                                                                                  [PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           MAY 23, 2012
                                            No. 11-12506
                                      ________________________              JOHN LEY
                                                                             CLERK

                                           Agency No. A070-899-514




JIAN LE LIN,

llllllllllllllllllllllllllllllllllllllll                                   Petitioner,

                                                     versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllllllllllllllllllllll                                    lRespondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                               (May 23, 2012)

Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.

         *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
WILSON, Circuit Judge:

       We are asked to decide whether the “departure bar” regulation—stating that

the Board of Immigration Appeals (“BIA”) may not entertain a motion to reopen

filed by or on behalf of a person who has departed the United

States—impermissibly conflicts with the Immigration and Nationality Act’s

provision permitting an alien to file one motion to reopen. See 8 U.S.C. §

1229a(c)(7)(A); 8 C.F.R. § 1003.2(d). We join the Third, Fourth, Ninth, and

Tenth Circuits in finding that it does.1 See Contreras-Bocanegra v. Holder, 2012

WL 255879 (10th Cir. 2012) (en banc); Prestol Espinal v. Att’y Gen., 653 F.3d

213 (3d Cir. 2011); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010); William v.

Gonzales, 499 F.3d 329 (4th Cir. 2007).

                                               I.

       Petitioner Jian Le Lin is a native of China who illegally entered the United

States in 1992. On November 2, 1998, Lin was issued a Notice to Appear and was

charged as an alien present in the United States who had not been admitted or

paroled, and subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). On

       1
         The Sixth and Seventh Circuits, when presented with the question we confront in this
case, addressed the validity of the BIA’s interpretation of the departure bar. Relying on Union
Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009), they found it impermissible
for the BIA to treat the departure bar as divesting the agency of jurisdiction. See Pruidze v.
Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010).


                                               2
March 29, 1999, Lin’s application for asylum was denied, and he was ordered to

be removed to China. On July 23, 2002, the BIA affirmed that order.

       On December 27, 2010, Lin filed a motion to reopen his removal

proceedings with the BIA. The motion was predicated on a request for asylum

based on changed country conditions.2 See 8 U.S.C. § 1158(a)(2)(D). He also

requested that the BIA exercise its sua sponte authority to reopen proceedings.

Lin then requested a stay of removal, which was denied. On April 7, 2011, Lin

was removed from the country. On May 5, 2011, the BIA determined that Lin’s

motion to reopen should be considered withdrawn because of his departure,

relying upon Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 660 (BIA 2008)

(interpreting 8 C.F.R. § 1003.2(d) as divesting the BIA of jurisdiction to hear

motions to reopen from persons outside the country). Lin now petitions for

review.

                                                II.

           In 1940, the Attorney General established the BIA, the highest

administrative body for applying immigration laws. In addition to having the

       2
         Generally a petitioner must file a motion to reopen within ninety days of a final order, 8
U.S.C. § 1229a(c)(7)(C), but there is no time limit on a motion to reopen if it relates to an asylum
application that “is based on changed country conditions arising in the country of nationality or
the country to which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also Pllumi v. Att’y Gen., 642 F.3d 155, 158 n.4 (3d Cir. 2011).

                                                 3
power to hear appeals from certain types of immigration decisions, the BIA was

also empowered with the ability to reopen closed cases. See 8 C.F.R. § 90.10

(1940) (authorizing the BIA to hear motions to reopen). In 1952, the Attorney

General constrained the BIA’s discretion to hear motions to reopen by

promulgating a departure bar—a regulation that added a physical presence

requirement for consideration of a petitioner’s motion to reopen. 8 C.F.R. § 6.2

(1952) (stating that the departure of an alien from the United States “shall

constitute a withdrawal of such motion [to reopen]”). In 1961, United States

Courts of Appeals were given the authority to entertain petitions for review of

final administrative orders; that authority was similarly confined to consideration

of petitions from persons present in the United States. 8 U.S.C. § 1105a(c) (1962).

      In 1996, the Attorney General promulgated a regulation establishing that a

petitioner could file only one motion to reopen and that generally such a motion

had to be made within ninety days of the issuance of a final administrative

decision. 8 C.F.R. § 3.2(c)(2) (1997). That same year, Congress enacted the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-549. The IIRIRA, codifying the

Attorney General’s recently established regulations, stipulated that an alien could

file one motion to reopen, 8 U.S.C. § 1229a(c)(7)(A), and that such a motion was

                                          4
generally required to be filed within a ninety-day window, id. § 1229a(c)(7)(C)(i).

IIRIRA also repealed the judicial departure bar and an accompanying provision

that provided for an automatic stay of removal during the pendency of a petition

for judicial review. In 1997, the Attorney General established regulations

implementing IIRIRA, including an administrative departure bar for motions to

reopen. 8 C.F.R. § 3.2(d) (1997).

                                          III.

      We evaluate whether an agency’s regulation impermissibly conflicts with its

governing statute by employing the two-step analysis of Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). The first

step of our inquiry is to ask “whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, 467 U.S. at 842–43, 104 S. Ct. at 2781.

If the statute is silent or ambiguous regarding a certain question at issue, we ask

whether the agency’s answer is based on a permissible construction of the statute.

Id. at 843, 104 S. Ct. at 2782.

      “We begin with the familiar canon of statutory construction that the starting

point for interpreting a statute is the language of the statute itself.” Consumer

                                           5
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051,

2056 (1980). IIRIRA plainly provides that “[a]n alien may file one motion to

reopen proceedings.” 8 U.S.C. § 1229a(c)(7)(A). Other than the stated numerical

limitation, IIRIRA’s only other restriction on that ability is 8 U.S.C. §

1229a(c)(7)(C)(i): “Except as provided in this subparagraph, the motion to reopen

shall be filed within 90 days of the date of entry of a final administrative order of

removal.” There are no geographical restrictions included in the statute that would

qualify the circumstances under which an alien may file one motion to reopen.

