          United States Court of Appeals
                      For the First Circuit


No. 12-2270

                     VLADIMIR PEREZ SANTANA,

                           Petitioner,

                                v.

                ERIC H. HOLDER, ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                   Howard, Lipez, and Kayatta,
                         Circuit Judges.


     Jeffrey B. Rubin and Kathleen M. Gillespie on brief for
petitioner.
     Trina Realmuto, with whom Beth Werlin was on brief, for
American Immigration Council, National Immigration Project of the
National Lawyers Guild, and Post-Deportation Human Rights Project,
amici curiae.
     Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Stuart F. Delery, Principal Deputy Assistant
Attorney General, Civil Division, and Colin J. Tucker, Trial
Attorney, Office of Immigration Litigation, were on brief, for
respondent.



                        September 27, 2013
           LIPEZ, Circuit Judge.       Born in the Dominican Republic in

1987, Vladimir Perez Santana immigrated to the United States and

became a lawful permanent resident ("LPR") in 1997. In March 2010,

Perez   Santana   pled   guilty   in   state   court   to   one   charge   of

possession of a controlled substance with intent to distribute. He

received a one-year probationary sentence.

           The Department of Homeland Security ("DHS") placed Perez

Santana into removal proceedings and found him both removable and

ineligible for discretionary relief.       After the agency ordered his

removal, Perez Santana sought vacatur of his criminal conviction on

constitutional grounds.     Successful in this effort, he then filed

a motion to reopen his proceedings before the Board of Immigration

Appeals ("BIA"), seeking vacatur of his order of removal as well.

By the time he sought reopening, however, Perez Santana had already

been removed to the Dominican Republic. The BIA denied his motion,

invoking a regulation known as the "post-departure bar," which

precludes a noncitizen from filing a motion to reopen "subsequent

to his or her departure from the United States."                   8 C.F.R.

§ 1003.2(d).

           Perez Santana petitions for our review, contending, inter

alia, that the post-departure bar conflicts with the clear language

of the immigration statute, which grants "[a]n alien" the right to

file a single motion to reopen. 8 U.S.C. § 1229a(c)(7). We agree.

The post-departure bar cannot prevent a noncitizen from invoking


                                   -2-
his statutory right to file a motion to reopen. We therefore grant

Perez Santana's petition.

                                       I.

           The facts of this case are straightforward.                        Perez

Santana was born in the Dominican Republic in 1987.                  When he was

nine years old, he immigrated to the United States with his family

as an LPR.       On March 9, 2010, Perez Santana pleaded guilty in

Massachusetts state court to one charge of possession with intent

to distribute a class D substance, namely, marijuana.                    He was

sentenced to one year of probation.

           On September 7, 2010, Perez Santana was issued a notice

to appear for removal proceedings, which charged that his criminal

conviction was a drug trafficking aggravated felony under the

immigration      statute.        See    8     U.S.C.     §§    1101(a)(43)(B),

1227(a)(2)(A)(iii).         Three months later, the immigration judge

("IJ")   found    Perez     Santana    removable    on   the   basis     of    his

conviction,   and    also    determined      that   because    the    conviction

constituted an aggravated felony, he was ineligible for relief from

removal.   See 8 U.S.C. § 1229b(a)(3) (requiring that applicant for

cancellation of removal for LPRs must not be convicted of "any

aggravated felony").        Perez Santana sought review before the BIA,

which applied its prior precedent on this subject and dismissed his




                                       -3-
appeal.1   See Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702

(BIA 2012).     The BIA's order was entered, and Perez Santana's

removal became final on April 16, 2012.

           On May 23, 2012, Perez Santana filed a motion to withdraw

his plea in the Massachusetts state courts.                 He contended that

under the Supreme Court's then-recent decision in Padilla v.

Kentucky, 559 U.S. 356 (2010), his plea was taken in violation of

his Sixth Amendment right to the effective assistance of counsel

because    he   was    not    informed    of   the   potential     immigration

consequences of his conviction.

           While      Perez   Santana    sought   vacatur    of   his   criminal

conviction, he also sought to stay his removal before the DHS.

