted with the “clear and unambiguous”
command of the statute. 789 F.3d at 1060–61, 1064; see
8 U.S.C. § 1229a(c)(7). As we noted, every other circuit to
consider the question has agreed that the departure bar is
“[e]ssentially identical.” Matter of Armendarez-Mendez, 24 I. & N. Dec.
at 648. We have previously recognized that Matter of Armendarez-
Mendez pertains to both of these regulations. See Toor, 789 F.3d
at 1058–59.
12 BALERIO RUBALCABA V. GARLAND
invalid in the context of a single, timely motion to reopen.
789 F.3d at 1057 n.1 (collecting cases).
Because the petitioner’s motion to reopen had been
timely in Toor, we did not need to decide whether an
untimely motion that relied on the IJ’s or BIA’s sua sponte
reopening authority would be subject to the departure bar.
Id. Therefore, we left open the question of “the validity of
the regulatory departure bar when applied to motions to
reopen or to reconsider filed untimely, and thus out of
compliance with” the immigration statute. Id. We observed,
however, that the Second and Fifth Circuits had concluded
that the departure bar could be applied in the context of sua
sponte reopening. Id. (citing, inter alia, Zhang v. Holder,
617 F.3d 650, 660–65 (2d Cir. 2010), and Ovalles v. Holder,
577 F.3d 288, 295–96 (5th Cir. 2009)).
We now take up the question that we left open in Toor—
whether the departure bar limits an IJ’s sua sponte reopening
authority. We conclude that it does not.
B.
Sua sponte reopening was created by agency regulations;
no statute establishes or limits an IJ’s or the BIA’s authority
to reopen a case on their own motion. See Reyes-Vargas v.
Barr, 958 F.3d 1295, 1302–03 (10th Cir. 2020); Zhang,
617 F.3d at 656–57. We evaluate the BIA’s interpretation of
its own regulations using “the deference framework
announced in Kisor v. Wilkie.” See Reyes-Vargas, 958 F.3d
at 1300 (citing Kisor v. Wilkie, 139 S. Ct. 2400 (2019)); see
also Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020).
Here, the relevant interpretation is found in Matter of
Armendarez-Mendez—the BIA’s published decision
concluding that the departure-bar provision in 8 C.F.R.
§ 1003.23(b)(1) deprives an IJ of “jurisdiction to consider [a
BALERIO RUBALCABA V. GARLAND 13
noncitizen’s] motion sua sponte.” See Matter of
Armendarez-Mendez, 24 I. & N. Dec. at 660.
According to Kisor v. Wilkie, we must first determine
whether 8 C.F.R. § 1003.23(b)(1) is “genuinely ambiguous.”
Attias, 968 F.3d at 937 (quoting Kisor, 139 S. Ct. at 2414).
The Supreme Court has cautioned that “when we use that
term, we mean it—genuinely ambiguous, even after a court
has resorted to all the standard tools of interpretation.”
Kisor, 139 S. Ct. at 2414. These tools include the “text,
structure, history, and purpose of [the] regulation.” Id.
at 2415 (citation omitted). If the regulation is not genuinely
ambiguous, we do not defer to the agency’s interpretation.
Id. “If genuine ambiguity remains” after exhausting the
traditional tools of construction, we must then ask whether
the agency’s interpretation is reasonable. Id. at 2415–16.
But even if the agency’s interpretation of a genuinely
ambiguous regulation is reasonable, “we are not done.” Id.
at 2416. Because “not every reasonable agency reading of a
genuinely ambiguous rule” receives deference, we “must
make an independent inquiry into whether the character and
context of the agency interpretation entitles [the
interpretation] to controlling weight.” Id.
1.
Joining the Tenth Circuit, we hold that the departure-bar
regulation is not genuinely ambiguous. See Reyes-Vargas,
958 F.3d at 1302–03. At all times relevant for Rubalcaba’s
petition for review, 8 C.F.R. § 1003.23(b)(1) stated:
An Immigration Judge may upon his or her
own motion at any time, or upon motion of
the Service or the alien, reopen or reconsider
any case in which he or she has made a
decision, unless jurisdiction is vested with the
14 BALERIO RUBALCABA V. GARLAND
Board of Immigration Appeals. Subject to
[certain exceptions], a party may file only one
motion to reconsider and one motion to
reopen proceedings. . . . A motion to reopen
must be filed within 90 days of the date of
entry of a final administrative order of
removal, deportation, or exclusion, or on or
before September 30, 1996, whichever is
later. 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, 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 or a motion to
reconsider shall constitute a withdrawal of
such motion. . . .
