     Case: 09-60955 Document: 00511395833 Page: 1 Date Filed: 02/28/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                             February 28, 2011

                                No. 09-60955                  Lyle W. Cayce
                                                                   Clerk

YOLANDA ELIZABETH LEMUS–REYES,

                                          Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                          Respondent




                    Petition for Review of an Order of the
                       Board of Immigration Appeals




Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      Yolanda Lemus–Reyes petitions this court for review of the Board of
Immigration Appeals’ order affirming the Immigration Judge’s dismissal of a
motion to reopen her deportation proceedings, in which Lemus–Reyes had been
ordered deported in absentia. The Board held that the Immigration Judge
lacked jurisdiction to consider the motion because jurisdiction over the
proceedings had vested with the Board by virtue of an earlier appeal by
Lemus–Reyes from a prior denial by the Immigration Judge of a motion to
reopen. We deny Lemus–Reyes’ petition for review.
    Case: 09-60955 Document: 00511395833 Page: 2 Date Filed: 02/28/2011




                                  No. 09-60955

                              I. BACKGROUND
      Petitioner Yolanda Lemus–Reyes is a native citizen of Guatemala who
entered the United States in September 1988, when she was 16 years old. She
was detained by Immigration and Naturalization Service (“INS”) officers and
served with an Order to Show Cause, alleging that she was subject to
deportation under former section 241(a)(2) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1251(a)(2) (1988), for entering the United States without
inspection. In October 1988, the Executive Office for Immigration Review in
Harlingen, Texas mailed Lemus–Reyes a Notice to Appear for her deportation
hearing, but she did not receive it.        Lemus–Reyes did not appear at the
scheduled hearing on October 25, 1988, and the Immigration Judge (“IJ”)
ordered her deported in absentia.
      Lemus–Reyes learned of the deportation order in 2001, when she
unsuccessfully applied for an adjustment of her immigration status on the basis
of her marriage to a United States citizen. In 2002, Lemus–Reyes filed a motion
in the Immigration Court to reopen her deportation proceedings and to rescind
her in absentia deportation order, contending that she had not received notice
of the hearing because the notice was sent to the wrong address. The IJ denied
the motion on February 13, 2003, finding that, even if notice had been sent to the
wrong address, Lemus–Reyes failed to prove that she actually resided during the
relevant period at the address that she had given to the INS. Lemus–Reyes
appealed to the Board of Immigration Appeals (“Board”). On March 25, 2004,
the Board adopted and affirmed the IJ’s decision, dismissing the appeal.
      In December 2006, nearly two years later, Lemus–Reyes filed a motion
with the Board to reopen the Board’s decision on the basis that she had received


                                        2
    Case: 09-60955 Document: 00511395833 Page: 3 Date Filed: 02/28/2011




                                  No. 09-60955

ineffective assistance of counsel. The Board denied the motion as untimely. See
8 C.F.R. § 1003.2(c)(2) (in general, a motion to reopen any matter previously the
subject of a final decision by the Board must be filed no later than 90 days after
the date of that decision).
      In June 2008, Lemus–Reyes filed a second motion with the IJ to reopen
and rescind the 1988 in absentia deportation order. Lemus–Reyes argued again
that she did not receive notice of her deportation hearing, and maintained that
during the relevant period, she resided at the address that she had given to the
INS. She also argued that she received ineffective assistance of counsel in her
previous effort to reopen proceedings. The IJ denied the motion to reopen,
holding that he did not have jurisdiction over the proceedings because
jurisdiction vested with the Board when Lemus–Reyes appealed from the IJ’s
denial of her first motion to reopen the underlying deportation proceedings in
2003. Lemus–Reyes appealed to the Board, challenging the IJ’s determination
that it did not have jurisdiction over her second motion to reopen.
      The Board noted that, under agency regulations, its jurisdiction
commences upon the filing of an appeal, and that it retains jurisdiction over any
matter if it is the last body to render a decision. See 8 C.F.R. §§ 1003.1(b),
1003.2(a), 1003.23(b)(1). Because the Board was the last body to render a
decision in Lemus–Reyes’ deportation proceedings, the Board held that the IJ
correctly concluded that jurisdiction over the proceedings had vested with the
Board, and that the IJ therefore lacked jurisdiction to consider Lemus–Reyes’
second motion to reopen. Accordingly, the Board affirmed the IJ’s decision and
dismissed Lemus–Reyes’ appeal. Lemus–Reyes petitioned this court for review