Sometime in May 2012, DHS denied his request for a stay and

deported him to the Dominican Republic on May 29, 2012.2

           On July 11, 2012, after initially denying Perez Santana's

motion to withdraw his plea, the Massachusetts court reconsidered


     1
        Although the validity of the agency's finding of
removability is not before us, it is noteworthy that this
determination relied on our opinion in Julce v. Mukasey, 530 F.3d
30 (1st Cir. 2008), which held that a Massachusetts conviction for
possession of marijuana with intent to distribute was categorically
a drug trafficking aggravated felony. The Supreme Court abrogated
Julce in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), holding that
an analogous Georgia conviction for possession with intent to
distribute was not a drug trafficking aggravated felony. Id. at
1693-94.
     2
      Perez Santana has not identified documentation in the record
confirming that he sought and was denied a stay of removal, instead
relying on assertions from his briefs to the agency.            The
government does not dispute this fact, however.

                                        -4-
and granted his motion.   Perez Santana immediately filed a motion

to reopen his removal proceedings before the BIA, eighty-eight days

after his removal became final.        He argued that because his

criminal conviction was now vacated, it could no longer serve as a

ground for his removal.

           On September 24, 2012, the BIA returned Perez Santana's

motion to the IJ without further action, concluding that the post-

departure bar prevented him from filing a motion to reopen once he

departed the United States. See 8 C.F.R. § 1003.2(d); see also id.

§ 1003.23(b)(1).    The BIA also relied on its prior opinion in

Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008), which

held that the post-departure bar divested it of jurisdiction to

consider a motion to reopen filed by a noncitizen subsequent to his

departure from the United States.

           Perez Santana timely sought review before this court of

the denial of his motion to reopen.3

                                II.

           We review the BIA's denial of a motion to reopen for

abuse of discretion.   Bead v. Holder, 703 F.3d 591, 593 (1st Cir.

2013).   Under this standard, the petitioner must demonstrate that

"'the BIA committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way.'"   Id. (quoting Raza v.


     3
      Petitioner ceded his oral argument time to counsel for amici
curiae, whom we thank for their able presentation of the arguments
we address today.

                                -5-
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).                 Perez Santana's

primary contention is that the agency committed a legal error when

it concluded that the post-departure bar divested it of the ability

to consider his motion to reopen. Our review of legal questions is

de   novo,    "with     deference    given    'to      the   BIA's    reasonable

interpretations of statutes and regulations falling within its

purview.'"     Aponte v. Holder, 683 F.3d 6, 10 (1st Cir. 2012)

(quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir. 2011)).

A.   The Motion to Reopen Statute and the Post-Departure Bar

             "The    motion   to   reopen    is   an   'important     safeguard'

intended 'to ensure a proper and lawful disposition' of immigration

proceedings."       Kucana v. Holder, 558 U.S. 233, 242 (2010) (quoting

Dada v. Mukasey, 554 U.S. 1, 18 (2008)). The procedure is codified

in a statute, 8 U.S.C. § 1229a(c)(7)(A), which provides that "[a]n

alien may file one motion to reopen proceedings."                    The statute

expressly prescribes other requirements, including that the motion

"state the new facts that will be proven at a hearing to be held if

the motion is granted," id. § 1229a(c)(7)(B), that the motion "be

supported by affidavits or other evidentiary material," id., and

that the motion "be filed within 90 days of the date of entry of a

final administrative order of removal," id. § 1229a(c)(7)(C)(i).

Importantly, the statute does not denominate a physical presence or

geographic limitation in its general provisions.




                                      -6-
          The    statute   carves   out    certain    exceptions    to   these

general requirements.      Applicants for asylum, for example, are

exempt from the ninety-day time limit if their application is based

on evidence of changed country conditions in the country to which

they are to be removed, and "if such evidence is material and was

not available and would not have been [previously] discovered or

presented."     Id. § 1229a(c)(7)(C)(ii).        There is also a special

rule for battered spouses, which extends the filing deadline to one

year and waives the numerical limitation.            Id. §§ 1229a(c)(7)(A),

1229a(c)(7)(C)(iv).        In   contrast    to   the    statute's    general

provisions, the special rule for battered spouses requires the

noncitizen to be "physically present in the United States at the

time of filing the motion."      Id. § 1229a(c)(7)(C)(iv)(IV).

          In its current form, the post-departure bar comprises two

separate regulations, one of which applies to motions filed before

the BIA and the other to motions filed before the IJ.          See 8 C.F.R.

§ 1003.2(d) (BIA); id. § 1003.23(b)(1) (IJ).            Though codified in

different sections, the regulations contain the same language:

          A motion to reopen . . . 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 . . .
          shall constitute a withdrawal of such motion.

