in the united states court of appeals raul mejia … of... · raul mejia-gomez, petitioner, v. eric...
TRANSCRIPT
No. 12-60365
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
RAUL MEJIA-GOMEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
Petition for Review of an Order of the Board of Immigration Appeals
BIA No. A091-177-378
BRIEF OF PETITIONER
RAUL MEJIA-GOMEZ
Nicholas G. Grimmer Lead Counsel Adam Auchter Allgood Scott W. Clark Donna M. Haynes MCDERMOTT WILL & EMERY 1000 Louisiana Street, Suite 3900 Houston, Texas 77002 Telephone: 713.653.1700 Email: [email protected]
Charles Roth Claudia Valenzuela NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1818 Chicago, Illinois 60604 Telephone: 312.660.1370
Attorneys for Petitioner
-i-
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal: Petitioner: Raul Mejia-Gomez Counsel for Petitioner:
Nicholas G. Grimmer, Adam Auchter Allgood, Scott W. Clark, and Donna M. Haynes, MCDERMOTT WILL & EMERY LLP Charles Roth and Claudia Valenzuela, NATIONAL IMMIGRANT JUSTICE
CENTER Respondent: Eric H. Holder, Jr., United States Attorney General Counsel for Respondent:
Juria L. Jones and Tangerlia Cox, Office of Immigration Litigation, United States Department of Justice
-ii-
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument will assist this Court in its
consideration of the novel and complex legal issues presented by this appeal.
Resolution of these issues will have significant and far-reaching effects for
petitioner and for others denied appellate review because they were involuntarily
removed from the United States prior to taking an appeal.
-iii-
TABLE OF CONTENTS
I. INTRODUCTION................................................................................................1
II. JURISDICTIONAL STATEMENT..........................................................................3
III. ISSUES PRESENTED..........................................................................................3
IV. STATEMENT OF THE CASE ...............................................................................4
V. STATEMENT OF FACTS.....................................................................................5
VI. SUMMARY OF THE ARGUMENT......................................................................10
VII. ARGUMENT ...................................................................................................11
A. Standard of Review......................................................................................11
B. The BIA’s dismissal based on § 1003.3(e) was improper because § 1003.3(e) – by its plain text – does not apply when a petitioner is involuntarily removed. ................................................................................11
1. “Waiver” implies intentionality; involuntary deportation does not constitute waiver under the plain meaning of the regulation. .................13
2. “Departure,” at least in § 1003.3(e), does not include deportation. ........15
3. The BIA’s conclusion that, by being deported, Mr. Mejia “departed” the country and “waived” his right to appeal is fundamentally unreasonable and wrong..................................................18
C. DHS’s post-order attack of the BIA’s jurisdiction was a collateral attack barred by res judicata........................................................................20
D. DHS cannot litigate in “piecemeal” fashion, first losing on the merits, then seeking procedural default based on a previously-known fact. ..............................................................................................................22
E. Section 1003.3(e) conflicts with Congressional command and is therefore invalid under Chevron and/or Union Pacific...............................24
1. Section 1003.3(e) is invalid under Chevron because it exceeds statutory authority and is ultra vires........................................................24
-iv-
a. Congress clearly recognizes the right to appeal IJ decisions, irrespective of an alien’s “departure.” .................................................25
b. Even Congress was not clear, the single-member 2012 BIA Decision is not entitled to deference....................................................27
2. The BIA’s interpretation of § 1003.3(e) is invalid under Union Pacific because it is an impermissible contraction of Congressionally-granted jurisdiction. .....................................................31
VIII. CONCLUSION.................................................................................................32
-v-
TABLE OF AUTHORITIES1
Cases
Agholor v. Holder, 454 F. App’x 360 (5th Cir. 2011).............................................30
Arobelidze v. Holder, 653 F.3d 513 (7th Cir. 2011)................................................29
Auer v. Robbins, 519 U.S. 452 (1997) .............................................................. 25, 28
Barrios v. Holder, 581 F.3d 849 (9th Cir. 2008) .....................................................29
Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) ..................................................14
BizCapital Bus. & Indust. Dev. Corp. v. Office of Comptroller of Currency of U.S., 406 F. Supp. 2d 688 (E.D. La. 2005) ......................................14
Boumediene v. Bush, 553 U.S. 723 (2008) ..............................................................19
Carachuri-Rosendo v. Holder, --- U.S. ---, 130 S.Ct. 2577 (2010).........................17
Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010)..................................................29
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984)................ 24, 28
Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) .............................................................................................21
City of Dallas v. FCC, 165 F.3d 341 (5th Cir. 1999) ..............................................26
Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) ............................27
Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010)............................................. 19, 27, 28
Dada v. Mukasey, 554 U.S. 1 (2008)................................................................ 14, 27
Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981) .............................................11
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568 (1988) ..................................................................28
1 All cases reported in F. App’x, I. & N. Dec., and WL are included in an Addendum filed herewith, along with the relevant excerpts from BLACK’S LAW DICTIONARY (9th ed. 2009).
-vi-
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).......... 24, 25, 28
Galvez-Vergara v. Gonzales, 484 F.3d 798 (5th Cir. 2007)....................................11
Guevara v. Gonzales, 450 F.3d 173 (5th Cir. 2006)............................. 11, 20, 21, 22
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .............................................................17
Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir. 2006) ..................................11
Ijemba v. Mukasey, 263 F. App’x 407 (5th Cir. 2008)............................................23
In re O-S-G-, 24 I. & N. Dec. 56 (BIA 2006)..........................................................22
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)................................................... 25, 28
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) .............................................................................................20
Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005).....................25
Jaquez-Vega v. Gonzales, 140 F. App’x 547 (5th Cir. 2005)..................................21
Jian Le Lin v. U.S. Att'y Gen., --- F.3d ---, 2012 WL 1860686 (11th Cir. 2012)..................................................27
Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011) ......................................................27
Kucana v. Holder, --- U.S. ---, 130 S.Ct. 827 (2010) ................................... 8, 17, 27
La. Envtl. Action Network v. EPA, 382 F.3d 575 (5th Cir. 2004) ...........................28
Landon v. Plasencia, 459 U.S. 21 (1982)................................................................29
Long v. Gonzales, 420 F.3d 516 (5th Cir. 2005) .............................................. 13, 14
Lopez v. Gonzales, 549 U.S. 47 (2006) ...................................................................18
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) ..................................................... 19, 32
Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) .............................. 19, 32
Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir. 2004)..........................29
Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008)...........................33
-vii-
Matter of Luis, 22 I. & N. Dec. 747 (BIA 1999) .....................................................19
Matter of Medrano, 20 I. & N. Dec. 216 (BIA 1991) .............................................22
Mushtaq v. Holder, 583 F.3d 875 (5th Cir. 2009) ............................................ 29, 30
Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) ..................................12
Nken v. Holder, 556 U.S. 418 (2009) ......................................................................32
Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993)....................................................23
Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) .............................................. 11, 26
Patel v. U.S. Att'y Gen., 394 F. App’x 941 (3d Cir. 2010) ..................... 2, 16, 18, 31
Prestol Espinal v. U.S. Att'y Gen., 653 F.3d 213 (3d Cir. 2011)................ 26, 28, 32
Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011).....................................................32
Rana v. Holder, 654 F.3d 547 (5th Cir. 2011).........................................................30
Rodriguez-Barajas v. Holder, 624 F.3d 678 (5th Cir. 2010)...................................11
Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286 (5th Cir. 1992) ..............................................................................21
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........................................................30
Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) .............................................................................................28
Sung v. Keisler, 505 F.3d 372 (5th Cir. 2007) .........................................................27
Union Pac. R.R. v. Bd. of Locomotive Eng'rs, --- U.S. ---, 130 S.Ct. 584 (2009) .........................................................................31
United States v. Johnson, 529 U.S. 53 (2000) .........................................................25
United States v. Mead, 533 U.S. 218 (2001) .................................................... 29, 30
White v. INS, 6 F.3d 1312 (8th Cir. 1993) ...............................................................21
William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) .......................................... 26, 28
-viii-
Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) .......................................................3
Zhenghao Liu v. Holder, 364 F. App’x 90 (5th Cir. 2010)......................................22
Statutes
8 U.S.C. § 1229a(b) .................................................................................................25
8 U.S.C. § 1229a(c)............................................................................... 16, 25, 26, 31
8 U.S.C. § 1252(a) .............................................................................................. 3, 31
8 U.S.C. § 1252(b) .....................................................................................................3
8 U.S.C. § 1362........................................................................................................25
Regulations
8 C.F.R. § 1003.1(b) ................................................................................................15
8 C.F.R. § 1003.1(g) ......................................................................................... 12, 29
8 C.F.R. § 1003.2(d) ............................................................................... 9, 15, 17, 19
8 C.F.R. § 1003.23(b) ................................................................................... 9, 15, 17
8 C.F.R. § 1003.3(a).................................................................................................15
8 C.F.R. § 1003.3(e)......................................................................................... passim
8 C.F.R. § 1003.38 ...................................................................................................15
8 C.F.R. § 1003.4 .............................................................................................. 15, 19
8 C.F.R. § 1240.15 ...................................................................................................15
Other Sources
BLACK’S LAW DICTIONARY (9th ed. 2009) ....................................................... 13, 17
OFFICE OF THE CHIEF IMMIGRATION JUDGE, IMMIGRATION COURT PRACTICE MANUAL (2008) ................................................14
-1-
No. 12-60365
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
RAUL MEJIA-GOMEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
Petition for Review of an Order of the Board of Immigration Appeals
BIA No. A091-177-378
BRIEF OF PETITIONER
RAUL MEJIA-GOMEZ
I. INTRODUCTION
The government forcibly removed Raul Mejia-Gomez from the United
States, and now claims he waived his right to appeal because he left the country. It
is from this Kafkaesque situation that Mr. Mejia appeals to this Court.
