                Case: 12-14163       Date Filed: 09/03/2013       Page: 1 of 3


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-14163
                                 Non-Argument Calendar
                               ________________________

                                Agency No. A070-607-107


RAFAEL MONTELONGO-CASTILLO,

                                                                                  Petitioner,

                                             versus

U.S. ATTORNEY GENERAL,

                                                                                  Respondent.

                               ________________________

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

                                    (September 3, 2013)

Before BARKETT, MARCUS, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:



       *
         Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
                Case: 12-14163       Date Filed: 09/03/2013      Page: 2 of 3


       Rafael Montelongo-Castillo (“Montelongo”) seeks review of an order by the

Board of Immigration Appeals (“BIA”) dismissing his motion to reopen

deportation proceedings. After review of the record, we affirm. 1

       Montelongo, a native and citizen of Mexico, was ordered deported from the

United States in 1994, prior to the enactment of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub .L. No. 104-208, 110

Stat. 3009. Montelongo reentered the United States without inspection in 1997,

and in August 2012, pled guilty to illegal reentry in violation of 8 U.S.C. §§

1325(a) and 1326(b)(2). In January 2012, he filed a motion to reopen his

deportation proceedings. The Immigration Judge (“IJ”) denied the motion, holding

that she lacked jurisdiction to entertain the motion pursuant to the “departure bar”

regulation, which prevents an IJ or the BIA from considering a motion to reopen

filed by a person who has departed the United States, 8 C.F.R. §§ 1003.23(b)(1),

1003.2(d). The BIA affirmed the IJ’s denial. Montelongo filed a second motion to

reopen, requesting that the BIA reverse the denial based on our decision in Lin v.

U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012), in which we held that the

administratively-created departure bar impermissibly conflicted with the statutory

right to file a motion to reopen removal proceedings codified in IIRIRA. The BIA


       1
        We review the denial of a motion to reopen for abuse of discretion. Ali v. U.S. Att’y
Gen., 443 F.3d 804, 808 (11th Cir. 2006). However, questions of law are reviewed de novo.
Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1233 n.3 (11th Cir. 2012).
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denied the motion, concluding that Lin did not apply to Montelongo’s case because

he was seeking to reopen pre-IIRIRA deportation proceedings, not removal

proceedings.

       “The ‘general rule’ is that the 1996 amendments do not apply to aliens who

are in deportation proceedings prior to April 1, 1997.” Cunningham v. U.S. Att’y

Gen., 335 F.3d 1262, 1266 (11th Cir. 2003) (citing IIRIRA § 309(c)(1)(B)).

IIRIRA explicitly mandates that “[deportation] proceedings (including judicial

review thereof) shall continue to be conducted without regard to such

amendments.” IIRIRA § 309(c)(1)(B). Because Montelongo’s deportation

proceedings concluded in 1994, his case is governed by the pre-1996 Immigration

and Nationality Act, which did not include a statutory right to file a motion to

reopen. 2 Consequently, our decision in Lin, which was based exclusively on the

statutory text of IIRIRA and did not posit any independent right to file a motion to

reopen, is also inapplicable to Montelongo’s case. Accordingly, because

Montelongo left the United States, the BIA correctly determined that it lacked

jurisdiction to consider his motion to reopen pursuant to the departure bar.

       AFFIRMED.



       2
         The BIA was authorized by administrative regulations from its outset in 1940 to reopen
closed cases. See Lin, 681 F.3d at 1238-39; 8 C.F.R. § 90.10 (1940). However, this authority
was discretionary. No pre-1996 regulations or statutes gave aliens a right to file a motion to
reopen.
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