     Case: 11-60550   Document: 00512001787    Page: 1    Date Filed: 09/27/2012




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

                                                                   FILED
                                                               September 27, 2012

                                  No. 11-60550                    Lyle W. Cayce
                                                                       Clerk

WILMER ALBERTO GARCIA CARIAS,

                                            Petitioner
v.

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

                                            Respondent.


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


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        Wilmer Alberto Garcia-Carias was removed from the United States in
2005. In December 2010, Garcia filed a motion to reopen with the Immigration
Court. The following month, the Immigration Judge denied Garcia’s motion,
finding that, under the Attorney General’s departure regulation, he lacked
“jurisdiction to grant [Garcia’s motion] as [Garcia] ha[d] been removed from the
United States.” On appeal, the Board of Immigration Appeals affirmed the
Immigration Judge’s decision and, in doing so, agreed with his analysis. Garcia
subsequently filed a petition for review with this court. For the following
reasons, we grant his petition.
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                                 No. 11-60550

                                       I.
                                       A.
      Wilmer Alberto Garcia-Carias was born in Honduras and was admitted to
the United States as a lawful permanent resident on May 28, 1993. After being
admitted to the United States, Garcia and his family resided in Louisiana. In
November 2002, Garcia was stopped for a traffic violation, arrested, and
subsequently charged with possession of ecstasy. During April of the following
year, Garcia pleaded guilty to violating La. Rev. Stat. Ann. § 40:966(C), which
provides that it is unlawful for a person to “knowingly and intentionally possess
a controlled dangerous substance[.]” Garcia was sentenced to “imprisonment at
hard labor for a term of two years,” but received a suspended sentence, was
placed on probation for two years, and was ordered to pay fees and costs. Under
Louisiana law, Garcia’s offense is considered a felony because he was sentenced
to a term of imprisonment of two years at hard labor. See La. Code. Crim. Proc.
art. 933(3) (“‘Felony’ means an offense that may be punished by death or by
imprisonment at hard labor.”).
      On July 25, 2005, Garcia received a pardon for this conviction under
Louisiana’s first offender pardon statute.
                                       B.
      Three months before receiving his pardon, Garcia was served with a Notice
to Appear charging him with being removable for having been convicted of
possession of a controlled substance and an aggravated felony. During a May 31,
2005 hearing, Garcia admitted the allegations in the NTA. The Immigration
Judge sustained the charges of removability and issued an order of removal
against Garcia.
      Garcia appealed the Immigration Judge’s decision to the Board a month
after the hearing. Two weeks after filing his appeal, Garcia submitted a motion
to withdraw his appeal. On July 27, 2005, the Board acknowledged Garcia’s

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                                   No. 11-60550

withdrawal of his appeal and returned his case to the Immigration Judge
without further action.      Garcia was removed from the United States in
November 2005, and currently resides in Honduras.
                                         C.
         About a year after Garcia was removed, the Supreme Court decided Lopez
v. Gonzales, 549 U.S. 47 (2006). In Lopez, the petitioner, a legal permanent
resident, was convicted in state court of aiding and abetting another person’s
possession of cocaine. 549 U.S. at 51. After his release, removal proceedings
were initiated against Lopez on grounds similar to those in Garcia’s case: a
conviction involving a controlled substance that was also considered an
aggravated felony. Id. Lopez’s challenge to the conclusion that his state
conviction was an aggravated felony for immigration purposes was rejected by
the Board and the Eighth Circuit. Id. at 52.
         In reversing, the Supreme Court recognized that the Immigration and
Nationality Act made Lopez “guilty of an aggravated felony if he has been
convicted of ‘illicit trafficking in a controlled substance . . . including,’ but not
limited to, ‘a drug trafficking crime[.]’” Id. at 52-53. Importantly, the Court
stated that a “drug trafficking crime” is defined by statute as any felony
punishable under the federal Controlled Substances Act. Id. at 53. In making
these observations, the Court also noted that mere possession is not a felony
under the Controlled Substances Act. Id. It then proceeded to hold that “a state
offense constitutes a ‘felony punishable under the Controlled Substances Act’
only if it proscribes conduct punishable as a felony under that federal law.” Id.
at 60. Based on this holding, the Court reversed the Eighth Circuit’s judgment.
Id.
         Close to four years after Lopez was decided, one of Garcia’s relatives
visited him from the United States. This relative encouraged Garcia to research
his immigration case with the hope that Garcia would discover a way to legally

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return to the United States. Garcia followed this advice and came across an
article about Lopez on the internet in October 2010.          While he did not
understand the article in its entirety, he did draw parallels between his case and
the facts in Lopez. He then obtained pro bono counsel to help him with his case.
                                       D.
      On December 27, 2010, Garcia filed a motion to reopen his proceedings
with the Immigration Judge. In his motion, Garcia argued that, in light of
Lopez, his criminal conviction could not be considered an aggravated felony.
Because his conviction could not be considered an aggravated felony, Garcia
maintained that he had established his eligibility for cancellation of removal.
Additionally, Garcia contended that, despite the several years that had passed
since he was removed, his motion was timely because he filed it “less than ninety
days and within a reasonable time of when he first became aware of the
possibility of seeking to reopen his immigration proceedings pursuant to
[Lopez].” In the alternative, he asserted that even if the motion was time barred
under the applicable statute, equitable tolling rendered the motion timely.
Finally, Garcia asked the Immigration Judge to reopen his case sua sponte.
      The Immigration Judge denied Garcia’s motion on January 11, 2011. As
the basis for the denial, the Immigration Judge stated that he lacked
“jurisdiction [to] grant it as [Garcia] ha[d] been removed from the United
States.” The Immigration Judge relied on the Attorney General’s departure
regulation, 8 C.F.R. § 1003.23(b)(1), in arriving at his conclusion.      Garcia
appealed the denial of his motion to the Board.
      The Board dismissed Garcia’s appeal in July 2011. In its written decision,
the Board agreed with the Immigration Judge’s application of the departure
regulation:
      The Immigration Judge correctly determined that he lacked
      jurisdiction to consider the respondent’s motion because the


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       respondent was removed from the United States prior to the filing
       of the motion to reopen with the Immigration Judge. The
       regulations provide that a motion to reopen or reconsider “shall not
       be made by or on behalf of a person who is the subject of removal,
       deportation, or exclusion proceedings subsequent to his or her
       departure from the United States.” 8 C.F.R. § 1003.23(b).