                                        3
    Case: 09-60955 Document: 00511395833 Page: 4 Date Filed: 02/28/2011




                                  No. 09-60955

of the Board’s conclusion that the IJ lacked jurisdiction to hear her second
motion to reopen.
                               II. DISCUSSION
      We apply a “highly deferential abuse of discretion standard” when
reviewing the Board’s denial of a motion to reopen. Lara v. Trominski, 216 F.3d
487, 496 (5th Cir. 2000). We will affirm the Board’s decision as long as it is not
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006) (citation and internal quotation marks omitted). Although we review the
Board’s conclusions of law de novo, where the Board’s conclusion “embodies the
Board’s interpretation of an ambiguous provision of a statute that it
administers,” the Board’s interpretation “is entitled to the deference prescribed
by Chevron U.S.A. Inc. v. Natural Resources Defense Council[, 467 U.S. 837
(1984)].”   Singh, 436 F.3d at 487.     Similarly, “[c]ourts grant an agency’s
interpretation   of   its   own   regulations    considerable    legal   leeway.”
Navarro–Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (quoting
Barnhart v. Walton, 535 U.S. 212, 217 (2002)). “However, while an agency
interpretation of a regulation is entitled to due deference, the interpretation
must rationally flow from the language of the regulation.” Id. (citation and
internal quotation marks omitted).
      Lemus–Reyes’ deportation proceedings were conducted in absentia under
former section 242(b) of the Immigration and Nationality Act (INA), formerly




                                        4
     Case: 09-60955 Document: 00511395833 Page: 5 Date Filed: 02/28/2011




                                     No. 09-60955

codified at 8 U.S.C. § 1252(b).1 See In re Gonzalez–Lopez, 20 I. & N. Dec. 644,
646 (BIA 1993) (procedures in section 242(b) of the INA apply “where an in
absentia order is made in . . . deportation proceedings following service or
attempted service of the notice of a hearing, for which the alien failed to appear,
made prior to June 13, 1992”). Under this section:
      If any alien has been given a reasonable opportunity to be present
      at a [deportation] proceeding under this section and without
      reasonable cause fails or refuses to attend or remain in attendance
      at such proceeding, the special inquiry officer may proceed to a
      determination in like manner as if the alien were present.
8 U.S.C. § 1252(b) (1988). Where an immigration judge conducts a deportation
hearing in absentia, an alien can move to have the immigration judge reopen the
proceedings, which will be granted where the alien demonstrates “reasonable
cause” for her failure to appear at the previous hearing. Williams–Igwonobe v.
Gonzales, 437 F.3d 453, 455 (5th Cir. 2006) (citing In re Haim, 19 I. & N. Dec.
641, 642 (BIA 1988)). An alien moving to reopen must present new evidence
that was not available to the IJ when he made his initial decision. Haim, 19 I.
& N. Dec. at 642.
      No time or numerical limits apply to motions to reopen proceedings to
vacate an order of deportation entered in absentia pursuant to former section
242(b) of the INA. See In re Cruz–Garcia, 22 I. & N. Dec. 1155, 1159 (BIA 1999).
Consequently, Lemus–Reyes was entitled, in theory, to file a second motion to
reopen with the IJ to seek rescission of her in absentia order of deportation, and
there was no time limit for her to do so. At issue in this case is whether, once



      1
        Section 242(b) of the INA has been superseded by subsequent statutory amendments.
See In re Cruz–Garcia, 22 I. & N. Dec. 1155, 1156 n.1 (BIA 1999).

                                           5
    Case: 09-60955 Document: 00511395833 Page: 6 Date Filed: 02/28/2011




                                  No. 09-60955

Lemus–Reyes appealed to the Board from the IJ’s denial of her first motion to
reopen, jurisdiction over the proceedings vested with the Board, depriving the
IJ of jurisdiction to consider her second motion to reopen.
      The Board’s position in this case is consistent with agency regulations and
the Board’s interpretation thereof, which provide that an IJ has jurisdiction to
consider motions to reopen only until an appeal has been filed with the Board.
See 8 C.F.R. § 1003.23(b)(1) (“An Immigration Judge may . . . reopen or
reconsider any case in which he or she has made a decision, unless jurisdiction
is vested with the Board of Immigration Appeals.”); see also In re Valles–Perez,
21 I. & N. Dec. 769, 771 (BIA 1997) (“It is normally true in immigration
proceedings that once an appeal is filed with the Board of Immigration Appeals,
the Immigration Court . . . loses jurisdiction over the matter.”); In re Patino, 23
I. & N. Dec. 74, 76 (BIA 2001) (“[w]ithin the bounds of statute and regulation,
and until such time as an appeal is properly before the Board, the Immigration
Judge has continuing jurisdiction to entertain motions regarding proceedings
that were previously before the Immigration Judge”). The regulations further
provide that the Board has jurisdiction to reopen and reconsider cases “in which
it has rendered a decision,” and that a “request to reopen or reconsider any case
in which a decision has been made by the Board . . . must be in the form of a
written motion to the Board.” 8 C.F.R. § 1003.2(a). Accordingly, the Board has
held that once an appeal has been filed with the Board, all subsequent motions
must be filed with the Board. See In re Aviles, 15 I. & N. Dec. 588, 588 (BIA
1976).
      The Board relied on these regulations, as well as its prior caselaw, in
concluding that the IJ lacked jurisdiction over Lemus–Reyes’ second motion to