Two decisions of the Board of Immigration Appeals (“BIA” or “Board”) are
at issue in Mr. Mejia’s appeal. The BIA first decided that Mr. Mejia deserved a
-2-
real opportunity – one not marred by ineffective assistance of counsel – to present
his case for remaining in this country to the Immigration Judge (“IJ”).2
Accordingly, it remanded Mr. Mejia’s case back to the IJ to give Mr. Mejia that
opportunity.3
Dissatisfied with the BIA’s first decision, the Department of Homeland
Security (“DHS”) filed a motion to reconsider, raising for the first time that it
“inadvertently failed to notify” the BIA of its forcible removal of Mr. Mejia to
Mexico before he could file his appeal.4 DHS claimed that its deportation
unilaterally stripped the BIA of jurisdiction to consider Mr. Mejia’s timely appeal.
The BIA agreed in its second decision, which reversed its first and held that
because 8 C.F.R. § 1003.3(e) renders an alien’s “[d]eparture . . . a waiver of [his]
right to appeal,” the BIA never had jurisdiction to grant Mr. Mejia the opportunity
to present a case untainted by ineffective assistance of counsel.5
The BIA’s first decision was right, but the second was wrong—so wrong, in
fact, that courts label similar BIA decisions “untenable” and “a perversion.”6 Mr.
2 AR 48-51, 56. 3 AR 51. 4 AR 26-29. 5 AR 3; 8 C.F.R. § 1003.3(e). 6 Madrigal v. Holder, 572 F.3d 239, 245 (6th Cir. 2009); Patel v. U.S. Att’y Gen., 394 F. App’x 941, 944-45 (3d Cir. 2010) (unpublished).
-3-
Mejia now appeals to this Court for review of the BIA’s second decision (denying
jurisdiction), and requests reinstatement of the BIA’s first decision.
II. JURISDICTIONAL STATEMENT
Jurisdiction is proper pursuant to 8 U.S.C. § 1252(a) because the petition
raises questions of law.7 Venue is proper pursuant to 8 U.S.C. § 1252(b)(2)
because the IJ completed proceedings in Dallas, Texas, within the jurisdiction of
this judicial circuit. The Petition for Review was timely filed within 30 days of the
BIA’s April 10, 2012 Decision, as required by 8 U.S.C. § 1252(b)(1).
III. ISSUES PRESENTED
1) The regulation’s plain language. 8 C.F.R. § 1003.3(e) states that
“[d]eparture from the United States . . . shall constitute a waiver of [an alien’s]
right to appeal.” “Departure” implies a volitional, self-motivated act, and “waiver”
is an intentional relinquishment of a right. Did Mr. Mejia “depart” and “waive” his
right to appeal when DHS deported him?
2) Res judicata. Res judicata bars collateral attacks on the BIA’s
jurisdiction. Motions to reopen/reconsider are “collateral attacks” because a BIA
decision is considered a “final order.” After the BIA granted Mr. Mejia’s appeal,
7 The right to appeal under 8 U.S.C. § 1252(a)(1) includes an implicit jurisdictional grant of authority for this Court to review, as here, BIA orders denying motions to reopen removal proceedings. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (“[W]e have authority to review the motion to reopen.”); Madrigal v. Holder, 572 F.3d 239, 242-43 (6th Cir. 2009) (“[W]e have also asserted jurisdiction over denials of a motion to reopen.”).
-4-
DHS attacked the BIA’s jurisdiction with a motion to reconsider. Does res
judicata bar DHS’s motion?
3) DHS’s improper “piecemeal” litigation. Under BIA precedent, a
motion to reconsider based on a legal argument that could have been raised earlier
in the proceedings will be denied. DHS deported Mr. Mejia almost five months
before the BIA granted Mr. Mejia’s appeal, then waited a month to file a motion to
reconsider, arguing that the deportation deprived the BIA of jurisdiction. Could
the BIA grant that motion?
4) Regulatory validity under Chevron and Union Pacific. Agency
regulations are invalid if they conflict with Congressional intent or restrict a
Congressional grant of jurisdiction. Congress expressly recognizes an alien’s right
to appeal IJ decisions – and the BIA’s jurisdiction over such appeals – irrespective
of whether an alien departs the United States. The BIA concluded that 8 C.F.R.
§ 1003.3(e) divested it of jurisdiction when DHS deported Mr. Mejia. Is
§ 1003.3(e) valid?
IV. STATEMENT OF THE CASE
On May 10, 2011, the IJ issued an order of removal, and on June 10,
Mr. Mejia filed a timely motion to reopen that order based on ineffective assistance
of counsel in his initial proceedings. On June 14, the IJ denied his motion, and that
same day, DHS deported Mr. Mejia to Mexico. Mr. Mejia filed a timely appeal of
-5-
the IJ’s decision with the BIA on July 14. The BIA granted this appeal on
December 2 and remanded the case back to the IJ. One month later, DHS filed a
motion to reconsider with the BIA, arguing that the BIA never had jurisdiction to
grant Mr. Mejia’s appeal. On April 20, 2012, the BIA granted DHS’s motion to
reconsider and vacated its initial decision. On May 9, Mr. Mejia timely filed a
petition for review of the BIA’s decision in this Court.
V. STATEMENT OF FACTS
Mr. Mejia came to the United States almost 40 years ago and made his home
in Chicago, where he met Elisa Vasquez, the U.S. citizen with whom he built his
family.8 Mr. Mejia was admitted and inspected with temporary resident status.9
He and Elisa welcomed two daughters (Diane in 1982 and Fabiola in 1986) and
married in 2007—all in Chicago, their home.10
As the only non-citizen of his new family, Mr. Mejia began efforts to secure
lawful permanent resident status around 1987.11 In 1988, he was approved and
issued a form I-688 temporary resident card.12 However, this temporary legal
status expired in 1990 or 1991 because Mr. Mejia inadvertently failed to file a form
8 AR 56, 60, 206, 229, 257. 9 AR 57, 222. 10 AR 60, 255-61. 11 AR 57, 225. 12 AR 57, 222.
-6-
I-698 application to adjust his status from temporary to permanent resident.13 Mr.