The Board further stated that Garcia’s arguments were foreclosed by Ovalles v.
Holder, 577 F.3d 288 (5th Cir. 2009) and Matter of Armendarez, 24 I. & N. Dec.
646 (BIA 2008). Garcia now appeals the Board’s decision.
                                             II.
       On appeal, Garcia has raised multiple arguments challenging the Board’s
decision. One of the contentions raised by Garcia asks us to grant his petition
on the ground that the departure regulation is invalid under Chevron. Because
it is dispositive, we will focus our attention on this argument.1 Before delving
into our Chevron analysis, we will provide some background regarding the
departure regulation.
                                              A.
       Since the Board was established in 1940, it has possessed the regulatory
power to entertain motions, including motions to reopen, subject to the
limitations prescribed by the Attorney General. In 1952, the Attorney General
limited that power by promulgating the “departure bar,” a regulation barring the
Board from reviewing a motion to reopen filed by a person who has left the
United States. 17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R.



       1
          Garcia also asks us to conclude that his motion was timely. We refuse this request.
The Board did not affirm the Immigration Judge’s decision on timeliness grounds. Because
the timeliness of Garcia’s motion was not addressed by the Board, we will refrain from
reaching this issue. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon
which an administrative order must be judged are those upon which the record discloses that
its action was based.”); cf. I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (holding that a court of
appeals is not generally empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry).

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§ 6.2 (1953)). The substance of the departure regulation remains substantially
the same today. See 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1).2
       In 1961, Congress created a statutory counterpart to the Board’s departure
regulation. This statute prohibited federal courts from reviewing deportation
and exclusion orders if the alien “has departed from the United States after the
issuance of the order.” Act of Dept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat.
650, 651-53 (1961). This bar to judicial review was repealed in 1996 with the
passage of the Illegal Immigration Reform and Immigration Responsibility Act,
Pub. L. No. 104-208, 110 Stat. 3009. Along with repealing this bar, the Act also
established a statutory right to file a motion to reopen.                 In doing so, it
“transform[ed] 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, 15 (2008).
       The Act provided that an alien has a general right to file one motion to
reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A); Dada, 554 U.S. at 15. It also
detailed the required evidentiary content of a motion to reopen, the deadline for
filing the motion, and exceptions to both the numerical limit of one motion and
the time period for filing the motion. 8 U.S.C. § 1229a(c)(7)(A)-(C). Notably,
despite codifying various limitations on an alien’s right to file a motion to reopen,
Congress did not codify the departure regulation.
       In implementing the Act, the Attorney General promulgated several
additional regulations. Inspection and Expedited Removal of Aliens: Detention
and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62
Fed. Reg. 10312 (Mar. 6, 1997). As relevant here, the Attorney General, after a
notice and comment period, concluded that nothing in the Act “support[ed]
reversing the long established rule that a motion to reopen cannot be made in



       2
           From early on, the Board construed the departure regulation as a limitation on its
“jurisdiction.” Matter of G-Y-B-, 6 I. & N. Dec. 159, 159-60 (BIA 1954).

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immigration proceedings by or on behalf of a person after that person’s
departure from the United States.” Id. at 13021.
      In 2000, Congress made additional revisions to the statute governing
motions to reopen. See Violence Against Women Act of 2000, Pub. L. No. 106-
386, div B, § 1506, 114 Stat. 1464, 1528 (codified at 8 U.S.C. § 1229a(c)(6)(C)(iv)).
In these revisions, Congress exempted some alien victims of domestic violence
from the deadlines on motions to reopen. Five years later, Congress limited this
exemption by requiring that the alien victim be “physically present in the United
States at the time of filing the motion.” See Violence Against Women and
Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, §
825(a)(2)(F), 119 Stat. 2960, 3063-64 (Jan. 5, 2006) (codified at 8 U.S.C. §
1229a(c)(7)(C)(iv)(IV)).
      The Board subsequently addressed the validity of the departure regulation
in light of the statutory changes that had taken place since 1996. While it
recognized circuit case law questioning the continued validity of the departure
regulation, the Board ultimately concluded that the “departure bar rule
remain[ed] in full effect.” Matter of Armendarez, 24 I. & N. Dec. at 660.
      As it relates to motions filed before the Immigration Judge, the departure
regulation presently reads as follows:
      A motion to reopen or to reconsider shall not be made by or on
      behalf of a person who is the subject of removal, deportation, or
      exclusion proceedings subsequent to his or her departure from the
      United States. Any departure from the United States, including the
      deportation or removal of a person who is the subject of exclusion,
      deportation, or removal proceedings, occurring after the filing of a
      motion to reopen or a motion to reconsider shall constitute a
      withdrawal of such motion.

8 C.F.R. § 1003.23(b)(1). A substantially similar regulation limits an alien’s
ability to file a motion to reopen before the Board. See 8 C.F.R. § 1003.2(d).