8 C.F.R. § 1003.2(d); see also id. § 1003.23(b)(1).

                                    -7-
           The BIA has published a precedential opinion upholding

the post-departure bar's validity. In Matter of Armendarez-Mendez,

the BIA construed the post-departure bar as a limitation on its own

jurisdiction and decided that the agency therefore lacked the power

to entertain motions to reopen filed by noncitizens who had

departed the United States.   24 I. & N. Dec. at 648-49, 660.

B.   Pena-Muriel and Subsequent Litigation Concerning the Post-
Departure Bar

           This case is not the first time we have addressed the

validity of the post-departure bar.     In Pena-Muriel v. Gonzales,

489 F.3d 438 (1st Cir. 2007), the petitioner asserted that the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

("IIRIRA") abrogated the regulation we now know as the post-

departure bar. This is true, the petitioner asserted, because

IIRIRA repealed statutory provision 8 U.S.C. § 1105a(c) (1994)

(repealed by Pub.L. No. 104–208, Title III, § 306(b), 110 Stat.

3009, 3009-612).   The repealed statute precluded a federal court

from reviewing "[a]n order of deportation . . . if the alien . . .

has departed from the United States after the issuance of the

order."   8 U.S.C. § 1105a(c) (1994).

           Pena-Muriel contended that the post-departure bar was

"inextricably linked" with this judicial review provision, and that

its deletion "signaled [Congress's] intent" that the government

should cease enforcing the post-departure regulation as well.

Pena-Muriel, 489 F.3d at 441. We disagreed, explaining that "[t]he

                                -8-
Attorney General's authority to prohibit consideration of motions

to reopen from aliens who have departed the United States did not

originally depend upon the statutory language in § 1105a(c)." Id.

Thus, that provision's repeal did not, by extension, abrogate the

post-departure bar.   Id.

          Pena-Muriel petitioned for rehearing en banc, arguing

that the text of the motion to reopen statute unambiguously gave a

noncitizen the right to file a motion to reopen regardless of the

noncitizen's geographic location at time of filing.   See 8 U.S.C.

§ 1229a(c)(7)(A).   Pena-Muriel's contention, raised for the first

time via his petition, relied on a statutory provision separate

from the repealed judicial review provision he invoked in the

merits briefing. See Part II.C.2, infra. In our order denying the

petition, we observed that "[w]hen this case was presented to the

panel, petitioner [had] presented only one statutory argument."

Pena-Muriel v. Gonzales, 510 F.3d 350, 350 (1st Cir. 2007).     We

added that, "[n]ot having been asked to do so, we did not decide"

whether the post-departure bar conflicted with the motion to reopen

statute, and we declined to resolve the question on rehearing. Id.

As a result, the parties agree that our opinion in Pena-Muriel does

not control the outcome of this case.

          Since we decided Pena-Muriel, the validity of the post-

departure bar has been the subject of substantial litigation in the

federal courts of appeals.   Six of our sister circuits have held


                                -9-
that the post-departure bar conflicts with the clear language of

the motion to reopen statute.        See Garcia-Carias v. Holder, 697

F.3d 257, 264 (5th Cir. 2012); Lin v. U.S. Att'y Gen., 681 F.3d

1236, 1241 (11th Cir. 2012); Contreras-Bocanegra v. Holder, 678

F.3d 811, 819 (10th Cir. 2012) (en banc) (unanimously overturning

prior panel decision); Prestol Espinal v. Att'y Gen., 653 F.3d 213,

217–18 (3d Cir. 2011); Reyes-Torres v. Holder, 645 F.3d 1073,

1076–77 (9th Cir. 2011); William v. Gonzales, 499 F.3d 329, 332

(4th Cir. 2007).      Another three have struck down the regulation as

an impermissible contraction of the agency's jurisdiction, holding

that   the   agency   cannot   disclaim   authority   that   Congress   has

expressly conferred upon it.      See Luna v. Holder, 637 F.3d 85, 100

(2d Cir. 2011); Pruidze v. Holder, 632 F.3d 234, 239 (6th Cir.

2011); Marin-Rodriguez v. Holder, 612 F.3d 591, 595 (7th Cir.

2010).

             As matters currently stand, the rule in every circuit to

have addressed the arguments petitioner raises here is that the

post-departure bar either conflicts with the motion to reopen

statute, or cannot be justified as a jurisdictional limitation.