Mejia never became a lawful permanent resident.14
In 2005, Mr. Mejia accepted responsibility for a minor role in a mail fraud
scheme and pled guilty to charges several years later.15 He acted as a primary
cooperating witness and assisted the federal government in securing convictions of
many of the nearly 200 defendants.16 By then he had “been living an exemplary
life for many years,” and through his agreeable cooperation and prompt confession,
amongst other factors, he received a substantially reduced sentence of probation,
monitoring, and restitution.17
Almost three years later, with no warning and no triggering event, DHS
served Mr. Mejia with a Notice to Appear, charging him as removable due to his
prior conviction, the “offense of mail fraud.”18 DHS then detained Mr. Mejia and
shipped him first to Wisconsin, then to Texas, where he was held at a detention
facility almost 1,000 miles from his home and his family in Chicago.19
Mr. Mejia has never held “lawful permanent resident” status; rather, his
“temporary resident” status permitted him to file for a § 245 adjustment of status
13 AR 57. 14 AR 92, 107. 15 AR 57, 346-66. 16 AR 57, 382-83. 17 AR 32, 370-71, 404-08. 18 AR 78-79. 19 AR 426-27.
-7-
(based on his marriage) with a § 212(h) waiver of inadmissibility.20 If granted, he
would be able to remain in the country. But in the Notice to Appear, DHS
incorrectly designated Mr. Mejia a “lawful permanent resident,”21 and Mr. Mejia’s
counsel repeatedly represented to the IJ that this inaccurate statement was true.22
True lawful permanent resident status would permanently disqualify Mr. Mejia
from obtaining a § 245 adjustment and § 212(h) waiver. Mr. Mejia followed
counsel’s ineffective advice and did not apply for them, instead conceding
removability and requesting voluntary departure in order to apply for an immediate
family visa with the consulate in Mexico.23
On May 10, 2011 (three months after he was first detained), the IJ denied
Mr. Mejia’s request for voluntary departure and ordered him removed.24 New
counsel reviewed the situation and found that the IJ’s decision was premised on
Mr. Mejia’s inaccurate “lawful permanent resident” status, and learned that this
error would also prevent Mr. Mejia from obtaining a consular visa in Mexico.25
On June 10, 2011, Mr. Mejia’s new counsel brought the error – and the
ineffective assistance of prior counsel – to the IJ’s attention by filing a timely
20 AR 51, 93. An “adjustment of status” is the change of an individual’s immigration status (while in the U.S.) from temporary to permanent resident. 21 AR 78. 22 AR 78, 92-94, 234, 434. 23 AR 56-64, 92-94, 109. 24 AR 316-17. 25 AR 58.
-8-
motion to reopen.26 Four days later (June 14), the IJ summarily denied that
motion, in large part because it concluded that the motion was not “complete when
filed” and the IJ “does not accept piecemeal litigation.”27 Within hours, DHS
forcibly and involuntarily deported Mr. Mejia across the border into Mexico.28
The next day (June 15), the IJ forwarded its decision to Mr. Mejia’s counsel.
The transmittal letter advised:
THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE [BIA] WITHIN 30 CALENDAR DAYS . . . .29
In accordance with these express instructions, Mr. Mejia filed a timely appeal of
the IJ’s decision with the BIA.30 DHS responded with a motion for summary
affirmance, arguing that the IJ correctly denied Mr. Mejia’s motion and that any
errors were harmless; notably, it took no issue with the BIA’s exercise of
jurisdiction over Mr. Mejia’s appeal.31 A three-member panel of the BIA granted
the appeal on December 2, 2011 (the “2011 BIA Decision”), holding that “the
record does not reflect that [Mr. Mejia] is or was a lawful permanent resident.
Consequently, he appears to be eligible for a section 212(h) waiver of
26 AR 202-314. “The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings”; it “is a procedural device serving to ensure ‘that aliens [a]re getting a fair chance to have their claims heard.’” Kucana v. Holder, --- U.S. ---, 130 S.Ct. 827, 843, 837 (2010). 27 AR 191-99. 28 AR 27. 29 AR 190 (emphasis added). 30 AR 150-53. 31 AR 122-25.
-9-
inadmissibility,” i.e., he was “actual[ly] prejudiced” by his prior counsel’s failure
to contest DHS’s “lawful permanent resident” allegation.32 The 2011 BIA
Decision remanded the case back to the IJ to provide Mr. Mejia “an opportunity for
a hearing on his application for adjustment of status,” an opportunity he was
initially denied due to ineffective assistance of counsel.33
Dissatisfied with the 2011 BIA Decision, DHS filed a motion to reconsider,
asserting – for the first time – that it deported Mr. Mejia six months earlier and that
the BIA “lack[ed] jurisdiction over [Mejia]’s motion to reopen on the basis of the
departure bars found at 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1).”34 On April 20,
2012, a single member of the BIA granted DHS’s motion to reconsider (the “2012
BIA Decision”), vacating the 2011 BIA Decision and holding that “[i]nasmuch as
[Mr. Mejia] was removed prior to filing of the appeal on July 14, 2011, the [BIA]
lacked jurisdiction to consider the appeal.”35 The 2012 BIA Decision provided no
analysis aside from a citation to 8 C.F.R. § 1003.3(e).36 On May 9, Mr. Mejia
timely filed his petition for review of the 2012 BIA Decision to this Court.37
32 AR 31-33. 33 AR 33. 34 AR 26-29. 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1) purport to “withdraw[]” a “motion to reopen or a motion to reconsider” upon “[a]ny departure from the United States.” 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1). 35 AR 2-3. 36 Id. The 2012 BIA Decision did not rely on the motion to reopen post-departure bars, § 1003.2(d) or § 1003.23(b)(1), as DHS had urged. AR 3, 26-29. 37 Petition for Review, Mejia-Gomez v. Holder (No. 12-60365).
-10-
VI. SUMMARY OF THE ARGUMENT
Mr. Mejia neither “waived” his right to appeal nor “departed” the United
States when DHS forcibly deported him—he filed a timely appeal. As such, the
BIA’s dismissal of the case based on 8 C.F.R. § 1003.3(e), under which
“[d]eparture from the United States . . . shall constitute a waiver of [an alien’s]
right to appeal,” was improper under the regulation’s plain language.
Furthermore, DHS did not challenge the BIA’s jurisdiction until after the
BIA rendered a final order granting Mr. Mejia’s appeal. Thus, DHS’s motion to
reconsider is a collateral attack barred by res judicata. DHS’s motion is also barred
by BIA precedent preventing “piecemeal” litigation.
Finally, Congress expressly recognizes an alien’s right to appeal IJ decisions
– and the BIA’s jurisdiction over such appeals – irrespective of whether an alien
departs the United States. So § 1003.3(e), at least as the BIA interpreted it here, is
invalid because it reaches beyond Congress’s authorization and deprives the BIA
of jurisdiction when DHS deports an alien before he timely appeals.
The 2012 BIA Decision must therefore be vacated and the 2011 BIA
Decision reinstated.
-11-
VII. ARGUMENT
A. Standard of Review
This Court reviews conclusions of law made by the BIA de novo38 and
reviews the grant of a motion to reconsider for abuse of discretion.39
The Court “may not affirm the BIA’s decision except on the basis of the
reasons [the BIA] provided.”40 Here, the BIA provided exactly one reason: 8
C.F.R. § 1003.3(e) deprived it of “jurisdiction to consider [Mr. Mejia’s] appeal”
because Mr. Mejia was “removed prior to filing [his] appeal . . . .”41 Accordingly,
if this Court affirms the 2012 BIA Decision, it can be on that basis only.