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Together, these separate regulations constitute what has been referred to as the
“departure bar” or “departure regulation.”
      With this background in mind, we now turn to considering the validity of
the departure regulation under Chevron.
                                          B.
      We review the Board’s findings of fact for substantial evidence and its
legal determinations de novo. Khalid v. Holder, 655 F.3d 363, 366 (5th Cir.
2011) (citation omitted). As to its interpretation of immigration statutes, we
defer to the Board to the extent prescribed by the two-step analysis set forth in
Chevron. Id. (citation omitted).
      Under Chevron’s first step, we must determine whether the statute at
issue is ambiguous. “‘If the intent of Congress is clear,’–that is, the statute is
unambiguous with respect to the question presented– ‘the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress.’”
Id. (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984)). To determine whether a statute is ambiguous, we must
employ the traditional tools of statutory interpretation. Id. (citation omitted).
“Chief among these, of course, is the ‘plain language of the statute.’” Id. (quoting
In re Dale, 582 F.3d 568, 573 (5th Cir. 2009)).
      “At the same time, the Supreme Court has cautioned that the statute must
be read as a whole: ‘In determining whether Congress has specifically addressed
the question at issue, a reviewing court should not confine itself to examining a
particular statutory provision in isolation.’” Id. at 366-67 (quoting FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000)). “Thus, a statutory
provision cannot be read in isolation, but necessarily derives meaning from the
context provided by the surrounding provisions, as well as the broader context
of the statute as a whole.” Id. at 367.



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      If a provision is ambiguous as to the question presented, the analysis
proceeds to Chevron’s second step, which asks “whether the agency’s answer is
based on a permissible construction of the statute.” Id. (citation omitted). In
considering this second step, we may evaluate “‘only whether the decision is
arbitrary, capricious, or manifestly contrary’ to the statute, and may not
substitute our own judgment ‘for a reasonable alternative formulated by the
[Board].’” Id. (quoting Mortera-Cruz v. Gonzales, 409 F.3d 246, 253 (5th Cir.
2005)).
                                        C.
      Going no further than Chevron’s first step, we conclude that Section
1229a(c)(7) unambiguously gives aliens a right to file a motion to reopen
regardless of whether they have left the United States. Three reasons support
this conclusion.
      First, the statutory text conferring a right to file a motion to reopen plainly
does not place any geographic restrictions on its exercise. By statute, an alien
has a general right to file one motion to reopen proceedings.           8 U.S.C. §
1229a(c)(7); Dada, 554 U.S. at 15 (stating that Section 1229a(c)(7) “is plain
insofar as it guarantees to each alien the right to file one motion to reopen
proceedings under this section”). The statute specifically states the following:
“An alien may file one motion to reopen proceedings under this section, except
that this limitation shall not apply so as to prevent the filing of one motion to
reopen described in subparagraph (C)(iv).” 8 U.S.C. § 1229a(c)(7)(A). By its
clear terms, the statute does not distinguish between those aliens who are
abroad and those who remain in the United States–the unmodified “alien”
captures both. Congress could have, but did not, distinguish between the two
classes of aliens in creating this right. Under our reading, the statute is facially
unambiguous. Because the statute is facially unambiguous, we will adhere to
its plain meaning. See Cheshire v. Comm’r, 282 F.3d 326, 336-37 (5th Cir. 2002)

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                                   No. 11-60550

(“Unless the text of a statute is ambiguous on its face, this court adheres to that
statute’s plain meaning.”). Giving the statute its plain meaning, we conclude
that an alien’s ability to exercise his statutory right to file a motion to reopen is
not contingent upon his presence in the United States.
      Second, the statutory limitations placed on the exercise of the right to file
a motion to reopen provide contextual support to Section 1229a(c)(7)(A)’s plain
meaning. As stated earlier, the statute limits the use of this motion by imposing
evidentiary requirements and time limitations. See 8 U.S.C. 1229a(c)(7)(B)-(C).
The fact that Congress created limitations on the exercise of the motion to
reopen, yet did not place a geographic restriction, supports a reading of Section
1229a(c)(7)(A) that does not deny departed aliens their right to file a motion to
reopen. Cf. United States v. Johnson, 529 U.S. 53, 58 (2000) (“When Congress
provides exceptions in a statute, it does not follow that courts have authority to
create others. The proper inference . . . is that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set forth.”).
      Third, Congress’s requirement that domestic abuse victims physically
remain in the United States in order to file out-of-time motions to reopen also
buttresses our interpretation of the statute. The existence of a physical presence
requirement in close proximity to the textual language at issue supports the
conclusion that Congress did not condition the right to file a motion to reopen on
an alien’s presence in the United States. Indeed, as the Supreme Court has
recognized, “[w]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation
marks and citation omitted). Moreover, an interpretation of the statute that
would impose a general physical presence requirement would effectively read the
aforementioned provision regarding domestic abuse victims out of the statute.