8 C.F.R. § 1003.23(b)(1) (2020) (emphasis added). The text,
structure, history, and purpose of the regulation make clear
that the italicized language above—the departure-bar
provision—does not apply in the context of sua sponte
reopening. See Kisor, 139 S. Ct. at 2415.
First, the plain language of this regulation distinguishes
between an IJ’s ability to reopen “upon his or her own
motion at any time”—an IJ’s sua sponte reopening
authority—and a noncitizen’s ability to file one motion to
reopen within ninety days of a final order of removal. See
8 C.F.R. § 1003.23(b)(1) (2020). A “motion to reopen” is
limited by time (ninety days) and number (one), unless
certain exceptions apply. See id. By contrast, sua sponte
BALERIO RUBALCABA V. GARLAND 15
reopening does not require a motion, and has historically
been permitted “at any time.” Id.; see Menendez-Gonzalez
v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019). According to
the plain text of the regulation, the departure bar applies only
to “a motion to reopen or reconsider.” See 8 C.F.R.
§ 1003.23(b)(1). The departure-bar provision 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.” Id. (emphasis added). On its face,
this sentence says nothing about sua sponte reopening
authority. See Reyes-Vargas, 958 F.3d at 1305.
Second, the structure of 8 C.F.R. § 1003.23(b)(1)
confirms this understanding. Viewed in its regulatory
context, the departure-bar provision clearly applies to “a
motion to reopen,” rather than to the agency’s sua sponte
reopening authority. The first sentence of 8 C.F.R.
§ 1003.23(b)(1) establishes the IJ’s authority to reopen cases
sua sponte “at any time.” The regulation then provides, in
the alternative, that either party may file a motion to reopen.
Id. The next three sentences of the regulation expressly limit
a “motion to reopen” or a motion to reconsider, establishing
time and number limits. Id. Again, these time and number
limits do not apply to sua sponte reopening; the government
acknowledges as much. The next sentence of the regulation
contains the departure bar. Id. This structure supports our
conclusion that, like the time and number limits in the
preceding sentence of 8 C.F.R. § 1003.23(b)(1), the
departure bar does not apply to sua sponte reopening.
Third, the history of the regulation reinforces our
conclusion that the departure bar does not apply in the
context of sua sponte reopening. The Attorney General
promulgated the regulations containing the departure bar in
16 BALERIO RUBALCABA V. GARLAND
1952, as part of the implementation of the Immigration and
Nationality Act. See 17 Fed. Reg. 11,469, 11,475 (Dec. 19,
1952) (previously codified at 8 C.F.R. § 6.2) (“A motion to
reopen or a motion to reconsider shall not be made by or in
[sic] behalf of a person who is the subject of deportation
proceedings subsequent to his departure from the United
States.”). Several years later, the Attorney General added
the provision permitting sua sponte reopening before the
BIA: “The Board may on its own motion reopen or
reconsider any case in which it has rendered a decision.” See
23 Fed. Reg. 9115, 9118 (Nov. 26, 1958) (emphasis added)).
In the decades that followed, the Attorney General
promulgated regulations establishing the ninety-day time
limit for motions to reopen but continued to affirm that sua
sponte reopening was available “at any time.” See, e.g.,
61 Fed. Reg. 18,900, 18,904 (Apr. 29, 1996) (“The Board
may at any time reopen or reconsider on its own motion any
case in which it has rendered a decision.”). After the passage
of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), the Attorney General
promulgated the current regulations governing reopening by
an IJ. See 62 Fed. Reg. 10,312, 10,332–33 (Mar. 6, 1997)
(previously codified at 8 C.F.R. § 3.23(b)(1)). The
regulations allowed an IJ to reopen proceedings sua sponte
“at any time” but established certain limits on “a motion to
reopen,” including the departure bar. Id. This history
reinforces our conclusion that a request for sua sponte
reopening is not subject to the departure bar, because sua
sponte reopening has long provided a separate mechanism
for reopening that is not subject to the other regulatory limits
on reopening.
Finally, the purpose of the regulation is consistent with
our understanding that sua sponte reopening is not limited
by the departure bar. Sua sponte reopening is an entirely
BALERIO RUBALCABA V. GARLAND 17
discretionary mechanism. See Bonilla, 840 F.3d at 585.
This mechanism is available in cases where the agency is
“persuaded that the respondent’s situation is truly
exceptional” and is often a noncitizen’s only option for
seeking relief from a final order of removal. Id. (internal
citation omitted); see also In re J-J-, 21 I. & N. Dec. 976,
984 (BIA 1997) (“The power to reopen on our own motion
is not meant to be used as a general cure for filing defects or
to otherwise circumvent the regulations, where enforcing
them might result in hardship”). Put another way, sua sponte
reopening gives the agency flexibility in truly unusual cases
in which a noncitizen cannot meet the regulatory
requirements for a “motion to reopen” but the agency
determines that reopening is still justified by the
circumstances. We agree with the Tenth Circuit that the
plain language of the departure-bar regulation—which
speaks only of a “motion to reopen” and does not limit sua
sponte reopening authority—is consistent with this purpose.