B. The BIA’s dismissal based on § 1003.3(e) was improper because § 1003.3(e) – by its plain text – does not apply when a petitioner is involuntarily removed.
This court “review[s] the BIA’s conclusions of law de novo, although [it]
defer[s] to the BIA’s interpretation of immigration regulations if that interpretation
is reasonable.”42 Stated differently, while the BIA’s interpretation of its own
“regulation is entitled to due deference, [that] interpretation must rationally flow 38 Ovalles v. Holder, 577 F.3d 288, 291 (5th Cir. 2009). 39 Guevara v. Gonzales, 450 F.3d 173, 175 (5th Cir. 2006). 40 Rodriguez-Barajas v. Holder, 624 F.3d 678, 679 (5th Cir. 2010); Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (“[W]e may not affirm an agency decision on reasons other than those it provided.”); Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that adopted by the BIA). 41 AR 3. 42 Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006) (emphasis added); Guevara v. Gonzales, 450 F.3d 173, 175 (5th Cir. 2006) (“We defer to the BIA’s reasonable interpretation of its regulations.”).
-12-
from the language of the regulation.”43 A single-member BIA decision is not
precedential44 and – particularly when the decision fails to provide sufficient
analysis – it is “a poor candidate for any deference [and the Court should] give it
none.”45
As an initial matter, the 2012 BIA Decision is barely an “interpretation” of
8 C.F.R. § 1003.3(e)—it dismissed Mr. Mejia’s appeal based on that regulation but
gave no analysis aside from a “see” citation to § 1003.3(e).46 Deference to this
single member’s single-sentence ruling is unwarranted—most particularly because
it is wrong in a number of ways, as set forth below.
Section 1003.3(e) provides:
Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a waiver of his or her right to appeal.47
43 Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (emphasis added). 44 See 8 C.F.R. § 1003.1(g); Toora v. Holder, 603 F.3d 282, 289 (5th Cir. 2010) (Southwick, J., concurring) (“It takes a majority vote of the Board to make a particular decision of a three-member panel or the en banc Board a precedent.”). 45 Toora, 603 F.3d at 289 (Southwick, J., concurring) (“[I]n a brief order without [sufficient] analysis, a single member of the board concluded that the departure bar required an order of removal by the immigration judge prior to the departure. . . . [This order] is not precedential. It is a poor candidate for any deference. I give it none.”). As addressed supra notes 119-122 and accompanying text, single-member BIA interpretations of statutes are not entitled Chevron deference, but the much-less-deferential Skidmore standard. 46 AR 2-3 (“Inasmuch as the respondent was removed prior to filing of [sic] the appeal on July 14, 2011, the Board lacked jurisdiction to consider the appeal. See 8 C.F.R. § 1003.3(e).”). 47 8 C.F.R. § 1003.3(e).
-13-
The BIA interpreted this regulation to give DHS – the party whose very goal is to
obtain and execute a removal order – the unilateral power to waive its adversary’s
right to appeal that order. This interpretation is fundamentally unreasonable, and
even less reasonable in light of the regulation’s specific language. Indeed, to
conclude that it lacked jurisdiction, the BIA determined that when DHS carried
Mr. Mejia into Mexico against his will, there was a “departure” and a “waiver” as
required by § 1003.3(e). As explained below, these unreasonable conclusions do
not rationally flow from § 1003.3(e)’s language. As a result, the 2012 BIA
Decision cannot be afforded due deference and should be reversed.
1. “Waiver” implies intentionality; involuntary deportation does not constitute waiver under the plain meaning of the regulation.
“Waiver is an intentional relinquishment or abandonment of a known right
or privilege.”48 Section 1003.3(e)’s text – i.e., that departure results in “waiver” –
unambiguously indicates that to relinquish or abandon the right to appeal, an alien
must intend to do so.49 Indeed, “waiver of the right to appeal a removal order must
48 Long v. Gonzales, 420 F.3d 516, 520 (5th Cir. 2005) (discussing “waiver” in the context of § 1003.3(e)). See also BLACK’S LAW DICTIONARY 1717 (9th ed. 2009) (defining “waiver” as “[t]he voluntary relinquishment or abandonment – express or implied – of a legal right or advantage.”) (emphasis added). 49 In Long v. Gonzales, this Court indicated that the requisite ‘intent’ is not the specific intent ‘to depart,’ but the general intent to perform the act(s) effectuating a departure. 420 F.3d at 520-21. The Court “save[d] for another the day the question whether, in the absence of a waiver, an alien can be held to have withdrawn his appeal when he departs the United States
(continued…)
-14-
be ‘considered and intelligent’ or it constitutes a deprivation of the right to appeal
and thus a meaningful opportunity for judicial review.”50 The Department of
Justice (DHS’s parent agency) generally recognizes this.51 And the Supreme Court
recently held that “to safeguard the right to pursue a motion to reopen for voluntary
departure recipients, the alien must be permitted to withdraw, unilaterally, a
voluntary departure request before expiration of the departure period . . . .”52 In
other words, to give up the right to pursue a motion to reopen, an alien must
manifest a desire to do so; the right belongs to the alien, not DHS.
Furthermore, an agency’s interpretation of a regulatory provision is
“unpersuasive” and entitled to no deference if it is inconsistent with another
provision of the regulation.53 Here, the BIA’s interpretation of § 1003.3(e) as
permitting unintentional and involuntary “waiver” is wholly inconsistent with the
(e.g., when an alien is forcibly removed from the country). . . . since Long waived his appeal through his own action.” Id. at 520 n. 6. 50 Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). 51 OFFICE OF THE CHIEF IMMIGRATION JUDGE, IMMIGRATION COURT PRACTICE MANUAL 6.4(a) (2008) (“If the opportunity to appeal is knowingly and intelligently waived, the decision of the [IJ] becomes final.”), http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%206.pdf. 52 Dada v. Mukasey, 554 U.S. 1, 20 (2008). 53 BizCapital Bus. & Indust. Dev. Corp. v. Office of Comptroller of Currency of U.S., 406 F. Supp. 2d 688 (E.D. La. 2005), rev’d on other grounds, 467 F.3d 871, 874 (5th Cir. 2006). In BizCapital, one provision of the OCC’s regulations expressly allowed requests for non-public information, but another made Suspicious Activity Reports (“SARs”) “confidential.” Id. The OCC interpreted the latter provision as absolutely prohibiting its disclosure of any SARs. Id. The court concluded that “[b]ecause SARs are unambiguously incorporated in the provisions allowing requests for non-public OCC information, . . . the OCC’s interpretation . . . [is] unpersuasive” and invalid. Id.
-15-
regulations permitting appeal of IJ decisions. Indeed, 8 C.F.R. §§ 1003.1(b)(2),
1003.3(a)(1), 1003.38, and 1240.15 set forth and delineate the right to appeal.54 If
DHS can waive an alien’s right to appeal, then the alien’s right is meaningless.
Additionally, the BIA’s interpretation of § 1003.3(e) does not account for
the fact that 8 C.F.R.’s other post-departure bars state that “departure . . .
constitute[s] a withdrawal of”55 a motion or appeal, whereas § 1003.3(e) states that
“[d]eparture . . . constitute[s] a waiver of” appeal.56 So even if “withdrawal”
covers both forced and unforced actions, the “waiver” standard (an “intentional
relinquishment . . .”) applies to analysis of § 1003.3(e). The BIA’s interpretation
to the contrary is unpersuasive and invalid.
2. “Departure,” at least in § 1003.3(e), does not include deportation.