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Such a reading would run afoul of basic principles of statutory interpretation.
See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (stating that it is a “cardinal
principle of statutory construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant”).
       In sum, we hold that the Board’s application of the departure regulation
to statutory motions to reopen is invalid under Chevron’s first step as the statute
plainly does not impose a general physical presence requirement.                          This
conclusion is consistent with the decisions of our sister circuits that have
addressed this specific issue.3 See Lin v. U.S. Att’y Gen., 681 F.3d 1236, 1241
(11th Cir. May 23, 2011) (holding 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”); Contreras-Bocanegra v.
Holder, 678 F.3d 811, 818 (10th Cir. Jan. 30, 2012) (en banc) (concluding that
“[b]ecause the post-departure bar regulation conflicts with Congress’ clear
intent, it cannot survive step one of the Chevron analysis”); Coyt v. Holder, 593
F.3d 902 (9th Cir. 2010) (deciding the case on Chevron’s first step and concluding
that the departure bar cannot be applied to petitioners who have been
involuntarily removed from the United States); William v. Gonzales, 499 F.3d
329, 333 (4th Cir. 2007) (holding that Section 1229a(c)(7)(A) “clearly and
unambiguously grants an alien the right to file one motion to reopen, regardless
of whether he is present in the United States when the motion is filed”); cf.


       3
         The Sixth and Seventh Circuits have also granted petitions for review challenging
the departure regulation, but on different grounds. Specifically, both circuits concluded that
the Board’s jurisdictional interpretation of the regulation was improper in light of the
Supreme Court’s recent efforts to clarify the distinction between jurisdictional and other legal
rules. See Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder, 612
F.3d 591 (7th Cir. 2010).

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                                  No. 11-60550

Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011) (in the context of
statutorily authorized motions for reconsideration, holding that the “post-
departure bar regulation conflicts with Congress’ clear intent for several
reasons”). The uniform alignment of other circuits that have addressed this
issue counsels in favor of deeming the departure regulation invalid as applied
to statutory motions to reopen. See In re Dale, 582 F.3d at 575 n.8 (bolstering
its conclusion with the “general prudential concern[] with creating unnecessary
circuit splits”).
      One final point warrants mention. In his brief, the Attorney General
contends that the departure regulation’s validity is supported by our decisions
in Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) and Ovalles.
According to him, these two decisions foreclose a challenge to the application of
the departure regulation to statutory motions to reopen. We disagree. Navarro-
Miranda dealt with the applicability of the departure regulation in the context
of the Board’s exercise of its regulatory power to reopen cases sua sponte. See
330 F.3d at 675-76. Unlike the present case, Navarro-Miranda did not involve
an alien’s statutory right to file a motion to reopen.
      Ovalles is also not controlling. There, we denied relief on two relevant
grounds.    First, we concluded that Ovalles could not avail himself of his
statutory right to file a motion to reopen or for reconsideration because his
motion before the Board was untimely. Ovalles, 577 F.3d at 296 (“Thus, because
sections 1229a(c)(6) and 1229a(c)(7) of IIRIRA do not grant Ovalles the right to
have his facially and concededly untimely motion heard by the BIA, he cannot
rely on those statutory provisions as a basis for contending that the BIA was
required to give sua sponte consideration to the merits of his July 27, 2007
motion to reconsider or reopen its March 2004 decision.”). Second, relying on
Navarro-Miranda, we concluded that the Board acted reasonably in determining



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                                 No. 11-60550

that the departure regulation deprived it of its regulatory power to reopen or
reconsider decisions sua sponte. Id. at 296-97.
      In short, Navarro-Miranda and Ovalles resolved the issue of the
applicability of the departure regulation to the Board’s regulatory power to
reopen or reconsider sua sponte. Contrary to what the Attorney General
suggests, however, these decisions did not speak directly to the relationship
between the departure regulation and an alien’s statutory right to file a motion
to reopen. Given the fundamental difference between the regulatory sua sponte
power and the aforementioned statutory right, we conclude that Navarro-
Miranda and Ovalles do not govern our consideration of whether the departure
regulation can limit Garcia’s right to file a statutory motion to reopen.
      Put simply, Garcia’s statutory right to file a motion to reopen is not
trumped by the Board’s departure regulation. In so holding, we join four other
circuits that have arrived at this same conclusion. Given our narrow procedural
ruling, nothing in this opinion should be read as commenting on any substantive
claim Garcia may present on remand.
                                      III.
      For these reasons, we GRANT Garcia’s petition and REMAND to the
Board for proceedings consistent with this opinion.




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                                        No. 11-60550

Harold R. DeMoss, Jr., Circuit Judge, dissenting:

       The majority holds that the “departure bar,” a decades-old regulation
currently codified at 8 C.F.R. §§ 1003.23(b)(1) and 1003.2(d), is invalid under
step one of the Chevron analysis. For the reasons set forth by former Chief
Judge Williams of the Fourth Circuit in her thorough and well-stated dissenting
opinion in William v. Gonzales, 499 F.3d 329, 334-345 (4th Cir. 2007),1 I
respectfully dissent from my distinguished colleagues’ “judicial repeal” of this
long-standing rule. Cf. Concorde Career Colls., Inc. v. Riley, No. 92-1064-CV-W-
6, 1994 WL 463951, at *3 (W.D. Mo. Aug. 24, 1994) (“Judicial repeal of a
regulation is a decidedly risky business under Chevron . . . .”).
       The Attorney General’s departure bar regulation has been part of our
immigration law for more than fifty years and says in essence that once an alien
has been deported to his home country or has otherwise departed the United
States, he is no longer eligible to file a motion to reopen or reconsider his
immigration proceeding. I recognize, of course, that Congress has the power to
repeal any rule adopted by any administrative agency to which the rule-making
power has been delegated. It is far from clear, however, that Congress has
exercised that power with respect to the departure bar in this case.
                                                I.
       The majority identifies three grounds for its holding that Congress
repealed the departure bar when it passed the Illegal Immigration Reform and
Immigration Responsibility Act (“IIRIRA”) in 1996. I address each of the
majority’s arguments in turn.


