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Mendiola v. Holder

October 28, 2009

EDDIE MENDIOLA, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

The opinion of the court was delivered by: Baldock, Circuit Judge.

PUBLISH

Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.

Petitioner Eddie Mendiola petitions this Court to review the Board of Immigration Appeals' (BIA or Board) denial of his second motion to reopen his removal proceedings. As a threshold matter, Petitioner argues the BIA erred in holding that 8 C.F.R. § 1003.2(d) proscribed its jurisdiction to entertain his motion to reopen. Section 1003.2(d) provides:

A motion to reopen or a motion to reconsider [before the BIA] 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. 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.

See also 8 C.F.R. § 1003.23(b)(1) (containing an identical post-departure bar to motions to reopen or reconsider before an immigration judge). Petitioner further contends that, in light of his former attorney's alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: "[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened."

We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide "constitutional claims or questions of law raised upon a petition for review." The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009), and we therefore deny the petition for review.

I.

Petitioner became a lawful permanent resident of the United States in 1989. The Department of Homeland Security (DHS) initiated removal proceedings against him in 2004 based on, among other things, two state convictions for possession of steroids. After an administrative hearing, an immigration judge (IJ) ruled Petitioner removable and ordered him removed to Peru.*fn1 Petitioner appealed the IJ's decision to the BIA. The BIA affirmed. Petitioner then filed a petition for review with us, which we denied. Mendiola v. Gonzales, 189 Fed. App'x. 810 (10th Cir. 2006) (unpublished). While his petition for review was pending, Petitioner was removed from the United States in March 2005. He returned illegally, however, and was detained on a charge of Re-entry after Removal for an Aggravated Felony in violation of 8 U.S.C. § 1326.*fn2

After he returned to the United States illegally and while in federal custody, Petitioner in 2007 filed his first motion to reopen with the BIA. The BIA determined that 8 C.F.R. § 1003.2(d) deprived it of jurisdiction to consider Petitioner's motion to reopen because the regulation prohibits a person who is the subject of removal proceedings from filing a motion to reopen subsequent to his departure from the country. The BIA also noted that his motion, aside from being jurisdictionally barred, was untimely because Petitioner, contrary to § 1003.2(c)(2), filed it well beyond 90 days after the final 2004 administrative order that made him removable. Petitioner in 2007 filed another petition for review in our court. In his opening brief, Petitioner failed to argue that § 1003.2(d) did not apply to him. We, therefore, refused to consider this argument and deemed Petitioner's motion barred. Mendiola v. Mukasey, 280 Fed. App'x. 719, 722 (10th Cir. 2008) (unpublished).

At some point after our denial of Petitioner's second petition for review, he obtained new counsel. New counsel in 2008 filed a second motion to reopen Petitioner's case with the BIA. Petitioner based his second motion to reopen upon his former attorney's ineffectiveness and a California court's reduction of his second steroid possession conviction from a felony to a misdemeanor in 2007. DHS opposed Petitioner's motion. The BIA ultimately denied Petitioner's second motion to reopen, concluding again that Petitioner was "precluded by 8 C.F.R. § 1003.2(d) from reopening proceedings and [it] lack[ed] authority to reopen or reconsider sua sponte pursuant to 8 C.F.R. § 1003.2(a)." The BIA also noted that, in any case, Petitioner's motion was, again, untimely and now also numerically barred under § 1003.2(c)(2) because "an alien may only file one motion to reopen removal proceedings . . . and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." Petitioner now brings the present petition of review, challenging the BIA's conclusion that it could not properly consider the arguments raised in his second motion to reopen.

II.

The Attorney General in 1952 first promulgated the regulatory post-departure bar to motions to reopen or reconsider before the BIA and an IJ: "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 deportation proceedings subsequent to his departure from the United States." 17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952) (originally codified at 8 C.F.R. § 6.2); see 8 C.F.R. § 1003.2(d) (containing an identical, current limit on motions to reopen and reconsider exclusion, deportation, or removal proceedings before the BIA); id. § 1003.23(b)(1) (containing an identical, current limit on motions to reopen and reconsider exclusion, deportation, or removal proceedings before an IJ); see also In re Armendarez-Mendez, 24 I. & N. Dec. 646, 648 (BIA 2008) (detailing the history of the post-departure bar to motions to reopen and reconsider). In 1961, Congress placed a similar statutory limit on federal courts: "An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order." 8 U.S.C. § 1105a(c) (1962) (repealed). Consequently, for fifty years the BIA has consistently followed this "jurisdictional principle," holding "that reopening is unavailable to any alien who departs the United States after being ordered removed." Armendarez-Mendez, 21 I. & N. Dec. at 648.

Congress, in September 1996, passed significant immigration reform known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Pub. L. No. 104-208, 110 Stat. 3009; see also Rosillo-Puga, 580 F.3d at 1152. First, Congress "repealed the statutory bar to judicial review of deportation orders when the alien had departed the country. . . ." Rosillo-Puga, 580 F.3d at 1152 (emphasis added). Second, Congress incorporated in the IIRIRA the Attorney General's recently promulgated regulatory numerical and time limits on motions to reopen and reconsider before an IJ and the BIA: "An alien may file one motion to reopen proceedings under this section," which must generally be filed "within 90 days of the date of entry of the final administrative order of removal." 8 U.S.C. §§ 1229a(c)(7)(A) and (7)(C)(I). Congress did not, however, include any explicit post-departure bar to judicial review, which had previously existed in the former § 1105a(c), nor any explicit post-departure bar to motions to reopen or reconsider before the BIA and an IJ. ...


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