Section 1003.3(e)’s reference to “departure” does not entail “deportation”
because those words are not (a) synonymous or (b) used interchangeably in the
54 8 C.F.R. § 1003.1(b)(2) (“Appeals may be filed with the [BIA] from . . . [d]ecisions of [IJs] in removal proceedings, as provided in 8 CFR part 1240 . . . .”); § 1003.3(a)(1) (“An appeal from a decision of an [IJ] shall be taken by filing a Notice of Appeal from a Decision of an [IJ] (Form EOIR–26) directly with the Board, within the time specified in § 1003.38”); § 1003.38; § 1240.15 (“Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of an [IJ] to the [BIA] . . . .”) (emphasis added). 55 See 8 C.F.R. § 1003.2(d) (“Any departure . . . occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.”) (emphasis added); § 1003.23(b)(1) (“Any departure . . . occurring after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.”) (emphasis added); 8 C.F.R. § 1003.4 (“Departure . . . subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal . . . .”) (emphasis added). 56 § 1003.3(e).
-16-
regulation. The Third Circuit recently recognized the distinction between departure
and deportation,57 and this Court should follow suit.
Departure and deportation are not synonymous. “‘Departure’ is defined as
the ‘act of leaving,’” whereas “‘[d]eportation’ is the ‘[e]xpulsion of an undesirable
alien from a country.’”58 So while “[t]o ‘depart’ is to ‘go away’ or to ‘leave,’”
“[t]o ‘deport’ is to ‘expel from a country.’”59 Fundamentally, departure is “an
action that implies a volitional, self-motivated act,” whereas deportation is not
even the subject’s act – it is a government’s act.60 Indeed, if a person “departs,” he
causes himself to leave—but if a person “deports,” he causes someone else to
leave. Even Congress recognizes the volitional nature of departure, requiring that
if the IJ orders removal, he must inform the alien of “the consequences for failure
to depart . . . .”61 Particularly with this backdrop of divergent meanings,
the word “departure” rather than “deportation” in 8 C.F.R. § 1003.3(e) is appropriate; it is reasonable to deem an alien who has left the United States of his or her own volition during a deportation proceeding to have waived the right to appeal any determination resulting from those proceedings, while it is less equitable to so deem an alien who was involuntarily removed (whether in accord with the regulations or otherwise).62
57 Patel v. U.S. Att’y Gen., 394 F. App’x 941, 944-45 (3d Cir. 2010) (unpublished). 58 Id. at 945 (citing WEBSTER’S II NEW RIVERSIDE UNIV. DICTIONARY 363-64 (1984)). 59 Id. (citing WEBSTER’S II NEW RIVERSIDE UNIV. DICTIONARY 363-64 (1984)). 60 Id. (citing WEBSTER’S II NEW RIVERSIDE UNIV. DICTIONARY 363-64 (1984)). 61 8 U.S.C. § 1229a(c)(5). 62 Patel, 394 F. App’x at 945.
-17-
Thus, one who “departs” may waive his right to an appeal, but one who is
“deported” cannot.
The regulations do not use “departure” and “deportation” interchangeably.
The Supreme Court recognizes the “familiar principle of statutory construction . . .
that a negative inference may be drawn from the exclusion of language from one
statutory provision that is included in other provisions of the same statute.”63
Indeed, the traditional maxim expressio unius est exclusio alterius (“[t]he
expression of one thing is the exclusion of another”)64 applies with particular force
to the question of whether “departure” can be construed to include “deportation.”
Two of the regulation’s post-departure bars purport to apply specifically
upon deportation (“[a]ny departure . . . including . . . deportation”),65 whereas
§ 1003.3(e) purports to apply simply upon “[d]eparture.”66 Not “any” departure,
and not “including” deportation.67 The government might “give words unorthodox
meanings,”68 but even assuming arguendo that these other departure bars
63 Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006); see also Kucana v. Holder, --- U.S. ---, 130 S. Ct. 827, 838 (2010) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). 64 BLACK’S LAW DICTIONARY 1830 (9th ed. 2009). 65 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1). 66 § 1003.3(e). 67 Id. 68 Carachuri-Rosendo v. Holder, --- U.S. ---, 130 S.Ct. 2577, 2585 (2010) (“But in this case the Government argues for a result that ‘the English language tells us not to expect,’ so we must be ‘very wary of the Government’s position.’”).
-18-
legitimately “acknowledge [that] ‘departure’ is deemed to include ‘deportation,’”69
§ 1003.3(e) simply does not include departure within deportation. And the
“coerced inclusion” of deportation within departure in the other bars “does not call
for” doing the same in § 1003.3(e) because “there is no clear [regulatory]
command to override ordinary meaning.”70
The BIA’s interpretation of “departure” in § 1003.3(e) to include Mr.
Mejia’s forcible removal fails to give meaning to all of the relevant regulatory text;
it is plainly erroneous, or, as the Third Circuit held, “untenable.”71
3. The BIA’s conclusion that, by being deported, Mr. Mejia “departed” the country and “waived” his right to appeal is fundamentally unreasonable and wrong.
The regulation’s plain language speaks for itself, but putting the issue in
perspective shows just how unreasonable the 2012 BIA Decision was:
The government forcibly removed [the petitioner] from the United States, and now claims she abandoned her appeal because she left the country. To state that argument should be to refute it . . . .72
As the Sixth Circuit recently held, “[t]o allow the government to cut off [the
petitioner’s] statutory right to appeal an adverse decision . . . simply by removing
69 Patel, 394 F. App’x at 945. 70 Lopez v. Gonzales, 549 U.S. 47, 55 n.6 (2006). 71 Patel, 394 F. App’x at 944-45 (“To reach its conclusion that under § 1003.3(e) Patel’s deportation acted as a waiver, the BIA necessarily equated the word ‘departure’ with the words ‘deportation’ and/or ‘removed.’ That position is untenable.”). 72 Id. at 245-46 (Kethledge, J., concurring ).
-19-
her . . . [is] a perversion of the administrative process.”73 Of course, no alien can
waive DHS’s right to appeal.74 But under the 2012 BIA Decision, the reverse is
true; “it amounts to saying that, by putting an alien on a bus, the agency may
‘[waive]’ its adversary’s motion.”75 The Supreme Court cautions against such a
concentration of power in the hands of a single branch of government.76 If
§ 1003.3(e) is, as the BIA interpreted it, “[a] procedure that allows the government
to unilaterally terminate a petitioner’s” appeal,77 “[i]t would completely eviscerate”
the right to appeal.78 No doubt, such an interpretation violates “principles of
fundamental fairness.”79 Quite simply, this unreasonable interpretation cannot be
correct and should be rejected.
In conclusion, Mr. Mejia did not intentionally depart the United States—
DHS forced him out. He did not waive his right to appeal. The BIA properly 73 Madrigal v. Holder, 572 F.3d 239, 245 (6th Cir. 2009) (interpreting the 8 C.F.R. § 1003.4 post-departure bar). 74 See Matter of Luis, 22 I. & N. Dec. 747, 752 (BIA 1999) (holding that noncitizen’s departure during government-filed administrative appeal does not withdraw appeal). 75 Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010) (invalidating the § 1003.2(d) post-departure bar, stating “[i]t is unnatural to speak of one litigant withdrawing another's motion.”). 76 Cf. Boumediene v. Bush, 553 U.S. 723, 765-66 (2008) (rejecting argument that would allow “the political branches to govern without legal constraint”). 77 Luna v. Holder, 637 F.3d 85, 90 (2d Cir. 2011) (striking down the § 1003.2(d) post-departure bar). 78 Cf. Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (interpreting 8 C.F.R. § 1003.2(d) to apply only to voluntary departures). 79 Madrigal, 572 F.3d at 245 (“Moreover, principles of fundamental fairness would be violated were we to find, in every case, that section 1003.4 is applicable to pending administrative appeals following the departure of removable aliens regardless of the circumstances of their removal.”).
-20-
exercised jurisdiction over his appeal, and the 2011 BIA Decision should stand.
Simply put, Mr. Mejia should have the opportunity to make his case before the IJ
with effective assistance of counsel.