       1
         The William case dealt with 8 C.F.R. § 1003.2(d), which applies to motions to reopen
before the Board of Immigration Appeals, while the instant case relates to 8 C.F.R.
§ 1003.23(b)(1), which applies to motions to reopen before an Immigration Judge. That
difference, however, has no affect on the foregoing analysis. Indeed, each of the cases cited by
the majority as “decisions of our sister circuits that have addressed this specific issue,” relate
to 8 C.F.R. § 1003.2(d), not 8 C.F.R. § 1003.23(b)(1).

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                                   No. 11-60550

                                         A.
      The majority first argues that the IIRIRA conflicts with the departure bar
because it provides that “[a]n alien may file one motion to reopen proceedings
under this section.” 8 U.S.C. § 1229a(c)(7)(A). According to the majority, this
language makes clear that “an alien’s ability to exercise his statutory right to file
a motion to reopen is not contingent upon his presence in the United States.”
There is no question, however, that “§ 1229a(c)(7)(A) does not explicitly prohibit
or permit motions to reopen made after departure.” William, 499 F.3d at 336
(Williams, C.J., dissenting). “The provision simply does not speak to that
question.” Id. In other words, the statute is silent as to whether an alien may
file a motion to reopen after departing the United States. If a statute is silent
“with respect to the precise question at issue, we proceed to the second step of
Chevron analysis.” U.S. Telecom Ass’n v. FCC, 227 F.3d 450, 457 (D.C. Cir.
2000); see also City of Arlington v. FCC, 668 F.3d 229, 255 n.127 (5th Cir. 2012)
(quoting U.S. Telecom, 227 F.3d at 457-58); Enron Oil and Gas Co. v. Lujan, 978
F.2d 212, 215 (5th Cir. 1992) (“Because the MLA and NGPA are silent on
whether the DOI may properly consider state tax reimbursements in calculating
‘gross proceeds’ for purposes of assessing royalties on Enron, this court must
inquire only as to whether the agency’s determination is a permissible
interpretation” (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 843-44 (1984)). The majority improperly inverts this rule. Rather
than holding, as I would, that the statute’s silence on the critical issue in this
case requires proceeding to Chevron step two, the majority takes the statutory
silence as license to stop at Chevron step one.
      The reason given by the majority for taking Congress’s failure to speak one
way or the other on the departure bar in the IIRILA as an unambiguous sub
silentio repeal of the regulation is that 8 U.S.C. § 1229a(c)(7)(A) refers to “an
alien” rather than something like “an alien physically present in the United

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                                  No. 11-60550

States.” “By its clear terms,” the majority instructs us, “the statute does not
distinguish between those aliens who are abroad and those who remain in the
United States—the unmodified ‘alien’ captures both.” The majority’s reasoning
misses the fact that § 1229a(c)(7)(A) speaks to a numerical limitation on the
number of motions to reopen an alien may file, not to whether the alien may file
a motion to reopen post-departure. See William, 499 F.3d at 336, 339 (Williams,
C.J., dissenting). “[T]he proper point of emphasis in the statute is on the
number ‘one,’” not on the words “an alien.” Id. at 336. The majority’s improper
reading of § 1229a(c)(7)(A) leads it to construe “an alien” as “any alien,” yielding
an unduly expansive interpretation of the statute. See William, 499 F.3d at 336
(Williams, C.J., dissenting) (“The majority’s conclusion that Congress’s intent to
repeal 8 C.F.R § 1003.2(d) is clearly evidenced by Congress’s enactment of
§ 1229a(c)(7)(A) alone does not sufficiently account for the realities of the pre-
IIRIRA regulatory framework and imputes more meaning to the codified
numerical limitation than the words of the statute can bear.”).
      For example, nothing in the statute specifies that the alien filing the
motion to reopen must have been the subject of the proceeding in which the
motion is filed. Section 5.1(c) of the Board’s Practice Manual states “Only a
party to a proceeding, or a party’s representative, may file a motion pertaining
to that proceeding. Family members, employers, and other third parties may not
file a motion.” BIA Practice Manual § 5.1(c) (2004). Following the majority’s
logic, § 5.1(c) may be invalid. To borrow the majority’s phraseology, “the
unmodified alien” of § 1229a(c)(7)(A) does not distinguish between the alien who
is a party to the underlying proceeding and any family members, employers, or
other third parties who are themselves aliens. Thus, under the majority’s view,
it is at least arguable that the Immigration Judge must allow an alien’s foreign
employer to file a motion to reopen his employee’s immigration proceeding. I
find it inconceivable that Congress intended to allow, much less require, this

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                                  No. 11-60550

type of third-party practice. But if we are to read “an alien” as “any alien,” it
seems a reasonable conclusion, which suggests the majority’s reading is flawed.
 See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222 (2009) (“The inference
that respondents and the dissent would draw from the silence is, in any event,
implausible, as § 1326(b) is silent not only with respect to cost-benefit analysis
but with respect to all potentially relevant factors. If silence here implies
prohibition, then the EPA could not consider any factors in implementing
§ 1326(b)—an obvious logical impossibility.”).
      The majority’s expansive reading of § 1229a(c)(7)(A) also ignores the
statute’s pre-IIRIRA origins. As both the majority and Judge Williams note, the
IIRIRA codified pre-existing regulatory language that was substantially
identical to § 1229a(c)(7)(A).     William, 499 F.3d at 336 (Williams, C.J.,
dissenting). There is no dispute that the language of § 1229a(c)(7)(A), when it
was in regulatory form, was consistent with the departure bar. According to the
majority, however, the same words that were consistent with the departure bar
when they were contained in a regulation became inconsistent with the
departure bar when Congress used them in a statute. How the transition from
regulatory to statutory status transformed the meaning of the language of
§ 1229a(c)(7)(A) is a mystery the majority leaves unsolved. See William, 499
F.3d at 334-35 (Williams, C.J., dissenting) (“Given that a nearly identical
provision limiting aliens to one motion to reopen existed before enactment of the
IIRIRA, and in the same regulation containing the departure bar now located in
§ 1003.2(d), I cannot join the majority’s conclusion that § 1229a(c)(7)(A) by itself
repeals the departure bar in 8 C.F.R. § 1003.2(d).” (citation omitted)).
      The majority opinion provides the hint, however, that it finds “notabl[e]”
that “Congress did not codify the departure regulation.” It appears the majority
takes Congress’s decision to codify the motion to reopen but not the departure
bar as evidencing an intent to prohibit the Attorney General from continuing to

