                                                  NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         No. 08-1676




              NAIMESH DINESHBHAI PATEL,
                                  Petitioner
                          v.

      ATTORNEY GENERAL OF THE UNITED STATES,
                                 Respondent




              On Petition for Review of an Order
             of the Board of Immigration Appeals
                      (No. A73-570-730)
           Immigration Judge: Hon. Frederick D. Hess


           Submitted Under Third Circuit LAR 34.1(a)
                      September 13, 2010

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                  (Filed: September 17, 2010)


                          OPINION
SLOVITER, Circuit Judge.

         Naimesh Dineshbhai Patel1 petitions this court to review the decision of the Board

of Immigration Appeals (“BIA”) dismissing for lack of jurisdiction Patel’s appeal from

the denial by an Immigration Judge (“IJ”) of his motion to reopen his in absentia

deportation order.

                                               I.

         In April 1995, an IJ ordered Patel deported in absentia when he failed to appear at

his deportation hearing. Patel remained in the United States thereafter and eventually

married a lawful resident. Patel applied for naturalization, but was taken into custody

in June 2007 because of the outstanding 1995 in absentia deportation order.

         Patel filed and was granted a motion to stay his deportation. He then applied to

reopen the deportation proceedings and rescind the in absentia order on the ground that

he did not receive proper notice of the 1995 hearing. On August 20, 2007, the IJ denied

Patel’s motion, finding that Patel “was clearly served personally with the [notice]

apprising him of the charges against him and the date of his hearing.” App. at 63. On

September 6, 2007, the Department of Homeland Security (“DHS”) deported Patel to

India.

         Patel appealed the denial of his motion to reopen, but the BIA held that it lacked




                     1
                      In his application for naturalization, Patel listed his first
              name as “Naimeshkumar.”

                                               2
jurisdiction over that appeal because Patel had already been deported. More specifically,

the BIA referenced 8 C.F.R. § 1003.3(e), which states that “[d]eparture from the United

States of a person who is the subject of deportation proceedings, prior to the taking of an

appeal from a decision in his or her case, shall constitute a waiver of his or her right to

appeal.” Patel timely petitioned this court for review.

       Patel’s primary arguments before us are that: (1) the BIA erred in holding that he

had waived his appeal by virtue of having been deported because that deportation was in

violation of the automatic stay found in 8 C.F.R. § 1003.23(b)(4)(iii)(C) (“[t]he filing of a

motion to reopen under paragraph (b)(4)(iii)(A) of this section shall stay the deportation

of the alien pending decision on the motion and the adjudication of any properly filed

administrative appeal”) and 8 U.S.C. § 1252b(c)(3) (“[t]he filing of a motion to reopen . .

. shall stay the deportation of the alien pending disposition of the motion”) (repealed

1996); (2) Patel’s deportation and the BIA’s decision should both be reversed because his

deportation violated his due process rights, as his fundamental rights to an independent

review of the in absentia order and his access to and ability to communicate with counsel

were intended to be protected by 8 C.F.R. § 1003.6(a) (a decision under which an appeal

may be taken “shall not be executed during the time allowed for the filing of an appeal

unless a waiver of the right to appeal is filed, nor shall such decision be executed while an

appeal is pending”); and (3) the BIA’s interpretation of § 1003.3(e) contravenes the

regulation’s explicit language.



                                              3
       The Government, after requesting three time extensions, filed a two page motion to

remand Patel’s case to the BIA for reconsideration of whether the BIA had jurisdiction in

light of 8 C.F.R. § 1003.23(b)(4)(iii)(C). Patel opposed the remand, arguing that,

although § 1003.23(b)(4)(iii)(C) indeed mandated that deportation be stayed during the

pendency of the time to appeal, remand to the BIA would be futile in light of the BIA’s

continued position that “it lacks authority to reopen removal, deportation, or exclusion

proceedings . . . if the alien has departed the U.S. after completion of those administrative

proceedings.” Petitioner’s Response to Respondent’s Motion to Remand to the Board of

Immigration Appeals at 2, No. 08-1676 (3d Cir. filed March 9, 2009).

       The clerk of this court then filed a letter on our behalf directing the parties to

submit memoranda addressing the impact on this case of our recent decision in Leslie v.