C.   The Chevron Analysis

             Against that backdrop, we now address whether the post-

departure bar is a valid exercise of the discretion conferred upon

the agency by the immigration statute. Resolution of this question

requires that we apply the framework set forth in Chevron, U.S.A.,


                                   -10-
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). The Chevron inquiry proceeds in two steps. First, we look

to the statute to ascertain whether "Congress has directly spoken

to the precise question at issue."      Id. at 842.   If the statute is

clear in its meaning, we must "give effect to the unambiguously

expressed intent of Congress."    Id. at 842-43.

            The analysis begins with the statute's language.       "In

determining whether a statute exhibits Chevron-type ambiguity, . .

. courts look at both the most natural reading of the language and

the consistency of the 'interpretive clues' Congress provided."

Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005) (quoting Gen.

Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586 (2004)).       We

may also look to legislative history "to see if any 'serious

question . . . even about purely textual ambiguity' is left."      Id.

at 23 (quoting Gen. Dynamics Land Sys., 540 U.S. at 600).

            Second, "[i]f, after applying these interpretive rules,

we conclude that the statute is ambiguous," we move to the next

step of the analysis.   Saysana v. Gillen, 590 F.3d 7, 13 (1st Cir.

2009).    Importantly, we take this step only "when the devices of

judicial construction have been tried and found to yield no clear

sense of congressional intent."   Gen. Dynamics Land Sys., 540 U.S.

at 600.   At Chevron's second step, the inquiry focuses on "whether

the agency's answer is based on a permissible construction of the

statute."    Chevron, 467 U.S. at 843.       If so, we "defer to an


                                 -11-
agency's        interpretive        regulation     unless     it    is   'arbitrary,

capricious, or manifestly contrary to the statute.'"                     Saysana, 590

F.3d at 13 (quoting Chevron, 467 U.S. at 844).

                Perez Santana contends that the plain language of the

motion to reopen statute forecloses the agency from adding a

geographic limitation to his ability to seek reopening of his

proceedings.           The government replies that the lack of an express

geographic restraint should be construed as silence about the

location of the noncitizen at time of filing.                      This silence, the

government says, results in a statutory "gap" or ambiguity that the

government is permitted to fill with the post-departure bar.

                1.    The Statutory Text

                Looking first to the statutory text, the motion to reopen

statute states that "[a]n alien may file one motion to reopen

proceedings."          8 U.S.C. § 1229a(c)(7)(A).        The immigration statute

in turn defines "alien" as "any person not a citizen or national of

the United States."            8 U.S.C. § 1101(a)(3).          Thus, the provision

unambiguously confers upon "an alien" the authority and the right

to   file       a    motion   to   reopen,   in    language    that   admits    of   no

exceptions. See Dada, 554 U.S. 1, 15 (2008) ("[T]he statutory text

is plain insofar as it guarantees to each alien the right to file

'one motion to reopen proceedings under this section.'" (quoting 8

U.S.C.      §       1229a(c)(7)(A))).        The    relevant       language    nowhere




                                         -12-
prescribes, or even suggests, a geographic restriction on an "alien

[who] may file" the motion.4

           The    statute       does    describe   other    limitations    and

requirements on the right to file a motion to reopen, including

numeric   limitations,      8    U.S.C.    §   1229a(c)(7)(A),     evidentiary

requirements, id. § 1229a(c)(7)(B), and time deadlines, id. §

1229a(c)(7)(C)(i).      Once again, these particular exceptions do not

contain restrictions based on geography or the location of the

noncitizen   at   the   time     of    filing.     The   absence   of   such   a

limitation, despite the explicit enumeration of others, serves as

a strong indication that Congress imposed the restrictions that it

deemed important and declined to impose others.            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




     4
       The government posits that relying on the words "an alien"
would permit all sorts of noncitizens to file motions to reopen
"without regard to any other circumstance or condition," such as
"aliens who prevail in immigration proceedings, aliens who have
never been in immigration proceedings, and aliens who have never
even been in the United States." This attempt to conjure a parade
of horribles is a chimera. For one, the motion to reopen statute
is included in a set of provisions that prescribe the procedural
requirements of removal proceedings. See 8 U.S.C. §§ 1229a(a)-(b).
When read in context, the reopening statute clearly refers to
noncitizens who are or have been the subject of such proceedings,
not random noncitizens. We also question why noncitizens who have
won their proceedings, or those who have never been subject to
removal in the first place, would have an interest in filing
motions to reopen.

                                       -13-
Congress considered the issue of exceptions and, in the end,

limited the statute to the ones set forth.").