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                                  No. 11-60550

enforce the departure bar. In doing so, the majority proceeds from a false
premise: that in enacting the IIRIRA and codifying the motion to reopen,
Congress intended to eliminate the Attorney General’s discretion as to whether
to retain the departure bar. Put another way, the majority wrongly assumes
that in passing the IIRIRA, Congress had only two choices: to make the
departure bar mandatory or to make it impermissible. There is no reason to
assume, however, that Congress had to either codify the departure bar (thereby
eliminating the Attorney General’s discretion to abandon it) or to repeal the
departure bar (thereby eliminating the Attorney General’s discretion to maintain
it).   The most reasonable interpretation of Congress’s actions is a third
possibility the majority appears to dismiss out of hand: that Congress intended
to leave the question of whether to retain the departure bar to the discretion of
the Attorney General and did so by declining to codify the departure bar and
remaining silent as to its continued application. Indeed, this type of statutory
silence is exactly how one would expect Congress to vest discretion in the
Attorney General. See, e.g., United States v. Home Concrete and Supply, LLC,
132 S. Ct. 1836, 1843 (2012) (plurality opinion) (describing Chevron as stating
that a “statute’s silence . . . as to a particular issue means that Congress has not
directly addressed the precise question at issue (thus likely delegating gap-filling
power to the agency)” (internal quotations omitted)); Entergy Corp., 556 U.S. at
222 (holding that “[i]t is eminently reasonable” to conclude that statute’s silence
“is meant to convey nothing more than a refusal to tie the agency’s hands”);
Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 828 (9th Cir. 2002) (holding that
agency had discretion to both adopt and later eliminate a carry-forward
provision under a statute silent as to carry-forward provision, noting “While it
is clear that Congress permitted the Secretary to implement a carry-forward
provision, it is far from clear that Congress required such a provision”).
Accordingly, the majority errs in holding that the plain meaning of

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                                  No. 11-60550

§ 1229a(c)(7)(A) eliminates the Attorney General’s discretion to retain the
departure bar.
                                       B.
      The second reason given by the majority for finding that § 1229a(c)(7)(A)
conflicts with the departure bar is that §§ 1229a(c)(7)(B)-(C) impose evidentiary
requirements and time limitations on motions to reopen. The majority reasons
that “[t]he fact that Congress created limitations on the exercise of the motion
to reopen, yet did not place a geographic restriction, supports a reading of
§ 1229a(c)(7)(A) that does not deny departed aliens their right to file a motion
to reopen.” This argument collapses under its own weight. Under the majority’s
reasoning, but for § 1229a(c)(7)(C), which provides for a general 90-day deadline
for motions to reopen, the Attorney General would be prohibited from imposing
any time limitation at all. Nor can the Attorney General, under the majority’s
holding, continue to enforce 8 C.F.R. § 1003.2(g)(1), which provides that “[a]
motion and any submission made in conjunction with a motion must be in
English or accompanied by a certified English translation.” The statute does not
impose a language requirement on motions to reopen or the affidavits and other
evidentiary materials required to be filed with the motion. Under the majority’s
reasoning, the fact that Congress did not impose a language requirement but did
impose evidentiary and timing requirements on motions to reopen “supports a
reading” of §§ 1229a(c)(7)(A)-(B) that “does not deny aliens their right to file a
motion to reopen” in whatever language they choose.           Indeed, under the
majority’s view, the fact that Congress did not elevate this regulation to
statutory status, while codifying other restrictions on motions to reopon, shows
that Congress intended to repeal the regulation.
      Again, the fallacy in the majority’s argument is that it proceeds from a
false premise: that because Congress filled some gaps as to the requirements for
a motion to reopen, Congress necessarily left no other gaps for the Attorney

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                                  No. 11-60550

General to fill. But this has never been the rule under Chevron. See Entergy
Corp., 556 U.S. at 223 (“[U]nder Chevron, that an agency is not required to do
so does not mean that an agency is not permitted to do so.”); see also Home
Concrete and Supply, 132 S. Ct. at 1843 (statutory silence indicates Congress
“likely delegat[ed] gap-filling power to the agency”); Nat. Cable and Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 997 (2005) (statutory silence
suggests “that the Commission has the discretion to fill the consequent statutory
gap”). The case cited by the majority for its proposition, United States v.
Johnson, 529 U.S. 53, 85 (2000), has nothing to do with Chevron deference.
Rather, it stands for the rule that courts may not create exceptions to statutes
simply to accommodate equitable considerations. But, the fact that courts
should not engage in statutory gap-filling certainly does not prohibit agencies
from doing so under Chevron. See Brand X, 545 U.S. at 982 (“Chevron’s premise
is that it is for agencies, not courts, to fill statutory gaps.”). Far from showing
that Congress meant to drastically limit the Attorney General’s discretion as to
what is required of a motion to reopen, §§ 1229a(c)(7)(B)-(C) actually support
the view that the proper focus of § 1229a(c)(7)(A) is not its purportedly
unbounded geographic scope, but its limitation on the number of motions to
reopen an alien may file.      See William, 449 F.3d at 336 (Williams, C.J.,
dissenting) (finding that, in light of the 90-day deadline codified at
§ 1229a(c)(7)(C), “[t]he statutory context of § 1229a(c)(7) makes clear that it is
just a numerical limitation—nothing more, nothing less”).
                                        C.
      The majority’s third and final argument relies on a 2005 amendment to
§ 1229a(c)(7) that permits domestic abuse victims to file motions to reopen after
the 90-day deadline, provided that they are physically within the United States
when the motion is filed. According to the majority, “The physical presence
requirement in close proximity to the textual language at issue supports the