C. DHS’s post-order attack of the BIA’s jurisdiction was a collateral attack barred by res judicata.
In Guevara,80 this Court faced a procedural history nearly identical to the
present case. As here, the IJ issued a removal order, DHS deported the petitioner,
and the petitioner filed a motion to reopen.81 And as here, the BIA granted
petitioner’s motion without any jurisdictional challenge by DHS.82 And again, as
here, DHS waited until after the BIA rendered an adverse decision to challenge the
BIA’s jurisdiction because DHS deported the petitioner before the BIA’s initial
decision.83
The Supreme Court instructs that “[i]t has long been the rule that principles
of res judicata apply to jurisdictional determinations,” such that “[a] party that has
had an opportunity to litigate the question of subject-matter jurisdiction may not . .
. reopen that question in a collateral attack upon an adverse judgment.”84 In
80 Guevara v. Gonzales, 450 F.3d 173 (5th Cir. 2006). 81 Id. at 174; AR 202-314. Mr. Guevara filed his motion with the BIA, Guevara, 450 F.3d at 174, whereas Mr. Mejia filed his motion with the IJ and appealed to the BIA. AR 150-53. 82 Guevara, 450 F.3d at 174-75; AR 31-33, 122-25. 83 Guevara, 450 F.3d at 175; AR 26-29. 84 Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982) (citations omitted); see also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S.
(continued…)
-21-
Guevara, this Court reiterated: “[i]f the parties against whom [a BIA] judgment
was rendered did not appeal, the judgment becomes final and the [BIA]’s subject
matter jurisdiction is insulated from collateral attack.”85
The Guevara court thereby framed its sole issue as “whether DHS’s motion
to reconsider constitute[d] direct review or a collateral attack,” explaining:
If the motion was part of the direct review process, then res judicata did not apply. On the other hand, if the motion was a collateral attack on the BIA’s decision, it was barred by res judicata. 86
The Court reasoned that “[t]he BIA’s denial of an appeal and its denial of a motion
to reconsider are two separate final orders, each of which require their own
petitions for review,”87 and recognized that “[m]otions to reopen or reconsider in
the immigration context are not appeals to the [BIA] from its own order, but are
more accurately described as collateral attacks on the [BIA]’s order.”88
The Guevara court then held that “DHS’s motion to reconsider constituted a
collateral jurisdictional attack on the BIA’s previous decision to grant Guevara’s
371, 377 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”). 85 Guevara, 450 F.3d at 175 (citing Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992). 86 Id. at 175. 87 Id. at 176 (quoting Jaquez-Vega v. Gonzales, 140 F. App’x 547 (5th Cir. 2005) (unpublished)). 88 Id. at 175 (quoting White v. INS, 6 F.3d 1312, 1315 (8th Cir. 1993)).
-22-
motion to reopen [and it is therefore barred by] res judicata.”89 Because DHS
withheld its jurisdictional objections in the initial briefing, the court held that the
BIA’s original grant of Guevara’s motion to reopen was “proper in every
respect.”90 Similarly, DHS delayed its challenge of the BIA’s jurisdiction in this
case until after the BIA issued its original grant of Mr. Mejia’s motion to reopen;
res judicata thus bars DHS’s collateral attack. This Court should follow its
precedent in Guevara and affirm the 2011 BIA Decision as “proper in every
respect.”
D. DHS cannot litigate in “piecemeal” fashion, first losing on the merits, then seeking procedural default based on a previously-known fact.
The BIA requires that “[a]rguments for consideration on appeal should all be
submitted at one time, rather than in piecemeal fashion.”91 Under BIA precedent, a
motion to reconsider based on a legal argument that could have been raised earlier
in the proceedings will be denied.92
89 Id. at 176; see also Zhenghao Liu v. Holder, 364 F. App’x 90, 92 (5th Cir. 2010) (“[A] party may not collaterally attack a BIA ruling in a petition for review of a motion to reconsider.”). 90 Guevara, 450 F.3d at 176. 91 Matter of Medrano, 20 I. & N. Dec. 216, 219-20 (BIA 1991). 92 Id.; In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider is not a mechanism by which a party may file a new brief before the Board raising additional legal arguments that are unrelated to those issues raised before the Immigration Judge and on appeal. Rather, the ‘additional legal arguments’ that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached by the Board in its decision that may not have been addressed by the parties.”).
-23-
When DHS submitted its brief to the BIA in August 2011, it “inadvertently
failed” to argue that it deported Mr. Mejia many months prior, or that its
deportation deprived the BIA of jurisdiction.93 Nevertheless, a month after the
BIA granted Mr. Mejia’s appeal, four months after DHS filed its brief with the
BIA, five months after Mr. Mejia appealed to the BIA, and six months after itself
deporting Mr. Mejia, DHS finally raised the deportation and jurisdiction issue.94
No doubt, to the extent DHS intended to insist that its deportation of Mr. Mejia
constituted a “departure” resulting in “waiver,” it could have – and should have –
done so much, much earlier.
DHS presented its arguments “in piecemeal fashion,” first litigating the
merits of the motion and then seeking victory by default. Accordingly, the BIA
improperly granted DHS’s December 2011 motion and this Court should reverse.95
93 AR 27, 122-25. 94 AR 26-29. We note the tragically ironic double standard affecting Mr. Mejia: the IJ held that Mr. Mejia’s motion to reopen was not “complete when filed” and insisted that it “does not accept piecemeal litigation”—indeed, the first reason cited for refusing to reopen Mr. Mejia’s case was that his motion was “unaccompanied by an affidavit from [Mr. Mejia] setting forth the agreement entered into with [his prior counsel] and the alleged shortcomings of [their] representation.” AR 194. 95 Cf. Ijemba v. Mukasey, 263 F. App’x 407, 409 (5th Cir. 2008) (unpublished) (rejecting petitioner’s challenge to the BIA’s denial of his challenge to the IJ’s jurisdiction because that challenge was properly considered a motion to reopen and petitioner “failed to explain why he did not present [evidence of the IJ’s lack of jurisdiction] during his removal proceedings”); Ogbemudia v. INS, 988 F.2d 595, 600 (5th Cir. 1993) (rejecting a challenge to the BIA’s denial of a motion to reopen partially because the new evidence that plaintiff submitted was available when deportation proceedings occurred).
-24-
E. Section 1003.3(e) conflicts with Congressional command and is therefore invalid under Chevron and/or Union Pacific.
Each of the post-departure bars (8 C.F.R. §§ 1003.2(d), 1003.3(e), 1003.4,
and 1003.23(b)) is purely a creature of regulation, and each conflicts with
Congressional command. In recent years, almost every Circuit invalidated one or
more of these bars on that basis.96 Facing the validity of the § 1003.3(e) post-
departure bar for the first time, this Court should follow suit and invalidate it as in
conflict with Congressional intent.
1. Section 1003.3(e) is invalid under Chevron because it exceeds statutory authority and is ultra vires.
Challenges to the validity of an agency regulation are governed by the two-
step Chevron97 analysis. First, the Court must examine the plain meaning of the
statute(s) to determine if Congress made its intent clear; if it did, that intent
governs.98 Here, Congress’s intent is clear: aliens have a right to appeal IJ
decisions, irrespective of whether the alien “departs” the country.99 But if the
Court finds Congressional intent unclear, the analysis moves to the second step,
where the Court “must respect the agency’s construction of the statute so long as it
96 Infra Sections VII.E.1, VII.E.2. 97 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). 98 See id. at 842-43; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). 99 Infra Section VII.E.1.a.
-25-
is permissible.”100 Here, the single-member 2012 BIA Decision was not the
agency’s construction, and even if it were, it is still impermissible.101
a. Congress clearly recognizes the right to appeal IJ decisions, irrespective of an alien’s “departure.”