Nor does the term “alien” impute any such territorial restriction, given that the

INA defines “alien” broadly as “any person not a citizen or national of the United

States.” 8 U.S.C. § 1101(a)(3).

      The Attorney General argues that because IIRIRA does not specifically

address the issue of an alien’s physical presence in the United States, Congress has

not spoken to the issue and thus the Attorney General is free to regulate in the

statutory gap. We disagree. Congress clearly considered and included some

restrictions on the ability to file a motion to reopen but chose not to make a

limitation based on the alien’s physical location. As the Third Circuit stated:

      [T]he Supreme Court has explained, “[w]hen Congress provides
      exceptions in a statute, it does not follow that courts have authority to
      create others. The proper inference . . . is that Congress considered

                                          6
      the issue of exceptions and, in the end, limited the statute to the ones
      set forth.” United States v. Johnson, 529 U.S. 53, 58, 120 S. Ct.
      1114, 1118 (2000). That inference is particularly strong when, as
      here, Congress specifically codified other regulatory limitations
      already in existence. Congress did not codify the post-departure bar
      notwithstanding its long history. Neither we nor the agency should
      be permitted to override Congress’ considered judgment.

Presto Espinal, 653 F.3d at 221–22 (alterations other than the first in original); see

also William, 499 F.3d at 333 (“[T]he fact that Congress provided for specific

limitations on the right to file a motion to reopen bolsters the conclusion that §

1229a(c)(7)(A) cannot be read to except from its terms those aliens who have

departed the country.” (citing Johnson, 529 U.S. at 58, 120 S. Ct. at 1118)).

      Furthermore, “[a] familiar principle of statutory construction . . . is 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.”

Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S. Ct. 2749, 2765 (2006). The

subsection of IIRIRA regarding deadlines for filing motions to reopen states that

the ninety-day limit does not apply to such motions filed by victims of domestic

violence, provided that “the alien is physically present in the United States at the

time of filing the motion.” 8 U.S.C. § 1229a(c)(7)(C)(iv)(IV). Therefore, we can

draw the negative inference that “Congress knew how to include a requirement of

physical presence when it wished to do so,” William, 499 F.3d at 333, and

                                           7
intentionally chose not to require such presence for a motion to reopen, except in

the specified circumstances.

      Our conclusion that Congress intended to ensure aliens the right to file one

motion to reopen regardless of their geographical location is further bolstered by

IIRIRA’s amendment scheme. As we outlined above, prior to the enactment of

IIRIRA in 1996, both a statutory judicial departure bar and a regulatory

administrative departure bar existed for motions to reopen. The judicial departure

bar was accompanied by an automatic stay provision that prevented an alien from

being removed while his petition to reopen was pending. One of Congress’s

express purposes in passing IIRIRA was “to make it . . . easier to remove

deportable aliens from the United States.” H.R. Rep. No. 104-469, pt. 1, at 157

(1996). To that end, IIRIRA eliminated the automatic stay

provision—effectuating the goal of prompt removal—as well as the judicial

departure bar—removing a disincentive for aliens to leave the country. Congress

made a parallel choice regarding the administrative departure bar. IIRIRA

codified the regulation granting a right to a motion to reopen, thus “transform[ing]

the motion to reopen from a regulatory procedure to a statutory form of relief

available to the alien.” Dada v. Mukasey, 554 U.S. 1, 14, 128 S. Ct. 2307, 2316

(2008). In doing so, Congress chose to exclude the administrative departure bar,

                                         8
just as it had discarded the judicial departure bar.

      This exclusion of the departure bar makes sense in the context of IIRIRA’s

other provisions. IIRIRA mandates that the Attorney General must remove an

alien subject to a final order of removal within ninety days of the order being

entered. 8 U.S.C. § 1231(a)(1)(A). Of course, IIRIRA also gives an alien the right

to file a motion to reopen at any time before the ninety-day mark. 8 U.S.C. §

1229a(c)(7)(C)(i). Regarding this relationship, the Ninth Circuit expressed:

      It would completely eviscerate the statutory right to reopen provided
      by Congress if the agency deems a motion to reopen constructively
      withdrawn whenever the government physically removes the
      petitioner while his motion is pending before the BIA. The only
      manner in which we can harmonize the provisions simultaneously
      affording the petitioner a ninety day right to file a motion to reopen
      and requiring the alien’s removal within ninety days is to hold,
      consistent with the other provisions of IIRIRA, that the physical
      removal of a petitioner by the United States does not preclude the
      petitioner from pursuing a motion to reopen.

Coyt, 593 F.3d at 907. We agree.

      In conclusion, we find that the plain language of the statute, the

statutory structure, and the amendment scheme all point to one conclusion:

IIRIRA guarantees an alien the right to file one motion to reopen, and the

departure bar impermissibly undercuts that right. We therefore grant Lin’s

petition for review and remand this case to the BIA for proceedings



                                        9
consistent with this opinion.3

       PETITION GRANTED; REMANDED.




       3
         Because we grant Lin’s petition on the ground that the post-departure bar regulation
conflicts with 8 U.S.C. § 1229a(c)(7)(A), we need not address Lin’s alternative argument that the
BIA’s interpretation of the departure bar as a jurisdictional limitation is impermissible.

                                           10