           Moreover, the special rule for battered spouses does

contain an explicit geographic limitation.            That subsection, among

other    requirements,       expressly    requires     that     "the   alien     is

physically present in the United States at the time of filing the

motion."   8 U.S.C. § 1229a(c)(7)(C)(iv)(IV).           This provision shows

that Congress knew how to impose a geographic restriction when it

wanted   to,   and    further    suggests      that   the    statute's     general

provisions do not contain such a limitation.                See Lin, 681 F.3d at

1240 ("[W]e can draw the negative inference that 'Congress knew how

to include a requirement of physical presence when it wished to do

so,' and intentionally chose not to require such presence for a

motion to reopen, except in the specified circumstances." (quoting

William, 499 F.3d at 333)).

           The government's arguments amount to nothing less than a

request to write words into the statute that are not there.

Essentially, the contention is that we should revise the text of 8

U.S.C. § 1229a(c)(7)(A) to say that "[a]n alien may file one motion

to   reopen    proceedings      under     this   section,      excepting    other

limitations    that    the    Attorney    General     may    prescribe."         The

consequence of the government's arguments is not limited to the

post-departure bar. Under its theory, the government possesses the

discretion     to    impose     other     substantive       limitations     on    a


                                        -14-
noncitizen's right to file a motion to reopen that lack any

foundation in the statutory language.               We decline to adopt such a

construction.

              2. The Regulation's          History       as   the     Source   of     the
              Statute's Ambiguity

              The government's primary defense of the regulation does

not   focus    on   the   statutory       text.         Instead,      the   government

constructs a narrative of the post-departure bar's long history and

contends that, when read in light of this history, the motion to

reopen    statute   is    merely    silent,       and    thus    ambiguous,      as   to

geographic restrictions.5

                      a. The History of the Motion to Reopen Proceeding
                      and the Post-Departure Bar

              The proceeding we now know as the motion to reopen

appeared as a form of relief in early twentieth century cases. See,

e.g., Ex Parte Chan Shee, 236 F. 579 (N.D. Cal. 1916). In 1941, the

Attorney    General      (through   the    Immigration          and   Naturalization

Service),     included    it   in   the    federal       regulations.          See    New

Regulations Governing the Arrest and Deportation of Aliens, 6 Fed.

Reg. 68, 71-72 (Jan. 4, 1941).        A motion to reopen was treated "'as


      5
        The government cites language from Pena-Muriel that
characterized Congress as "remain[ing] silent regarding the long-
standing   regulatory   bar   imposed   by   [the   post-departure
regulation]."   489 F.3d at 442.    As we stated earlier in the
opinion, however,"[t]he parties point[ed] to no statutory language
that explicitly addresses the issue" in Pena-Muriel. Id. at 441.
Any comment as to Congressional "silence" we made in our prior
opinion was addressed only to the arguments before us at the time.

                                      -15-
a matter for the exercise of [the government's] discretion,'" and

"judicial interference was deemed unwarranted."           Dada, 554 U.S. at

12-13 (quoting Wong Shong Been v. Proctor, 79 F.2d 881, 883 (9th

Cir. 1935)). For a long time, neither the statute nor the Attorney

General's regulations prescribed time limits on the filing of the

motion.   Id. at 13.

            In 1990, Congress became concerned that noncitizens were

abusing the procedure by filing motion after motion in order to

prolong their time in the United States.           Id.      The legislature

therefore   directed   the   Attorney    General   to    issue   regulations

limiting the time period for the filing of motions to reopen, as

well as restrictions on the number of motions that could be filed.

Id. Although the Attorney General investigated the issue and found

little evidence of abuse, the Department of Justice issued a

regulation imposing new time limits and restrictions on filings.

Id. (citing Executive Office for Immigration Review; Motions and

Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901,

18905 (1996)).      This new regulation imposed a ninety-day time

limit, and restricted noncitizens to the filing of a single motion.

Id.

            In 1996, Congress passed IIRIRA, which altered numerous

aspects of the immigration statute.        One of these changes was the

codification of the motion to reopen statute.           Id. at 14.   In doing

so, "Congress adopted the recommendations of the DOJ with respect


                                  -16-
to numerical and time limits," id., and clarified the procedure's

evidentiary requirements, see 8 U.S.C. § 1229a(c)(7)(B).                  The

amendment to the statute did not similarly adopt the post-departure

bar.