                                        6
     Case: 09-60955 Document: 00511395833 Page: 7 Date Filed: 02/28/2011




                                    No. 09-60955

reopen with the IJ because the Board was the last to render a decision in the
case. See 8 C.F.R. § 1003.2(a); In re Mladineo, 14 I. & N. Dec. 591, 592 (BIA
1974).
      Lemus–Reyes has put forth no basis for finding the Board’s interpretation
of the governing regulations in this context to be unreasonable. Moreover, the
Board’s position in this case does not conflict with Cruz–Garcia’s holding that
agency regulations impose no numerical or time limits on motions to reopen in
absentia deportation proceedings conducted under former INA section 242(b).
22 I. & N. Dec. at 1159. Considered together with 8 C.F.R. § 1003.23(b)(1),
which provides that an Immigration Judge may reopen proceedings until
jurisdiction is vested with the Board, Cruz–Garcia and the Board’s decision in
this case may be read as requiring an alien seeking rescission of a deportation
order entered in absentia to make a strategic choice after the IJ’s denial of an
initial motion to reopen. Pursuant to Cruz–Garcia, the alien can move to file a
second motion to reopen with the IJ, presenting any new evidence that was not
previously available, or she can appeal the IJ’s order to the Board, giving up the
right to file a second motion with the IJ. Cf. Patino, 23 I. & N. Dec. at 76–77
(noting that there are “tactical differences” between filing an appeal to the Board
and filing a motion to reopen with the IJ, and concluding that “the decision to
file a motion or a direct appeal is a litigation strategy that we leave to the
discretion of the filing party”).
      Lemus–Reyes contends that the Board’s decision in her case represented
an unreasonable, arbitrary, and capricious departure from its prior position in
Singh v. Gonzales. In Singh, we held in relevant part that the Board reasonably
concluded that an alien’s motion to reopen his removal proceedings in order to


                                         7
    Case: 09-60955 Document: 00511395833 Page: 8 Date Filed: 02/28/2011




                                  No. 09-60955

rescind the IJ’s in absentia order of removal could only be filed with the IJ. 436
F.3d at 489. In that case, an alien attempted to file a second motion to reopen
with the Board, and the Board construed that motion as a motion to reopen the
Board’s dismissal of the alien’s appeal from a prior decision of the IJ, rather than
as a new motion to reopen the underlying removal proceedings. Id.
      Singh is inapposite here. Contrary to Lemus–Reyes’ contentions, the
Board in this case did not hold that it had exclusive jurisdiction over her motions
to reopen her deportation proceedings—a holding that would appear to conflict
with Singh. Rather, the Board merely held that the IJ could not adjudicate
Lemus–Reyes’ second motion to reopen because jurisdiction already had vested
with the Board. This holding does not conflict with Singh’s holding that, as a
general matter, motions to reopen in absentia removal orders must be presented
to the IJ, and not the Board. Furthermore, while Singh holds that motions to
reopen an IJ’s in absentia order must be filed with the IJ, Singh does not hold
that an alien may file a second motion to reopen with the IJ following an appeal
to the Board from a prior decision of the IJ. Singh thus left unanswered whether
an alien entitled to file a second motion to reopen an in absentia deportation
order may return to the IJ after jurisdiction has vested with the Board.
       Given our deferential standard of review, and given that Lemus–Reyes
has not supported her assertion that the Board’s position is unreasonable, we
find that the Board did not abuse its discretion in holding that Lemus–Reyes’
appeal to the Board from the IJ’s denial of her first motion to reopen deprived
the IJ of jurisdiction to adjudicate a subsequent motion to reopen. In arriving
at its conclusion, the Board relied on agency regulations, as well as the Board’s
prior decisions, and we cannot say its decision was “so irrational that it is


                                         8
    Case: 09-60955 Document: 00511395833 Page: 9 Date Filed: 02/28/2011




                                 No. 09-60955

arbitrary rather than the result of any perceptible rational approach,” Singh,
436 F.3d at 487, or that its interpretation of the relevant regulations does not
“rationally flow from the language” of those regulations, Navarro–Miranda, 330
F.3d at 675 (5th Cir. 2003).


                               III. CONCLUSION
      Lemus–Reyes’ petition for review is therefore DENIED.




                                       9
