         13-3717
         Gaytan-Aragon v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A073 467 405
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT
                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of June, two thousand fifteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DENNY CHIN,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       GILBERTO GAYTAN-ARAGON,
15                Petitioner,
16
17                          v.                                  13-3717
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.*
22       _______________________________________
23       FOR PETITIONER:        Susan N. Burgess, Law Office of
24                              Susan N. Burgess, Independence, KY.
25
26       FOR RESPONDENT:                   Stuart F. Delery, Assistant Attorney
27                                         General; David V. Bernal, Assistant


                      *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is automatically
             substituted for former Attorney General Eric H. Holder, Jr.
 1                          Director; Anthony C. Payne, Senior
 2                          Litigation Counsel, Office of
 3                          Immigration Litigation, United
 4                          States Department of Justice,
 5                          Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Petitioner Gilberto Gaytan-Aragon, a native and citizen

12   of Mexico, seeks review of a September 18, 2013 order of the

13   BIA, affirming the May 3, 2013 decision of an Immigration

14   Judge (“IJ”), which dismissed his motion for sua sponte

15   reopening for lack of jurisdiction.     In re Gilberto

16   Gaytan-Aragon, No. A073 467 405 (B.I.A. Sept. 18, 2013),

17   aff’g No. A073 467 405 (Immig. Ct. N.Y. City May 3, 2013).

18   We assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       We review the BIA’s decision affirming an IJ’s denial

21   of a motion to reopen for abuse of discretion.     Iavorski v.

22   INS, 232 F.3d 124, 128 (2d Cir. 2000); Ali v. Gonzales, 448

23   F.3d 515, 517 (2d Cir. 2006) (per curiam).    An alien seeking

24   to reopen proceedings is required to file a motion to reopen

25   no later than 90 days after the date on which the final

26   administrative decision was rendered.     See 8 U.S.C.

                                  2
 1   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).       The agency may

 2   also reopen proceedings “at any time” under its sua sponte

 3   authority.     8 C.F.R. §§ 1003.23(b)(1), 1003.2(a).    However,

 4   under the departure bar, “[a] motion to reopen or to

 5   reconsider shall not be made by or on behalf of a person who

 6   is the subject of removal, deportation, or exclusion

 7   proceedings subsequent to his or her departure from the

 8   United States.     Any departure from the United States,

 9   including the deportation or removal of a person who is the

10   subject of exclusion, deportation, or removal proceedings,

11   occurring after the filing of a motion to reopen or a motion

12   to reconsider shall constitute a withdrawal of such motion.”

13   8 C.F.R. §§ 1003.23(b)(1), 1003.2(d).       We have accorded

14   substantial deference to the BIA’s interpretation that the

15   departure bar is a jurisdictional limitation, which applies

16   to motions for sua sponte reopening.       See Xue Yong Zhang v.

17   Holder, 617 F.3d 650, 660 (2d Cir. 2010).

18       Gaytan-Aragon challenges the application of the

19   departure bar to his motion for sua sponte reopening filed

20   with the IJ.     He asserts that this Court has approved of the

21   departure bar’s application only to motions for sua sponte

22   reopening filed with the BIA.       Although he contends that the


                                     3
 1   regulations governing application of the departure bar in

 2   the context of motions filed directly with the BIA differ

 3   from those governing application in the IJ context, “[t]hese

 4   regulations are ‘substantively identical’ in terms of the

 5   authority they provide to IJs and the BIA to consider

 6   motions to reopen.”   Id. at 657 n.5.       Compare 8 C.F.R.

 7   § 1003.23(b)(1), with 8 C.F.R. § 1003.2(d).       His argument is

 8   therefore without merit.

 9       Gaytan-Aragon also challenges the application of the

10   departure bar because he filed his motion while physically

11   present in the United States.       He argues, based on Xue Yong

12   Zhang, that the regulations governing the agency’s sua

13   sponte authority permit the exercise of that power at “any

14   time,” see 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1), and that

15   “the BIA apparently understands the phrase ‘at any time’ to

16   mean ‘at any time that the alien in question is physically

17   present in the United States,’” 617 F.3d at 660.

18   Gaytan-Aragon’s reliance on Xue Yong Zhang, however, is

19   misplaced.

20       In Xue Yong Zhang, we accorded substantial deference to

21   the BIA’s interpretation that the departure bar applied to

22   motions for sua sponte reopening.       Id. at 652.   Xue Yong


                                     4
 1   Zhang, however, involved application of the second prong of

 2   the departure bar, under which “[a]ny departure from the

 3   United States . . . after the filing of a motion to reopen

 4   . . . constitute[s] a withdrawal of such motion.”     Id. at

 5   659 n.9 (alterations in original, quotations marks omitted).

 6   The petitioner in Xue Yong Zhang filed his motion for sua

 7   sponte reopening while in the United States but was removed

 8   prior to the BIA’s adjudication of his motion.     Id. at 652.

 9   Although the BIA initially granted Xue Yong Zhang’s motion,

10   it subsequently held that it lacked jurisdiction to do so

11   because he was not physically present in the United States

12   at the time of the adjudication and, thus, his motion had

13   been effectively withdrawn.    Id.   Because Xue Yong Zhang

14   concerned the withdrawal provision of the departure bar, the

15   petitioner’s physical presence in the United States at the

16   time of the adjudication of the motion to reopen was

17   determinative.   Id. at 663.

18       To the contrary, Gaytan-Aragon is not subject to the

19   withdrawal provision of the departure bar; rather, the

20   agency found that it lacked jurisdiction under the first

21   prong of the departure bar because Gaytan-Aragon departed

22   from the United States following the conclusion of his

23   deportation proceedings.   See 8 C.F.R. § 1003.23(b)(1).
                                    5
 1   Gaytan-Aragon’s unsupported assertion that the departure bar

 2   does not apply to motions to reopen filed by illegal

 3   reentrants like himself is simply incorrect.    See, e.g.,

 4   Matter of G-N-C-, 22 I.&N. Dec. 281, 283-84 (B.I.A. 1998)

 5   (applying departure bar to motion to reopen filed inside the

 6   United States after an illegal reentry); Matter of

 7   Yih-Hsiung Wang, 17 I.&N. Dec. 565 (B.I.A. 1980) (same).       To

 8   find otherwise would create perverse incentives under which

 9   an alien who complied with a deportation order would be

10   precluded from requesting sua sponte reopening from outside

11   the United States, whereas an alien who illegally reentered

12   the country after being deported would not.

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any stay of

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DENIED as moot.    Any pending request for

18   oral argument in this petition is DENIED in accordance with

19   Federal Rule of Appellate Procedure 34(a)(2), and Second

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24


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