           In light of the history of Congress's interventions in

this field, the government contends that the "emphasis" of IIRIRA's

codification of the motion to reopen statute was the time and

number limitations enacted by the Attorney General via the 1990

regulations.   According to this line of reasoning, the statute is

merely "silent" regarding the applicability of the post-departure

bar,   permitting   the   executive   branch   to    "fill   the   gap"    by

prescribing geographic limitations on "a[n] alien['s]" statutory

right to file a motion to reopen.        In other words, the government

says that adopting petitioner's argument would require us to find

that the post-departure bar was "impliedly repealed" by IIRIRA,

notwithstanding the long history of the regulation and the lack of

any express statutory repeal.

                    b. Analysis

           The government's interpretive approach is a peculiar way

to construe a statute.       We have repeatedly observed that the

Chevron analysis begins with the statute's words.              See, e.g.,

Saysana, 590 F.3d at 13; Succar, 394 F.3d at 22-23.                Starting

instead with an exposition of the legislative and regulatory

history is inappropriate in this case.              Although history can


                                  -17-
illuminate ambiguous language in some circumstances, relying so

heavily on extra-statutory sources to read silence or ambiguity

into seemingly clear text runs counter to well-settled modes of

interpretation.

            The    government's    proposed      methodology     also   carries

certain dangers. As the Third Circuit has pointed out, this method

"manufactures an ambiguity from Congress' failure to specifically

foreclose   each    exception     that   could   possibly   be    conjured   or

imagined.   That approach would create an 'ambiguity' in almost all

statutes,     necessitating       deference      to    nearly     all   agency

determinations."      Prestol Espinal, 653 F.3d at 220.

            Moreover, the government would place upon Congress, when

enacting a new statute against a background regulatory scheme, the

burden of addressing each and every regulation that existed before

and expressly stating whether it survives the change in the

statute.      That argument is untenable.             As the Tenth Circuit

explained, "[t]o require an express repeal of a discretionary

regulation in this context would upend the fundamental principle

that regulations should interpret statutes and not the other way

around."    Contreras-Bocanegra v. Holder, 678 F.3d 811, 818 (10th

Cir. 2012).       Instead, "when faced with [] a legislative overhaul,




                                     -18-
agencies        should      recalibrate        their    regulations    to   ensure     they

maintain a statutory basis."6                  Id.

                 To be sure, the Supreme Court has sometimes required

clearer         statements      of   Congressional        intent    depending     on    the

circumstances.              To that end, the government relies heavily on

Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986),

for the proposition that "when Congress revisits a statute giving

rise       to   a    longstanding     administrative           interpretation     without

pertinent change, congressional failure to revise or repeal the

agency's         interpretation           is    persuasive       evidence     that     the

interpretation is the one intended by Congress."                            Id. at 846

(citation omitted) (internal quotation marks omitted).

                 Leaving aside any concerns we may have about the reach of

this language, the principle articulated in Schor does not apply to

this case.               Until Congress codified the motion to reopen, the

proceeding was a regulatory creation, rather than a statutory one.

In codifying the right, the legislature "transform[ed] the motion

to reopen from a regulatory procedure to a statutory form of relief

available           to    the   alien."         Dada,    554    U.S.   at   14.        This



       6
       The government may be in the process of reconsidering its
position, however. In response to a petition for rulemaking, the
Attorney General has announced "plans to initiate a separate
rulemaking proceeding to address the regulatory provision known as
the 'departure bar.'" 77 Fed. Reg. 59567, 59568 (Sept. 28, 2012).
The status of these proceedings is unclear and their outcome is
uncertain. Thus, neither the parties nor amici assert that these
proceedings moot this petition.

                                               -19-
transformation took a significant degree of discretion out of the

agency's hands and vested a statutory right in the noncitizen. See

Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010) ("Congress

amended the Immigration and Nationality Act [] by, among other

things, granting aliens subject to a removal order the right to

file one motion to reopen."); cf. Pruidze, 632 F.3d at 237-38

(characterizing     statute   as    an    "empowering,       not    a   divesting,

provision, as it grants the Board authority to entertain a motion

to reopen").     And Congress, by elevating the motion to reopen to a

statutory right and carefully delineating its contours, instituted

a "pertinent change" to any regulatory roadblock to the exercise of

this newly-created right. Cf. Prestol Espinal, 653 F.3d at 222 n.9

("Congress'     nuanced    consideration      of     which     limitations        and

regulations to codify offers stronger evidence of Congress' intent

than   does    Congress'   alleged       'silence'    with     respect       to   the

pre-existing post-departure regulation.").               In other words, the

statutory changes are inconsistent with the notion that Congress

simply   intended    to    stay    silent    regarding       so    substantial      a

limitation on the motion to reopen proceeding as the post-departure

bar.