Attorney Gen., 611 F.3d 171, 180 (3d Cir. 2010), which held “that when an agency

promulgates a regulation protecting fundamental statutory or constitutional rights of

parties appearing before it, the agency must comply with that regulation. Failure to

comply will merit invalidation of the challenged agency action without regard to whether

the alleged violation has substantially prejudiced the complaining party.”

       In his response, Patel argued that Leslie was directly relevant to this case because 8

C.F.R. § 1003.6(a) is a regulation promulgated to protect the due process rights of

petitioners to a fair hearing and to access to counsel. The Government’s memorandum

disagreed, but instead of addressing the impact of Leslie, the Government argued for the



                                               4
first time that our earlier opinion in Bejar v. Ashcroft, 324 F.3d 127 (3d Cir. 2003), is

dispositive in this case because under its holding there was no regulatory violation made

in connection with Patel’s deportation. Consequently, the Government withdrew its

motion for remand.2



                    2
                      We find it very disturbing that the Government would fail
             to discover or draw our attention to a supposedly dispositive case
             until we invited supplemental briefing on a different point. This is
             especially troubling because the Bejar opinion is not in fact
             dispositive of Patel’s case, and because, as discussed below, the
             Government’s former motion to remand implied that different
             regulations applied to Patel than those that applied in Bejar.
             Indeed, it is clear that the Government’s current understanding is
             in error and that Patel was deported unlawfully.

                      In Bejar, we recognized that an alien who was found
             removable, and then removed before her time to appeal that
             disposition had tolled, was not removed in contravention of the
             regulations. Our holding turned on the premise that the
             immigration court proceedings were governed by 8 C.F.R. §
             3.23(b)(4)(ii) (now 8 C.F.R. § 1003.23(b)(4)(ii)), a regulation that
             provided only that the filing of a motion to reopen stays removal
             until the disposition of that motion. We noted other provisions
             specifically included language staying enforcement of an order
             until appeal, and we therefore assumed that the absence of any such
             language in 8 C.F.R. § 3.23(b)(4)(ii) was intentional. Significantly,
             in doing so we specifically contrasted 8 C.F.R. § 3.23(b)(4)(ii) with
             8 C.F.R. § 3.23(b)(4)(iii) (now 8 C.F.R. § 1003.23(b)(4)(iii)),
             which, in combination with 8 C.F.R. § 3.6(b) (now 8 C.F.R. §
             1003.6(b)), “requir[es] the stay of an alien’s removal during the 30-
             day appeal period from the denial of a motion to reopen filed in in
             absentia deportation and exclusion cases . . . .” 324 F.3d at 132.

                   The original 1995 charge filed against Patel was that he was
             deportable. The in absentia order was that he be deported.
             Moreover, the IJ’s decision addressed whether Patel’s motion to

                                              5
reopen satisfied the criteria found in 8 C.F.R. §
1003.23(b)(4)(iii)(A), the regulation regarding the recision of
“deportation or exclusion proceedings.”             Given these
circumstances, we conclude, as did the immigration courts, that
Patel’s case is governed by 8 C.F.R. § 1003.23(b)(4)(iii)(A) rather
than 8 C.F.R. § 1003.23(b)(4)(ii). Thus the holding of Bejar fully
supports the conclusion that Patel’s case should have been
automatically stayed through the time period that the regulations
gave him to appeal.

        The Government failed completely to acknowledge these
facts, despite the fact that the Government’s remand motion had
implicitly recognized that 8 C.F.R. § 1003.23(b)(4)(iii) applied in
Patel’s case. Regardless, we note that the 1996 amendments to the
INA stated that “any reference in law to an order of removal shall
be deemed to include a reference to an order of exclusion and
deportation or an order of deportation.” Pub. L. No. 104-208, §
309, 110 Stat. 3009, 3009-627 (1996). This does not mean that 8
C.F.R. § 1003.23(b)(4)(iii) has been written out of the regulations.
Indeed, the IJ apparently believed that that regulation was still
viable and applied it to Patel’s case. In any event, Patel’s
deportation proceedings and in abstentia order of deportation both
predated the 1996 amendments to the INA.