Congress recognized the right to appeal IJ decisions in numerous sections of
the INA and IIRIRA102 but omitted any distinction of that right for individuals who
remain in the United States versus those who depart.103 Congress’s omission of
such a limitation is presumed to be deliberate.104 Moreover, Congress expressly
100 Brown & Williamson, 529 U.S. at 132 (emphasis added) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999), and Auer v. Robbins, 519 U.S. 452, 457 (1997)). 101 Infra Section VII.E.1.b. 102 Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163 (June 27, 1952); Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). 103 E.g., 8 U.S.C. § 1229a(c)(5) (“If the [IJ] decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.”) (emphasis added); § 1229a(b)(6) (The Attorney General shall, by regulation . . . specify the circumstances under which an administrative appeal of a decision or ruling will be considered frivolous and will be summarily dismissed . . . .”) (emphasis added); § 1229a(c)(4)(C) (“[I]f no adverse credibility determination is explicitly made [by the IJ], the applicant or witness shall have a rebuttable presumption of credibility on appeal.”) (emphasis added); § 1229a(c)(7)(C)(iv)(IV); § 1101(a)(47)(B) (An order of deportation becomes final upon either “a determination by the [BIA] affirming such order” or “the expiration of the period in which the alien is permitted to seek review of such order by the [BIA]”) (emphasis added); see also 8 U.S.C. § 1362 (“In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented . . . .”) (emphasis added). 104 See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 (2005) (courts “do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply”); United States v. Johnson, 529 U.S. 53, 58 (2000) (“The proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth”). The Court cannot find that the statute is ambiguous
(continued…)
-26-
requires that if the IJ orders removal, the IJ “shall inform the alien of the right to
appeal that decision and of the consequences for failure to depart under the order
of removal . . . .”105 Particularly from this command, Congressional intent is clear:
the BIA must respect the right to appeal, and although “failure to depart” might
have collateral consequences, “depart[ure]” does not affect the right.106 Otherwise,
Congress would have the IJ “inform the alien of the right to appeal and of the
consequences of his or her departure.”
While this Court has yet to decide whether § 1003.3(e) – or any other post-
departure bar – is invalid under Chevron,107 at least four other circuits have already
invalidated similar post-departure bars (those stating that “departure” results in
“withdrawal” of a motion) under the first Chevron step, finding them in conflict
with Congress’s clear intent (as evidenced by the unqualified statutory grant of the
right to file the motion).108 Their reasoning applies equally here, particularly in
because Congress did not expressly address post-appeal departures; such an approach “would create an ‘ambiguity’ in almost all statutes, necessitating deference to nearly all agency determinations.” See Prestol Espinal v. U.S. Att’y Gen., 653 F.3d 213, 220 (3d Cir. 2011); see also City of Dallas v. FCC, 165 F.3d 341, 353-54 (5th Cir. 1999) (rejecting agency’s attempt to manufacture an ambiguity by arguing Congress was silent). 105 8 U.S.C. § 1229a(c)(5). 106 See id. 107 Toora v. Holder, 603 F.3d 282 (5th Cir. 2010); Ovalles v. Holder, 577 F.3d 288, 295 (5th Cir. 2009) (upholding BIA’s interpretation that it lacks jurisdiction over post-departure sua sponte MTRs, but declining to decide whether the regulation conflicts with the statute). 108 Prestol Espinal v. U.S. Att’y Gen., 653 F.3d 213, 221, 224 (3d Cir. 2011) (“[T]he plain text of the statute . . . makes no exceptions for aliens who are no longer in this country”); William v. Gonzales, 499 F.3d 329, 332 (4th Cir. 2007); Contreras-Bocanegra v. Holder,
(continued…)
-27-
light of the Supreme Court’s recent recognition that the purpose of the motion to
reopen is “to ensure a proper and lawful disposition” and that courts “must be
reluctant” to adopt an interpretation of the statute that would limit this “important
safeguard,” “particularly so when the plain text of the statute reveals no such
limitation.”109 When Congress granted aliens a right to file a motion to reopen and
recognized their right to appeal, it did not limit those rights based on the alien’s
presence in the United States. Section 1003.3(e), just like the other post-departure
bars, stands in direct contradiction. It deprives departed aliens of those rights and
is therefore entirely ultra vires and invalid.110
b. Even Congress was not clear, the single-member 2012 BIA Decision is not entitled to deference.
If the Court finds Congressional command unclear, the second Chevron step
requires that the Court “respect the agency’s construction of the statute so long as
678 F.3d 811 (10th Cir. 2012); Jian Le Lin v. U.S. Att'y Gen., --- F.3d ---, 2012 WL 1860686 (11th Cir. 2012); see also Coyt v. Holder, 593 F.3d 902, 907, 907 n.3 (9th Cir. 2010) (invalidating § 1003.2(d) under Chevron, but limiting its holding to cases where the petitioner had been involuntarily removed). 109 Dada v. Mukasey, 554 U.S. 1, 18 (2008); see also Kucana v. Holder, --- U.S. ---, 130 S.Ct. 827, 834 (2010) (reaffirming that a motion to reopen is an “important safeguard”). 110 Cf. Sung v. Keisler, 505 F.3d 372, 376-77 (5th Cir. 2007) (striking down a BIA interpretation because, contrary to the statute, it distinguished between adjustment of status applications pending before the agency and the immigration court); cf. also Khalid v. Holder, 655 F.3d 363, 367 (5th Cir. 2011) (adopting a statutory interpretation that “adds no unwritten requirements to the text”).
-28-
it is permissible.”111 This step requires evaluation of § 1003.3(e), including the
2012 BIA Decision’s construction of that regulation, and whether it is reasonable,
i.e., whether it “bears a rational relationship to the statutory purposes.”112
One of the chief statutory purposes of IIRIRA is “increasing the accuracy”
of removal decisions by permitting greater opportunity for review, even after
removal.113 “Congress could not have intended to undermine [that purpose] by
preventing aliens from [appealing to] the BIA post-departure while simultaneously
allowing aliens to seek even higher review with courts of appeals.”114
Section 1003.3(e) not only lacks a rational relationship to the statutory purpose, it
is in direct tension with that purpose.
Furthermore, an agency’s interpretation of an ambiguous statute does not
receive Chevron deference if that interpretation raises constitutional questions.115
111 Brown & Williamson, 529 U.S. at 132 (emphasis added) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999), and Auer v. Robbins, 519 U.S. 452, 457 (1997)). 112 See La. Envtl. Action Network v. EPA, 382 F.3d 575, 582 (5th Cir. 2004); Chevron, 467 U.S. at 842-45. 113 See Prestol Espinal, 653 F.3d at 222-23; Coyt, 593 F.3d at 906; William, 499 F.3d at 332 n.3. 114 Prestol Espinal, 653 F.3d at 223. 115 E.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (where an administrative interpretation of a statute invokes the outer limits of Congress’ power, the Court expects a clear indication that Congress intended that result, and that where there is no such indication it will read the statute to avoid the significant constitutional questions raised by such an interpretation and reject the request for administrative deference); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of
(continued…)
-29-
Section 1003.3(e) raises constitutional questions because aliens facing deportation
are entitled to due process under the Fifth Amendment,116 and this protection
includes the right to appeal.117 Constitutional questions are most particularly
implicated here because DHS – not Mr. Mejia – purported to waive Mr. Mejia’s
right to appeal.