              This is all the more true given the clarity of the

statutory     language.     See    id.    ("'[W]here     the      law   is    plain,

subsequent reenactment does not constitute an adoption of the

previous administrative construction.'" (quoting Brown v. Gardner,


                                     -20-
513 U.S. 115, 121 (1994))); see also Brown, 513 U.S. at 121

("[C]ongressional    silence     lacks    persuasive    significance,

particularly where administrative regulations are inconsistent with

the controlling statute." (citations omitted) (internal quotation

marks omitted)).    Here, Congress's intent is manifest, and we

decline to inject ambiguity into words that do not allow it.

           Indeed, the facts of Perez Santana's own case highlight

the folly that results from the government's attempts to conjure

ambiguity from the statute's plain meaning and coherent structure.

As noted, the motion to reopen statute allows the filing of a

single motion to reopen within ninety days after the final order of

removal.   8 U.S.C. § 1229a(c)(7)(C).     Not coincidentally, IIRIRA

added a provision that "requires the Attorney General to effectuate

physical removal of petitioners subject to a final order of removal

within ninety days of the order."    Coyt, 593 F.3d at 907 (citing 8

U.S.C. § 1231(a)(1)(A)).       The post-departure bar places those

statutory provisions in tension with one another by demanding the

removal of noncitizens on or before the ninety-day clock on their

ability to seek reopening has run.       See Contreras-Bocanegra, 678

F.3d at 817 ("If we were to uphold the regulation, the Department

of Homeland Security would be permitted . . . to unilaterally cut

short the congressionally mandated filing period in almost every




                                 -21-
case.").    If the post-departure regulation no longer bars the

consideration of a motion to reopen, this tension disappears.7

            As the Supreme Court has admonished, we should not

"adopt[] a construction of [the statute] which would, with respect

to an entire class of aliens, completely nullify a procedure so

intrinsic a part of the legislative scheme." Dada, 554 U.S. at 18-

19 (second alteration in original) (quoting Costello v. INS, 376

U.S. 120 127-28 (1964)).    Here, Perez Santana's order of removal

became final on April 16, 2012, when the BIA dismissed his direct

appeal.    Thereafter, he diligently pursued post-conviction relief

before the Massachusetts courts.   A mere two days after obtaining

vacatur of his plea, he sought reopening before the BIA and

asserted that the conviction that served as the basis of his

removal had been deemed unconstitutional.    This motion was filed

eighty-eight days after his order of removal became final, and two

days before the ninety-day deadline to seek reopening.




     7
       In Pena-Muriel, the government similarly relied on Schor to
argue that Congress's "silence" as respects the post-departure bar
should be construed as implicit endorsement of the regulation. 489
F.3d at 442-43.    We addressed this contention in the course of
analyzing the reasonableness of the government's interpretation
under the second step of Chevron. While acknowledging that Schor
provided some support for the agency's exercise of discretion, we
cautioned that the      "[t]he government's insistence that the
Attorney General's interpretation was the one intended by Congress
may be overreaching." Id. at 443. Now that we have had a full
opportunity to view the regulation in light of the overall
statutory scheme, we confirm that the government's statutory
argument was indeed incorrect.

                                -22-
             In other words, Perez Santana did everything right — he

assiduously sought and obtained what relief he could before the

state   courts,      and   timely   requested     that   his   proceedings   be

reopened. Unfortunately, his diligence was rendered useless due to

the government's exercise of its wholly discretionary authority to

remove him from the United States.                More fundamentally, that

unilateral action precluded him from vindicating the right Congress

granted him.      See Reyes-Torres, 645 F.3d at 1077 (observing that

petitioner had been "forcibly removed seven days after the final

order of removal was entered," and rejecting contention that

government "ha[s] the power to unilaterally reduce the time in

which Reyes–Torres could have filed his motion to reopen from the

statutorily mandated ninety days to seven days").

             Recognizing     the    peculiarity     of   its   position,     the

government suggests that a noncitizen can apply to the BIA for a

stay of removal, which would theoretically allow the noncitizen

enough time to seek reopening.          Yet the government characterizes

the BIA's ability to grant or deny a stay as discretionary.                  If

that    is   true,    then   conditioning    a    statutory    right   on    the

government's grace may be a less improper deviation from the

statute, but it is an improper one nonetheless.                See Contreras-

Bocanegra, 678 F.3d at 819 ("[W]e will not condition an absolute

statutory right on the vagaries of administrative discretion.").