See Reyes-Vargas, 958 F.3d at 1305–06 (“Had the agency
written its regulations to attach a post-departure bar to the
IJ’s and Board’s sua sponte authority to reopen removal
proceedings, the resulting sua sponte authority would be
next to worthless.”).
Based on the regulation’s text, structure, history, and
purpose, we conclude that 8 C.F.R. § 1003.23(b)(1) is not
genuinely ambiguous. See Kisor, 139 S. Ct. at 2414–15; see
also Reyes-Vargas, 958 F.3d at 1306. Rather, the plain
language of 8 C.F.R. § 1003.23(b)(1) makes clear that the
departure bar limits only “motions to reopen,” not an IJ’s sua
sponte reopening authority. That is the end of our inquiry
under Kisor. See Attias, 968 F.3d at 937. Accordingly, we
do not defer to the BIA’s contrary interpretation in Matter of
Armendarez-Mendez. See id. (“If the regulation’s text is
unambiguous, we give no deference to the agency’s
18 BALERIO RUBALCABA V. GARLAND
interpretation: ‘[t]he regulation then just means what it
means.’”) (quoting Kisor, 139 S. Ct. at 2415).
2.
We recognize that some of our sister circuits have
reached the opposite conclusion. See Zhang, 617 F.3d
at 664–65; Ovalles, 577 F.3d at 295–96. But these circuits
did not have the benefit of the Supreme Court’s guidance in
Kisor v. Wilkie, which clarified the framework for deferring
to an agency’s interpretation of its own regulations. See
Kisor, 139 S. Ct. at 2414.
Before Kisor, we generally evaluated an agency’s
interpretation of its own regulations using the framework of
Auer v. Robbins. See Marsh v. J. Alexander’s LLC, 905 F.3d
610, 623–24 (9th Cir. 2018) (citing Auer v. Robbins,
519 U.S. 452 (1997)). Auer provided a “deferential
standard” under which an agency’s interpretation was
“controlling unless plainly erroneous or inconsistent with the
regulation.” Auer, 519 U.S. at 461 (internal quotation marks
and citation omitted). This deferential standard is the one
the Second Circuit applied in Zhang v. Holder and the Fifth
Circuit applied in Ovalles v. Holder. See Zhang, 617 F.3d at
660 (noting that “the BIA’s construction is anything but
airtight” but concluding that, although the agency’s
interpretation was “linguistically awkward . . . we cannot say
that the Board’s construction is plainly erroneous”); Ovalles,
577 F.3d at 291–92 (explaining that the court was required
to “grant the BIA’s interpretation of its own regulations
BALERIO RUBALCABA V. GARLAND 19
‘considerable legal leeway’”) (quoting Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003)). 7
As the Tenth Circuit—the only circuit to consider the
question after Kisor—concluded, Kisor requires us to “dig
deeper” in determining whether a regulation is genuinely
ambiguous. See Reyes-Vargas, 958 F.3d at 1307 (“We must
apply Kisor’s framework, whatever . . . any other pre-Kisor
case held.”). We conclude, as the Tenth Circuit did, that the
regulation is not genuinely ambiguous under Kisor’s
exacting framework. See id. Therefore, the BIA’s
interpretation is not entitled to deference.
IV.
In conclusion, we hold that the BIA erred in determining
that the departure bar prevented the IJ from reopening
Rubalcaba’s immigration proceedings sua sponte.
Therefore, we grant the petition for review and vacate the
BIA’s decision. Because we conclude that the plain,
unambiguous language of the regulation makes clear that the
departure bar does not apply in the context of sua sponte
reopening, we need not address Rubalcaba’s alternative
argument that he is not subject to the bar based on the timing
of his departure from the United States. We remand to the
BIA to consider whether the alternative bases the IJ offered
for denying sua sponte reopening were permissible. See INS
7
The Third Circuit reached the same result in Desai v. Attorney
General, adopting the Second Circuit’s analysis from Zhang. See
695 F.3d 267, 270–71 (3d Cir. 2012) (citing Zhang, 617 F.3d at 665).
We note that, post-Kisor, the Third Circuit has called this approach into
question. See Ovalle v. Att’y Gen., 791 F. App’x 333, 336 (3d Cir. 2019)
(“That reasoning . . . does not survive the Supreme Court’s recent
decision in Kisor.”).
20 BALERIO RUBALCABA V. GARLAND
v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); Lona,
958 F.3d at 1229.
PETITION GRANTED.