                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       REVISED APRIL 8, 2003                February 28, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 01-60945
                         con. w/02-60126
                       _____________________



     MANUEL NAVARRO-MIRANDA


                                    Petitioner

          v.

     JOHN ASHCROFT, ATTORNEY GENERAL


                                    Respondent

_________________________________________________________________

   Petitions for Review from the Board of Immigration Appeals

_________________________________________________________________

Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL, District Judge.*

KING, Chief Judge:

     Petitioner Manuel Navarro-Miranda seeks review of two

decisions by the Board of Immigration Appeals concerning his

deportation following a felony conviction for driving while

intoxicated.   We deny Navarro-Miranda’s petition for review of

his motion to reopen his removal proceedings.    As for Navarro-

     *
        District Judge of the Southern District of Texas, sitting
by designation.
Miranda’s petition for review of the denial of his motion to

reconsider, we dismiss it as untimely filed.

I.   FACTS AND PROCEDURAL BACKGROUND

     Manuel Navarro-Miranda (“Navarro”) was convicted on January

22, 1997, of driving while intoxicated.     This was Navarro’s third

DWI conviction in a six-year period, making it a felony under

Texas law.   TEX. PENAL CODE ANN. § 49.09(b) (1995).   The

Immigration and Naturalization Service (“INS”) initiated removal

proceedings against Navarro in November 1998.     The INS alleged

that Navarro was removable under 8 U.S.C. § 1227(a)(2)(A)(iii)

because his DWI conviction was an aggravated felony as defined by

8 U.S.C. § 1101(a)(43)(F).

     At a hearing, Navarro conceded that he was removable under

§ 1227(a)(2)(A)(iii).   The immigration judge issued an order of

removal concluding that Navarro’s DWI conviction was an

aggravated felony.   Navarro appealed this decision to the Board

of Immigration Appeals (“BIA” or “the Board”), which agreed that

the DWI conviction was an aggravated felony and affirmed the

decision.    Navarro sought no further review of the decision and

was ultimately deported to Mexico.

     On September 25, 2001, Navarro filed a motion with the BIA

requesting the Board to reopen his case sua sponte based on the

Fifth Circuit’s intervening decision in United States v. Chapa-

Garza, 243 F.3d 921 (5th Cir. 2001).     In Chapa-Garza, we held

that driving while intoxicated was not an aggravated felony.        Id.

                                  2
at 927.   Navarro argued that, because he had been deported on the

grounds that his DWI conviction was an aggravated felony, the

Board should now reopen his removal proceedings and, in light of

this change in the law, grant him relief from the removal order.

      On November 6, 2001, the BIA denied Navarro’s petition as

moot.   The Board held that it lacked jurisdiction to consider a

motion to reopen or a motion to reconsider made by a person who

has already been deported.   See 8 C.F.R. § 3.2(d) (2002):

      A motion to reopen or a motion to reconsider shall not be
      made by or on behalf of a person who is the subject of
      exclusion, deportation, or removal 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.

Id.   Navarro timely petitioned this court for review of that

decision.

      Navarro also filed with the Board a motion to reconsider its

decision denying his motion to reopen.    On January 25, 2002, the

Board declined to reconsider its decision.    The Board reasoned

that, at the time Navarro’s final order of removal was issued,

his DWI conviction was considered to be an aggravated felony.

Accordingly, his removal order was legally executed and his

removal proceedings were completed.    As a result, Navarro’s

motion to reopen was ineffective because he was moving to reopen

proceedings which were no longer pending.    The Board also noted

that it lacked the authority to compel the INS either to “re-

                                 3
admit the respondent to the United States as a lawful permanent

resident or to parole him into this country so that he can seek

reinstatement of his lawful permanent resident status.”

      Navarro appeals this decision as well.      His petition for

review was mailed on February 21, 2002.       However, it was not

received and filed until February 26, 2002.

II.   NAVARRO’S MOTION TO REOPEN THE REMOVAL PROCEEDINGS

      At the time of his original deportation hearing, Navarro

conceded that he was removable under the law that made his DWI

conviction an aggravated felony.       After the Board issued its

removal order, Navarro could have petitioned this court for

review of the decision; he failed to do so.       Once Navarro was

deported, therefore, his removal proceedings were completed and

final.   See Stone v. INS, 514 U.S. 386, 398 (1995) (“Deportation

orders are self-executing orders, not dependent upon judicial

enforcement.”).