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                                  No. 11-60550

conclusion that Congress did not condition the right to file a motion to reopen on
the alien’s presence in the United States.” The majority further asserts that “an
interpretation of the statute that would impose a general physical presence
requirement would effectively read the [2005 amendment] out of the statute.”
      As an initial matter, the majority again misses the relevant inquiry. The
issue in this case is not whether Congress has “condition[ed] the right to file a
motion on the alien’s presence in the United States” or “imposed a general
physical presence requirement,” but whether the Attorney General has discretion
to do so under the statute. Accordingly, the question is not whether the 2005
amendment is inconsistent with a statutory provision requiring the departure
bar, but whether it is inconsistent with the Attorney General having discretion
to either retain or abandon the departure bar. If it is Congress’s intention to be
agnostic as to the departure bar, then the physical presence requirement does
not become mere surplusage. Rather, Congress has provided for the eventuality
that the Attorney General decides to abandon the departure bar, in which case
the 2005 amendment will come into play. At most, the 2005 amendment shows
that Congress anticipates the departure bar may cease to exist, not that
Congress mandates its extinction.
      Moreover, as Judge Williams notes, it is not clear that the 2005
amendment provides any insight into what Congress intended by codifying the
motion to reopen. See William, 499 F.3d at 337 (Williams, C.J., dissenting).
Section 1229a(c)(7)(A) was passed as part of the IIRIRA in 1996, the 2005
amendment was passed as part of the Violence Against Women and Department
of Justice Reauthorization Act of 2005. Thus, although §§ 1229a(c)(7)(A) and
1229a(c)(7)(C)(iv)(IV) are in “close proximity” in terms of codification, they are
“connected neither in time nor purpose.” William, 499 F.3d at 337 (Williams,
C.J., dissenting). For that reason, the physical presence requirement of the 2005



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                                  No. 11-60550

amendment provides, at best, little insight into whether Congress intended to
repeal the departure bar via § 1229a(c)(7)(A) nine years earlier.
      Indeed, the majority’s reading of the congressional intent behind the 2005
amendments tells an implausible story. According to the majority, although
Congress in 2005 was clearly of the view that the departure bar was inconsistent
with § 1229a(c)(7)(A), it did not amend § 1229a(c)(7)(A) to make clear that there
could be no general physical presence requirement on motions to reopen, but
added §1229a(c)(7)(C)(iv)(IV) on the assumption that the Attorney General
would sua sponte reverse his consistent, decade-long interpretation of
§ 1229a(c)(7)(A) and find he was without discretion to impose a physical presence
requirement. Once again, the majority has it backwards. The fact that Congress
considered the issue of the alien’s geographic location in 2005 and took no action
to address the Attorney General’s interpretation of § 1229a(c)(7)(A) shows
congressional acquiescence to the departure bar, not an intent to repeal it. See
Irvine Med. Ctr., 275 F.3d at 830 n.4 (“Moreover, the legislative acquiescence in
the carry-over regulation is consistent with the view that Congress left the
decision to the Secretary. Since the repeal in 1988, Congress has taken no action
to require a carry-forward provision, which weakens further the plaintiffs’
contention that Congress sought to mandate a carry-forward.”).
                                        II.
      Having concluded that the statute is silent “with respect to the precise
question at issue, we proceed to the second step of Chevron analysis.” U.S.
Telecom Ass’n, 227 F.3d at 457. The highly deferential standard of Chevron step
two requires that we give controlling weight to the agency’s interpretation of the
statute unless it is “arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 844. “Once we determine that a statute is silent . . . with
respect to a question at issue, we must defer to the agency’s resolution of the
question if the agency’s interpretation is based on a permissible construction of

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                                  No. 11-60550

the statute.” City of Arlington, 668 F.3d at 252; see also Orellana-Monson v.
Holder, 685 F.3d 511, 520-21 (5th Cir. 2012) (noting that under Chevron step
two, an agency interpretation “is binding as long as it is a permissible
construction of the statute.” (internal quotations omitted)).          An agency
interpretation fails Chevron step two only if “it is contrary to clear congressional
intent or frustrates the policy Congress sought to implement.” Providence
Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010) (internal
quotations omitted). “[J]udicial deference to the Executive Branch is especially
appropriate in the immigration context . . . .” INS v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999). Again following Judge Williams, I find that the departure bar
clears Chevron step two.       William, 499 F.3d at 342-44 (Williams, C.J.,
dissenting).
                                        A.
      Appellant advances two arguments for why the “departure bar is in clear
tension with the intent of the IIRIRA and the larger immigration scheme.”
First, Appellant argues that the departure bar renders the statutory
requirement that an alien be removed within ninety days of the final order of
removal, see 8 U.S.C. § 1231(a)(1)(A), in tension with the ninety-day deadline to
file a motion to reopen. This supposed tension, however, was resolved by the
Supreme Court in Dada v. Mukasy, 554 U.S. 1, 21 (2008). There, the Court
noted that an “alien may be removed by the DHS within 90 days [of a final order
of removal], even if the motion to reopen has yet to be adjudicated.” Id. “But,”
the Court observed, “the alien may request a stay of the order of removal and,
though the BIA has discretion to deny the motion for a stay, it may constitute
an abuse of discretion for the BIA to do so where the motion states nonfrivolous
grounds for reopening.” Id. (internal citation omitted).         Accordingly, the