But the single-member 2012 BIA Decision is not even the agency’s
construction of the statute. Because the decision was made by a single BIA
member – not designated (much less qualified) to serve as precedent – it carries no
precedential force.118 The Circuit Courts to rule on this matter have unanimously
concluded that such decisions are entitled to mere Skidmore deference, not
heightened Chevron deference,119 in light of the Supreme Court’s 2001 decision in
Mead.120 In cases since Mead, the Fifth Circuit has analyzed single-member BIA
a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”). 116 Landon v. Plasencia, 459 U.S. 21, 32-33 (1982). 117 See, e.g., Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 803-04 (9th Cir. 2004) (“The protections of the Due Process Clause extend to the ability of aliens to seek review of deportation orders entered by [IJs] with the BIA.”). 118 AR 2-3; see 8 C.F.R. § 1003.1(g); Toora v. Holder, 603 F.3d 282, 289 (5th Cir. 2010) (Southwick, J., concurring) (“It takes a majority vote of the Board to make a particular decision of a three-member panel or the en banc Board a precedent.”). 119 Mushtaq v. Holder, 583 F.3d 875, 876-77 (5th Cir. 2009); Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010); Barrios v. Holder, 581 F.3d 849, 859 (9th Cir. 2008); Rotimi v. Gonzales, 473 F.3d 55, 57-58 (2d Cir. 2007) (per curiam); Quinchia v. U.S. Att’y. Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). 120 United States v. Mead, 533 U.S. 218, 237-38 (2001) (stating that Skidmore remained intact after Chevron and that Skidmore deference applies when Chevron deference does not).
(continued…)
-30-
decisions using Skidmore deference, but has yet to finally decide whether such
deference is always appropriate for single-member BIA decisions.121 This Court,
again facing the issue, should follow the other circuits because even “the BIA itself
affords no precedential value to the unreported decisions, [and] the BIA is under a
duty to provide ‘clear and uniform guidance on the proper interpretation and
administration of the [INA],’ and the relevant regulation states that the BIA shall
provide such guidance through precedent decisions.”122
Under the Skidmore standard, “[t]he weight of [an agency’s] judgment in a
particular case will depend upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to control.”123
Here, as addressed in Section VII.B, supra, the 2012 BIA Decision is devoid of
analysis (save a lone “see” citation to § 1003.3(e)), and its implicit reasoning is not
Mead placed crucial “limits [on] Chevron deference owed to administrative practice in applying a statute,” clarifying that agency interpretations promulgated in a non-precedential manner are “beyond the Chevron pale.” Id. at 226, 234. 121 Agholor v. Holder, 454 F. App’x 360, 363 (5th Cir. 2011) (unpublished) (“Without deciding the proper level of deference to afford such decisions, we will apply the lesser, Skidmore standard here, as we have done in the past.”); Rana v. Holder, 654 F.3d 547, 549-50 (5th Cir. 2011); Mushtaq v. Holder, 583 F.3d 875, 876-78 (5th Cir. 2009). 122 Quinchia, 552 F.3d at 1258 (brackets in original); Rotimi, 473 F.3d at 57-58 (deciding that an unpublished BIA decision that does not rely on precedent for its definition of a contested term does not receive Chevron deference, because it is not “promulgated under [the agency’s] authority to make rules carrying the force of law”); see supra note 119 and accompanying text. 123 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
-31-
valid. It cited no BIA precedent,124 and Petitioner finds none on point. The 2012
BIA Decision is wholly unpersuasive.
In conclusion, § 1003.3(e)’s purported “waiver” upon an alien’s “departure”
– particularly if, as the 2012 BIA Decision held, “departure” occurs when the
government deports an alien – is an ultra vires and impermissible rule.
2. The BIA’s interpretation of § 1003.3(e) is invalid under Union Pacific because it is an impermissible contraction of Congressionally-granted jurisdiction.
In Union Pacific, the Supreme Court held that administrative agencies
cannot contract their statutory jurisdiction by regulations or decisions because
“Congress alone controls the [agency]’s jurisdiction.”125 Congress established the
IJs’ jurisdiction to hear motions to reopen,126 specifically recognized the BIA’s
jurisdiction over (non-frivolous) appeals of IJ decisions,127 and codified the right of
judicial review in federal court.128 While this Court has yet to address whether
§ 1003.3(e) – or any other post-departure bar – is invalid under Union Pacific, the
Third Circuit found it to be of doubtful validity,129 and at least three other circuits
124 AR 3. 125 Union Pac. R.R. v. Bd. of Locomotive Eng’rs, --- U.S. ---, 130 S.Ct. 584, 590 (2009). 126 8 U.S.C. § 1229a(C)(7). 127 Supra note 103 (citing statutes). 128 8 U.S.C. § 1252(a). 129 Patel v. U.S. Att’y Gen., 394 F. App’x 941, 945 (3d Cir. 2010) (unpublished) (“[I]n the wake of Union Pacific . . . , it remains uncertain whether the BIA can categorically disavow jurisdiction over appeals by deported or departed petitioners.”).
-32-
have invalidated motion to reopen/reconsider post-departure bars on Union Pacific
grounds.130
The reasoning of these courts applies equally here. Congress established
and recognized jurisdiction over motions to reopen and their appeal, but
§ 1003.3(e) purports to categorically abolish that jurisdiction in cases where the
alien departs the United States before appealing. Therefore, the regulation, as
interpreted by the BIA to limit its jurisdiction, is invalid.
VIII. CONCLUSION
For the reasons set forth above, the Court should find that 8 C.F.R.
§ 1003.3(e) does not bar BIA review of Mr. Mejia’s motion to reopen, vacate the
BIA’s single-member April 10, 2012 decision, and remand the case to the BIA for
it to reinstate its original December 2, 2011 decision granting Mr. Mejia’s motion
to reopen. The Court should also order DHS to allow Mr. Gomez to return home
with his pre-deportation immigration status.131
130 Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) (“The Immigration and Nationality Act authorizes the Board to reconsider or reopen its own decisions. It does not make that step depend on the alien’s presence in the United States . . . The fact remains that since 1996 nothing in the statute undergirds a conclusion that the Board lacks ‘jurisdiction’ - which is to say, adjudicatory competence to issue decisions that affect the legal rights of departed aliens.”); Luna v. Holder, 637 F.3d 85 (2nd Cir. 2011); Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011). The Third Circuit, while invalidating the regulation on other grounds, indicated its support for such reasoning. See Prestol Espinal v. U.S. Att’y Gen., 653 F.3d 213, 217-18 (3d Cir. 2011). 131 See Nken v. Holder, 556 U.S. 418 (2009) (“Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by
(continued…)
-33-
Respectfully submitted, RAUL MEJIA-GOMEZ By his attorneys, /s/ Nicholas G. Grimmer Nicholas G. Grimmer Lead Counsel Adam Auchter Allgood Scott W. Clark Donna M. Haynes MCDERMOTT WILL & EMERY 1000 Louisiana Street, Suite 3900 Houston, Texas 77002 Telephone: 713.653.1700 Email: [email protected] Charles Roth Claudia Valenzuela NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1818 Chicago, Illinois 60604 Telephone: 312.660.1370
Dated: August 15, 2012
facilitation of their return, along with restoration of the immigration status they had upon removal.”); Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, at 660 (BIA 2008) (stating that an alien with a court order vacating the order of removal may be permitted to reenter the United States and “continue to pursue any remedy that falls within the scope of the Court’s mandate.”).
-34-
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Brief of Petitioner
Raul Mejia-Gomez has been served through the CM/ECF system on this 15th day
of August, 2011.
/s/ Nicholas G. Grimmer Nicholas G. Grimmer
-35-
CERTIFICATE OF COMPLIANCE WITH RULE 32(A)
I hereby certify that a copy of the above and foregoing Brief of Petitioner
Raul Mejia-Gomez complies with the following:
1. The type-volume limitation of FED.R.APP.P.32(a)(7)(B) because this
brief contains 8,822 words, excluding the parts of the brief exempted by
FED.R.APP.P.32(a)(7)(B)(iii) and;
2. The typeface requirements of FED.R.APP.P.32(a)(5) and the type style
requirements of FED.R.APP.P.32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2007
in fourteen-point Times New Roman font in the body and size 12.5 font
in footnotes.
/s/ Nicholas G. Grimmer Nicholas G. Grimmer Attorney for Petitioner Raul Mejia-Gomez Dated: August 15, 2012