      Notwithstanding the finality of his proceedings, Navarro

argues that the Board should reopen them on its own motion under

§ 3.2(a) and grant him relief.     See 8 C.F.R § 3.2(a) (“The Board

may at any time reopen or reconsider on its own motion any case

in which it has rendered a decision.”).       Navarro concedes that,

because he has already been deported, the BIA lacks jurisdiction

to consider any motion filed on his behalf to reopen his removal

proceedings.   See 8 C.F.R. § 3.2(d) (2002).      However, Navarro

argues that the intervening change in the law imposes a duty on

                                   4
the BIA to reopen the case on its own motion and reexamine the

removal order in light of Chapa-Garza.

     The Board considered Navarro’s motion to be “moot”; the

execution of the removal order resolved any remaining case or

controversy between Navarro and the INS.    As a result, the Board

interpreted its § 3.2(a) power to reopen on its own motion as

being subject to the § 3.2(d) requirement that the alien not have

been deported.    Because the Board considers § 3.2(d) to be

jurisdictional, it concluded that Navarro’s deportation deprived

the Board of any further jurisdiction over motions brought

relating to his removal proceedings.

     Thus, the Board has concluded that § 3.2(d) trumps the power

granted by § 3.2(a) where the alien has been deported; Navarro

challenges this interpretation.    The question of the interplay

between § 3.2(a) and § 3.2(d) has not been considered in any

jurisdiction.    “Courts grant an agency’s interpretation of its

own regulations considerable legal leeway.”     Barnhart v. Walton,

535 U.S. 212, 217 (2002).    However, “[w]hile an agency

interpretation of a regulation is entitled to due deference, the

interpretation must rationally flow from the language of the

regulation.”     Acadian Gas Pipeline Sys. v. FERC, 878 F.2d 865,

868 (5th Cir. 1989); see also INS v. Aguirre-Aguirre, 526 U.S.

415, 425 (1999) (“[J]udicial deference to the Executive Branch is

especially appropriate in the immigration context.”).



                                   5
     After examining the regulations closely, we conclude that

the BIA’s interpretation of the provisions of § 3.2 is

reasonable.    The BIA may reopen on its own motion “in exceptional

circumstances.”    In re J– J–, 21 I. & N. Dec. 976 (1997).   The

BIA has previously taken this step in response to a change in the

law concerning the alien’s removable offense.    See In re Vasquez-

Muniz, 23 I. & N. Dec. 207 (2002) (reopening decision sua sponte

where Ninth Circuit subsequently reclassified alien’s conviction

for possession of a weapon by a felon as an aggravated felony);

see also In re X– G– W–, 22 I. & N. Dec. 71 (1998) (reopening sua

sponte after enactment of IIRIRA significantly changed applicable

asylum law).   In neither case, though, had the alien been

deported at the time the Board reopened the case; motions to

reconsider pursuant to § 3.2(b) (Vasquez-Muniz) and § 3.2(c) (X–

G– W–) were untimely filed, and the Board exercised its § 3.2(a)

power to consider the motions.

     Furthermore, § 3.2(a) is labeled as the “General” provision

of the statute.   Section 3.2(d) deals specifically with cases in

which the alien has already been deported.   As a fundamental rule

of statutory interpretation, specific provisions trump general

provisions.    In re Nobleman, 968 F.2d 483, 487 (5th Cir. 1992).

Thus, the BIA’s reasoning that the prohibition on motions to

reopen stated in § 3.2(d) overrides its § 3.2(a) power to reopen

on its own motion is a reasonable interpretation of the language

of these two regulations.

                                  6
     The BIA’s construction of § 3.2(d) as overriding § 3.2(a)

such that the Board lacks jurisdiction to reopen the removal

proceedings of a deported alien is a reasonable agency

interpretation of the regulations in question.   The Board’s

conclusion that the case is moot is consistent with the well-

established principle that “a final civil judgment entered under

a given rule of law may withstand subsequent judicial change in

that rule.”   Teague v. Lane, 489 U.S. 288, 308 (1989).   We

therefore deny Navarro’s petition for review of his motion to

reopen.