                                      -23-
              Once   again,   the    facts    of    Perez   Santana's   case   are

illustrative.        Hoping to stave off removal until the state courts

resolved      his    motion   to    vacate    his    criminal   conviction,    he

unsuccessfully asked DHS to stay its hand.8                     The theoretical

possibility of delaying his removal was certainly of little aid to

Perez Santana, who was summarily shipped off to the Dominican

Republic before he could put his arguments before the BIA.                 Here,

too, Perez Santana did what the agency recommended and allowed, to

no avail.       These facts underscore the error in the government's

position, which would preclude Perez Santana from invoking an

"intrinsic [] part of the legislative scheme."                Dada, 554 U.S. at

19.9


       8
            Stays of removal may be sought from the IJs, the BIA, or
DHS.       See 8 C.F.R. §§ 1003.2(f), 1003.23(b)(1)(v).
       9
       Perez Santana raises an alternative argument, claiming that
the post-departure bar constitutes an impermissible contraction of
the agency's jurisdiction.    This argument focuses on Matter of
Armendarez-Mendez, 24 I. & N. Dec. 646. There, the BIA construed
the post-departure bar as a limitation on the jurisdiction
conferred upon it by the Attorney General and held that "[r]emoved
aliens have, by virtue of their departure, literally passed beyond
our aid." Id. at 656. Perez Santana responds that the agency
cannot contract the jurisdiction conferred upon it by Congress,
relying on Union Pacific Railroad v. Board of Locomotive Engineers,
558 U.S. 67, 81-82 (2009).
     With our resolution of Perez Santana's statutory argument,
there is no need to address the agency's view of its
"jurisdiction."   But we share the intuition of several of our
sister circuits that the statutory and so-called jurisdictional
"inquiries may not be altogether separate." Contreras-Bocanegra,
678 F.3d at 816 (citing Prestol Espinal, 653 F.3d at 218 n.4).
Moreover, the Supreme Court's recent opinion in City of Arlington
v. F.C.C., 133 S. Ct. 1863 (2013) casts serious doubt on whether
Perez Santana's arguments are truly distinguishable. See id. at

                                       -24-
              In sum, "[t]he government's argument is undermined by the

text and structure of the statute as well as related provisions" of

the statutory scheme.       Taing v. Napolitano, 567 F.3d 19, 26 (1st

Cir. 2009).        Given our conclusion that the plain meaning of the

statute controls, we need not address the reasonableness of the

regulation under the second step of Chevron.

D. The Limitations of Today's Holding

              The government asks that if we hold that the post-

departure bar conflicts with the motion to reopen statute, we limit

such a holding to permit only timely, first motions to reopen filed

by noncitizens who have departed the United States. The government

observes that Perez Santana's arguments "depend on the premise that

[8   U.S.C.    §   1229a(c)(7)]   confers   a   statutory   right   to   seek

reopening," and argues that "such a right exists only insofar as an

applicant complies with the statute's requirements for filing a

motion to reopen."         Thus, the government suggests, the post-

departure bar remains validly applicable to motions filed after

ninety days, 8 U.S.C. § 1229a(c)(7)(C)(i), or second or subsequent

motions, id. § 1229a(c)(7)(A).       Because such motions fall outside

the statute, the argument goes, they must be construed as an appeal

to the agency's sua sponte and extra-statutory ability to reopen

proceedings, which is wholly a creature of agency discretion.



1868   ("[T]he    distinction   between    'jurisdictional'              and
'nonjurisdictional' interpretations is a mirage.").

                                    -25-
              Because the government's arguments have no effect on the

outcome of this case, we decline to address them in this opinion.10

Here, the parties do not dispute that Perez Santana filed his

motion within ninety days, that this is his first motion, and that

he seeks to avail himself of his statutory right to seek reopening.

Accordingly, Perez Santana's appeal may be resolved by our holding

that    the    post-departure   bar    cannot   be   used   to   abrogate   a

noncitizen's statutory right to file a motion to reopen.            We need

say no more at this juncture.11

                                      III.

              For the reasons stated, we grant the petition for review,

vacate the order of the BIA, and remand for further proceedings

consistent with this opinion.

              So ordered.




       10
       The government raises a similar argument in this appeal's
companion case, Bolieiro v. Holder, No. 12-1807, slip op. at 10-11
(1st Cir. Sept. 27, 2013).     We decline to address it in that
opinion as well, for somewhat different reasons.
       11
       We express no view on Perez Santana's reliance on Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007).

                                      -26-