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                                      No. 11-60550

departure bar may be read in harmony with the 90-day deadline for motions to
reopen and the 90-day deadline for mandatory removal.2
                                             B.
       Appellant also argues that the IIRIRA’s elimination of the post-departure
bar to judicial review shows a Congressional intent “to allow post-departure
adjudications while furthering its interests in increased accuracy and a
streamlined deportation process.” For the same reasons as Judge Williams, I do
not take the repeal of the judicial departure bar as evidencing a congressional
intent to eliminate the Attorney General’s discretion to maintain the
administrative departure bar to motions to reopen. In short, petitions for
judicial review and motions to reopen are very different creatures that serve
distinct purposes. See William, 499 F.3d at 343 (Williams, C.J., dissenting) (“A
petition for review of a final order of removal represents an alien’s first and only
opportunity for judicial review of the merits of the order, whereas a motion to
reopen seeks a subsequent opportunity for administrative review.”); see also id.
(noting that motions to reopen “‘are disfavored for the same reasons as are
petitions for rehearing and motions for a new trial on the basis of newly
discovered evidence’” and that accordingly one cannot “impute to Congress a
similar intention to free the motion to reopen from the workings of the departure

       2
          Noting that it had not considered the validity of the departure bar because the
regulation had not been challenged, the Dada Court nonetheless suggested that “[a] more
expeditious solution to the untenable conflict between the voluntary departure scheme and the
motion to reopen might be to permit an alien who has departed the Untied States to pursue
a motion to reopen post departure.” Dada, 554 U.S. at 22. I take the Court’s suggestion as
directed to the Attorney General and Congress rather than to the lower courts. Taken as
persuasive dicta on the issue in this case—which is how Appellant would like us to read
it—the Court’s statement, at best, suggests a result with no clear path to getting there.
Mindful that we are bound to obey precedential holdings in favor of dicta suggesting a
different result, I stick to the well-worn Chevron path and simply follow where it leads. See
United States v. Lipscomb, 299 F.3d 303, 313 (5th Cir. 2002) (“Because Salinas and Fischer
went no further than to advert in dicta to the mere possibility that the argument now
advanced by Lipscomb might someday be favored, we are bound to adhere to Westmoreland’s
statutory holding.”).

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                                       No. 11-60550

bar, given the motion’s disfavored status.” (quoting INS v. Doherty, 502 U.S. 314,
323 (1992))). As articulated by the First Circuit, the repeal of the judicial
departure bar “does not remotely support an argument that Congress also
intended, implicitly, to allow post-departure petitions to reopen a closed
administrative proceeding.” Pena-Muriel v. Gonzales, 489 F.3d 438, 442 (1st Cir.
2007).
       Finally, I note that had it been the intent of Congress to ensure that all
challenges to final deportation orders be permitted post-departure, Congress
could have, but did not, codify that requirement. Indeed, the fact that Congress
took unmistakably clear action with respect to the judicial departure bar makes
its silence with respect to the administrative departure bar all the more
deafening. In my view, the repeal of the judicial departure bar, combined with
Congress’s failure to speak as to the departure bar at issue here, suggests
“acquiescence to its continued functioning,” not an intention to ban it. William,
499 F.3d at 344 (Williams, C.J., dissenting).3
       Appellant has provided no reason why the departure bar is invalid under
Chevron step two. I therefore respectfully dissent from the majority’s decision
holding the departure bar ultra vires under Chevron.4

       3
           I note also that the administrative departure bar was never mentioned in the
legislative history of the IIRIRA or in any committee hearings on the law. The lack of any
mention of the departure bar in connection with the enactment of the IIRIRA, apart from what
it says about Congress’s intent, raises an issue of transparency. Assuming that one of the
purposes of the IIRIRA was to repeal a half-century old regulation continually employed by
the Attorneys General of eleven successive presidential administrations, should Congress not
have made that clear to the public prior to enactment of the IIRIRA, so that anyone supporting
the regulation could have advocated for its retention? Surely at least the Attorney General
in 1996 was entitled to some opportunity to present her views on what effect repeal of the
departure bar would have on the functioning of her department.
       4
         As the majority points out, four other Courts of Appeals have reached the same result
as the majority and none have reached the opposite result, save a divided panel of the Tenth
Circuit which was subsequently reversed en banc. See Contreras-Bocanegra v. Holder, 629
F.3d 1170 (10th Cir. 2010), rev’d en banc, 678 F.3d 811 (10th Cir. 2012). The uniformity
among the circuits masks the difficulty of this issue. See William, 499 F.3d at 335 (Williams,

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                                        No. 11-60550




C.J., dissenting) (noting that the case presented “a close question”). The basic issue in dispute
here, how congressional silence should be interpreted in the Chevron analysis, is one that
courts have struggled with. David M. Hasen, The Ambiguous Basis of Judicial Deference to
Administrative Rules, 17 YALE J. ON REG. 327, 337 (2000). For that reason, I hope the
Attorney General will not decline to seek review of this question in the Supreme Court solely
due to the absence of a circuit split.

                                               26
