                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                              FOR THE TENTH CIRCUIT


    ISIDRO SILERIO-NUNEZ,

                Petitioner,

    v.                                                    No. 08-9556
                                                      (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



         Isidro Silerio-Nunez petitions for review of an order of the Board of

Immigration Appeals (BIA), in which the BIA affirmed the Immigration Judge’s

(IJ) decision denying petitioner’s motion to reopen. The IJ and the BIA both

concluded that they lacked jurisdiction to reopen petitioner’s removal proceedings

because of the post-departure bar in 8 C.F.R. § 1003.23(b)(1), which prohibits


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
review of motions to reopen removal proceedings once an alien has departed the

United States. Before us, petitioner seeks to overcome this result by challenging

the validity of § 1003.23(b)(1). We recently addressed a materially identical

challenge to the post-departure bar, however, and concluded that the regulation

was valid. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1156-57 (10th Cir. 2009).

Our precedent thus compels us to deny this petition for review.

                                        ***

      Petitioner was a lawful permanent resident when he was convicted in Idaho

of the felony offense of driving under the influence (DUI) and sentenced to three

years in prison. In November 2000, an IJ found him removable as an alien

convicted of an aggravated felony and ordered him removed to Mexico. These

removal proceedings took place in Denver, Colorado, within the Tenth Circuit.

Petitioner waived his right to appeal the IJ’s decision. He departed the United

States shortly after the removal order, but he then returned to this country eleven

days later by presenting his old permanent resident card.

      In February 2005, new removal proceedings were initiated against

petitioner, this time charging him as removable for having re-entered the United

States by fraud or willful misrepresentation and without a valid entry document.

These second removal proceedings took place in Kansas City, Missouri, within

the Eighth Circuit.




                                         -2-
      During the pendency of the second removal proceedings, petitioner filed a

motion to reopen his original removal with the IJ in Denver, Colorado. He did so

in order to seek the retroactive application of the Supreme Court’s decision in

Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court determined that a

DUI was not a crime of violence and therefore could not be considered an

aggravated felony under the Immigration and Nationality Act. Id. at 4-6. The IJ

in Denver denied the motion, concluding that 8 C.F.R. § 1003.23(b)(1) precluded

him from exercising jurisdiction to reopen or reconsider proceedings after

petitioner’s departure from the United States pursuant to a final order of removal.

Petitioner appealed this decision to the BIA, and the BIA affirmed the IJ’s order.

Petitioner then sought review in this court, given that the locus of his original

removal proceeding was within this circuit. Meanwhile, the IJ in Kansas City in

the second removal proceedings found petitioner removable as charged.

Petitioner has filed a separate appeal in the Eighth Circuit challenging the BIA’s

decision affirming the second removal order issued by the IJ in Kansas City.

      After petitioner filed his brief in this court seeking review of the BIA’s

decision not to reopen his original removal proceeding, we issued an opinion in

Rosillo-Puga, which appeared to address and foreclose many of petitioner’s

arguments. In an abundance of caution, we asked the parties to submit

supplemental briefs addressing the impact of Rosillo-Puga on this case. Those

briefs have been filed and this case is now ready for disposition.

                                          -3-
                                         ***

      Before us, petitioner argues that § 1003.23(b)(1) is invalid because it

directly conflicts with 8 U.S.C. §§ 1229a(c)(6)(A) and (7)(A). Alternatively,

petitioner asserts that, even if § 1003.23(b)(1) does not directly conflict with

8 U.S.C. §§ 1229a(c)(6)(A) and (7)(A), the regulation is an arbitrary and

capricious interpretation of the statute. Finally, petitioner argues that the post-

departure bar did not apply to him because he is not presently the subject of

removal proceedings.

      Each of these contentions was addressed and expressly rejected in

Rosillo-Puga. In that case, we held that § 1003.23(b)(1) does not contravene

8 U.S.C. §§ 1229a(c)(6)(A) or (7)(A). See Rosillo-Puga, 580 F.3d at 1156-57.

We held that the agency’s regulation is valid under the statute. Id. And we

rejected the notion that the post-departure bar did not apply to the petitioner in

that case because he was not presently “in” removal proceedings. See id. at

1158-59.

      Petitioner asserts that his case is factually distinguishable from

Rosillo-Puga and that the Supreme Court’s discussion in Dada v. Mukasey, 128 S.

Ct. 2307, 2317 (2008), “implies that Rosillo-Puga is at least partially incorrect in

its holding.” Pet’r Supp. Brief. at 13. We can, however, discern no factual

distinction between this case and Rosillo-Puga that could make any material

difference to the proper legal analysis and outcome of this petition for review.

                                          -4-
Neither the Supreme Court, nor this court sitting en banc, has overturned Rosillo-

Puga, and “[w]e are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.” In re

Smith, 10 F.3d 723, 724 (10th Cir. 1993).

          Separately but relatedly, petitioner argues that due process requires that he

be given a post-departure hearing because his removal in November 2000 was

unlawful. He asserts that he had not actually been convicted of an aggravated

felony, which was the sole basis for his removal. This argument is premised on

the Supreme Court’s decision in Leocal in 2004, which explained that a felony

DUI did not constitute an aggravated felony for removal purposes. See 543 U.S.

at 4-6.

          The problem here, again, is that petitioner’s argument is foreclosed by our

precedent. Rosillo-Puga, like the petitioner here, argued that due process

mandated a post-departure hearing because a court had later clarified that his

battery conviction, which was the basis for his removal, was not an aggravated

felony. See Rosillo-Puga, 580 F.3d at 1149, 1160. In rejecting this argument, we

explained:

          It is well-established that aliens are entitled to due process in
          deportation proceedings. In this context, due process requires that the
          alien receive notice of the charges against him, and a fair opportunity
          to be heard before an executive or administrative tribunal. Rosillo-Puga
          received due process in his deportation proceedings. At the time of his
          removal, he had been convicted of a crime that warranted his removal.
          He received all appropriate process before the immigration authorities,

                                            -5-
      he did not seek relief from the removal order, and he waived his right
      to appeal the removal order. He made no attempt to alter the status of
      his conviction before he left the country. Now, Rosillo-Puga attempts
      to reopen proceedings that ended roughly five years ago, and five years
      following his departure. Due process does not require continuous
      opportunities to attack executed removal orders years beyond an alien’s
      departure from the country. Indeed, there is a strong public interest in
      bringing finality to the deportation process.

Id. at 1160 (quotations and citations omitted). We can discern no basis in law to

reach a different result in this case. Under the binding precedent of this court,

petitioner has received all of the due process to which he is entitled.

                                         ***

      The petition for review is denied. The government’s “Motion to Dismiss

or, in the Alternative, to Transfer Petition for Review” is also denied.


                                                Entered for the Court



                                                Neil M. Gorsuch
                                                Circuit Judge




                                          -6-
