Argued and Submitted, Pasadena, California March 4,
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A056-361-534.
The panel granted Jasbir Singh Toor's petition for review of the Board of Immigration Appeals' decision dismissing his appeal of an Immigration Judge's order denying his motion to reopen or reconsider on the ground that the IJ and BIA lacked jurisdiction under the regulatory departure bars because he voluntarily departed the United States during removal proceedings.
The panel held that two pre-IIRIRA regulations concerning motions to reopen or reconsider made before an IJ (8 C.F.R. § 1003.23(b)(1)) and before the BIA (8 C.F.R. § 1003.2(d)), referred to as the departure bars, are invalid irrespective of the manner in which the noncitizen departed. The panel analyzed the unpublished decision in Toor's case under Chevron because it was directly controlled by Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008), which held that the departure bars apply after IIRIRA even though the regulations predated IIRIRA. The panel held that the text of IIRIRA made clear that the statutory right to file a motion to reopen or reconsider is not limited by whether the individual had departed, and that the bar is invalid irrespective of how the noncitizen departed the United States.
Marie L. Kayal (argued), The Law Office of Marie L. Kayal, Burlingame, California, for Petitioner.
Ann C. Varnon (argued), Trial Attorney; Tony West, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; and Sunah Lee, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: Stephen Reinhardt, N. Randy Smith, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Reinhardt.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which inter alia provides all noncitizens a statutory guarantee that they may file " one motion to reconsider a decision that the alien is removable from the United States," 8 U.S.C. § 1229a(c)(6)(A),
and " one motion to reopen proceedings," 8 U.S.C. § 1229a(c)(7)(A). See Dada v. Mukasey, 554 U.S. 1, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (" [T]he statutory text is plain insofar as it guarantees to each alien the right to file 'one motion to reopen proceedings under this section.'" (citation omitted)). That guarantee was limited in some ways -- with number, content, and time restrictions -- but not in any respect ...