        In sum, the decisions of the immigration courts violated 8
C.F.R. §§ 1003.6(b) and 1003.23(b)(4)(iii)(C) by failing to stay
Patel’s removal to India during the time given for him to appeal.
In its brief, the Government asserts that “[s]hould this Court find
that the actions taken by DHS in violation of [8 C.F.R.] § 1003.6(a)
vitiates [sic] the Board’s determination below, this case should be
remanded back to the Board for a full hearing on the merits.”
Respondent’s Br. at 8. Because we agree that a remand is
warranted in light of the BIA’s erroneous interpretation of 8 C.F.R.
§ 1003.3(e), we need not decide whether Patel would be required
to show prejudice in order for us to enforce the 8 C.F.R.
§1003.23(b)(4)(iii)(C) automatic stay provision. See Leslie, 611
F.3d at 180.

                                 6
                                             II.

       Under the BIA’s interpretation of 8 C.F.R. § 1003.3(e), an alien deported by DHS

is deemed to have waived the ability to appeal a deportation order. We will give the

BIA’s interpretation of § 1003.3(e) controlling weight unless it is “plainly erroneous or

inconsistent with the regulation.” Star Enter. v. EPA, 235 F.3d 139, 147 (3d Cir. 2000)

(internal quotation marks omitted).

       To reach its conclusion that under § 1003.3(e) Patel’s deportation acted as a

waiver, the BIA necessarily equated the word “departure” with the words “deportation”

and/or “removed.” That position is untenable. First, the words “departure” and

“deportation” both appear in § 1003.3(e) but in different contexts, i.e., the subsection

applies to the “departure” of someone who is in “deportation proceedings.” Nor are the

two words used interchangeably in other parts of the regulatory scheme. For example, 8

C.F.R. § 1003.2(d) reads: “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.” Identical language is found in

8 C.F.R. § 1003.23(b)(1). Thus, those regulations specifically acknowledge when

“departure” is deemed to include “deportation.” Notably, C.F.R. §§ 1003.2(d) and

1003.23(b)(1) both address whether a motion is deemed to have been withdrawn by a

petitioner, a circumstance analogous to when a petitioner should be deemed to have



                                              7
waived an appeal.

       Further, the two words have different meaning in everyday speech. To “depart” is

to “go away” or to “leave,” an action that implies a volitional, self-motivated act.

Webster’s II New Riverside University Dictionary 363 (1984). “Departure” is defined as

the “act of leaving.” Id. To “deport” is to “expel from a country.” Id. at 364.

“Deportation” is the “[e]xpulsion of an undesirable alien from a country.” Id. In other

words, a deported alien is excluded from a country by others.3 Additionally, the use of

the word “departure” rather than “deportation” in 8 C.F.R. § 1003.3(e) is appropriate; it is

reasonable to deem an alien who has left the United States of his or her own volition

during a deportation proceeding to have waived the right to appeal any determination

resulting from those proceedings, while it is less equitable to so deem an alien who was

involuntarily removed (whether in accord with the regulations or otherwise).




                    3
                     We further note that in the wake of Union Pacific R.R. v.
            Brotherhood of Locomotive Engineers, 130 S. Ct. 584, 590 (2009),
            which held that administrative agencies cannot contract their
            statutory jurisdiction by regulations or decisions, it remains
            uncertain whether the BIA can categorically disavow jurisdiction
            over appeals by deported or departed petitioners, see
            Marin-Rodriguez v. Holder, 612 F.3d 591, 595 (7th Cir. 2010)
            (“The Board may well be entitled to recast its approach as one
            resting on a categorical exercise of discretion, but it cannot insist
            that it has elected to foreswear subject-matter jurisdiction that it
            possesses under a statute.”). As we hold that the BIA erred in
            interpreting § 1003.3(e) to deprive it of jurisdiction we need not
            pass on whether § 1003.3(e) permissibly could have.


                                              8
       In sum, the BIA’s interpretation of § 1003.3(e) was plainly erroneous. Therefore,

the BIA had jurisdiction to review the merits of Patel’s appeal.

                                            III.

       For the reasons set forth above, we will grant Patel’s petition for review and

remand to the BIA for proceedings consistent with this opinion.




                                             9