III. NAVARRO’S CLAIM THAT HE SHOULD BE AFFORDED RELIEF UNDER THE
     DECISION IN INS v. ST. CYR

     Navarro also claims that he should be eligible to apply to

the Attorney General for discretionary relief.   Prior to 1996, an

alien subject to a removal order could, so long as he met certain

threshold requirements, petition the Attorney General for

discretionary relief from that order.   8 U.S.C. § 1182(c) (1994).

However, in 1996, the enactment of the Illegal Immigration Reform

and Immigrant Responsibility Act (“IIRIRA”), combined with the

enactment of the Anti-Terrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), narrowed the scope of the Attorney General’s

power to conduct such discretionary review.   INS v. St. Cyr, 533

U.S. 289, 295 (2001).   Inter alia, the Attorney General now

lacked the power to review removal orders issued on the grounds

that the alien had committed an aggravated felony. Id. at 295-96.


                                 7
       In St. Cyr, though, the Supreme Court held that § 1182(c)

remained available to aliens “whose convictions were obtained

through plea agreements and who, notwithstanding those

convictions, would have been eligible for [§ 1182(c)] relief at

the time of their plea under the law then in effect.”       Id. at

326.       Navarro argues that he would have met the requirements and

that, because he entered a guilty plea, we should grant him the

right to petition the Attorney General for relief.      However,

unlike the petitioner in St. Cyr, Navarro’s removal order has

already been executed.

       St. Cyr is silent on the question of whether aliens who have

already been deported should be eligible for § 1182(c) relief.

The petitioner in St. Cyr was a resident alien applying for

habeas corpus relief from a deportation order; as discussed

above, because the petitioner had not yet been deported, his

removal proceedings were not yet closed.      Nothing in the St.

Cyr decision makes it retroactively applicable to closed cases.

As such, the general principle of non-retroactivity controls;

because Navarro’s removal was no longer still open on direct

review, any change in the law concerning eligibility for

discretionary waiver under § 1182(c) does not apply to Navarro’s

case.1      See Teague, 489 U.S. at 306-07.

       1
        The Department of Justice is currently circulating a
proposed rule in response to the St. Cyr decision which would
delineate which aliens may apply for relief under the former
§ 1182(c). See Section 212(c) Relief for Aliens With Certain

                                     8
IV.   NAVARRO’S PETITION FOR REVIEW OF THE DENIAL OF HIS MOTION
      FOR RECONSIDERATION

      An alien has thirty days from the date of the final order of

removal to file a petition for review.   8 U.S.C. § 1252(b)(1)

(2000).   This deadline is jurisdictional.   Guirguis v. INS, 993

F.2d 508, 509 (5th Cir. 1993).

      While Navarro mailed his petition for review of the denial

of his motion for reconsideration to this court within the

thirty-day deadline, that petition was not received and filed

until the deadline had passed.   The statute clearly states that

the petition must be “filed” within the thirty-day period.    In

Guirguis, the petitioner gave his petition to an immigration

detention officer to be mailed within the statutory period.      Id.

at 509.   When the petition did not arrive at the clerk’s office

to be filed until one day past the statutory period, we found it

to be untimely, refusing to apply the more lenient rules

available for pro se prisoners filing a notice of appeal.

Houston v. Lack, 487 U.S. 266, 276 (1988) (finding timely

petition for appeal given by pro se prisoner to prison official

within the statutory period).



Criminal Convictions Before April 1, 1997, 67 Fed. Reg. 52,627
(proposed August 13, 2002) (to be codified at 8 C.F.R. § 3.44).
Adoption of this new regulation could affect the retroactivity of
the St. Cyr decision; however, given that the rule is still in
the proposal stage, we decline to interpret or otherwise rule on
it. According to the law as it stands at this time, Navarro is
ineligible to apply for relief under the rule announced in St.
Cyr.

                                 9
     Given that we were unwilling to extend the period for a pro

se petitioner in detention, we see no reason to do so for a

petitioner who was assisted by counsel.   Navarro’s petition for

review of the Board’s denial of reconsideration of his motion to

reopen his removal proceedings is dismissed as untimely.

V.   CONCLUSION

     We DENY Navarro’s petition for review of the Board’s order

denying his motion to reopen his removal proceedings.   We DISMISS

as untimely Navarro’s petition for review of the denial of his

motion for reconsideration.




                               10
