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

                                                                            FILED
                                                                         November 3, 2008
                                       No. 07-60758
                                                                      Charles R. Fulbruge III
                                                                              Clerk
JOEL CASTILLO-PERALES

                                                  Petitioner

v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A34-339-852


Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Joel Castillo-Perales filed a motion to reopen his removal
proceedings more than ten years after he was deported, although he admits he
is still deportable, for the sole purpose of seeking a discretionary waiver from
deportation. The motion was denied for lack of jurisdiction by the immigration
judge and the Board of Immigration Appeals (“BIA”). Castillo now petitions this
court to review the BIA’s order. For the reasons stated herein, the petition is
DENIED.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-60758

                                  I. BACKGROUND
       Castillo is a native and citizen of Mexico who was admitted to the United
States on September 10, 1975 as a lawful permanent resident. In 1993, Castillo
pleaded guilty and was convicted in federal court of selling firearms to persons
without completing the paperwork required by ATF, in violation of 18 U.S.C.
§§ 2 and 922(b)(5). He was sentenced to 12 months of imprisonment and to three
years of supervised release.
       As a result of his firearms conviction, Castillo was served in May 1994
with a show cause order charging him with deportability. Castillo admitted to
the charge and was ordered deported to Mexico on May 19, 1994. He waived his
appeal to the BIA and was deported on May 20, 1994.
       Sometime after Castillo was deported, he filed a motion to vacate the
sentence in his criminal case pursuant to 28 U.S.C. § 2255. In 1998, the district
court granted the motion finding that Castillo should have been sentenced under
the misdemeanor provisions of 18 U.S.C. § 924(a)(3) rather than the felony
provisions of § 924(a)(1). Consequently, Castillo’s felony sentence was vacated
and reduced to a misdemeanor sentence.
       On March 28, 2007, Castillo filed a “Motion to Exercise Sua Sponte
Authority to Reopen the Removal Proceedings Based on Respondent’s Prima
Facie Eligibility to Apply for 212(c) Waiver Under [INS v. St. Cyr, 533 U.S. 289
(2001)].”    Although Castillo admits he is still deportable based on his
misdemeanor conviction, Castillo argued that the reduction of his sentence from
a felony to a misdemeanor made him eligible for a discretionary waiver from
deportation pursuant to the former § 212(c) of the Immigration and Nationality
Act (“INA”).1 In his motion, Castillo argued that the immigration judge had
jurisdiction to consider his motion to reopen, despite his deportation, because

       1
         Although the former § 212(c) was literally applicable only to exclusion proceedings,
it was interpreted by the BIA to authorize any permanent resident alien with a lawful
unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from
deportation. St. Cyr, 533 U.S. at 295.

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“[t]he St. Cyr decision constitutes a fundamental change in the law, which
qualifies as an ‘exceptional circumstance’ that merits sua sponte reopening.”
The immigration judge determined that it lacked jurisdiction to reopen Castillo’s
removal proceedings under 8 C.F.R. § 1003.23(b)(1) because Castillo filed the
motion subsequent to his departure from the United States.
      Castillo appealed to the BIA.         Citing 8 C.F.R. §§ 1003.23(b)(1),
1003.44(k)(1), and 1003.2(d), the BIA determined that the immigration judge
correctly concluded that it lacked jurisdiction to consider Castillo’s motion to
reopen. Castillo filed a timely petition for review in this court.
                               II. DISCUSSION
      Castillo challenges the BIA’s interpretation of its own regulations, an area
in which this court grants the BIA considerable latitude. Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003). “‘[W]hile an agency interpretation
of a regulation is entitled to due deference, the interpretation must rationally
flow from the language of the regulation.’” Id. (quoting Acadian Gas Pipeline
Sys. v. FERC, 878 F.2d 865, 868 (5th Cir. 1989)). Thus, the question in the
present case is whether the BIA’s conclusion that the BIA and the immigration
judge lacked jurisdiction to reopen a removal proceeding after Castillo departed
the United States rationally flows from the applicable regulations.
      Under BIA regulations, a motion to reopen or to reconsider a removal
proceding “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)(1) and 1003.2(d). The
BIA views the restriction as jurisdictional, and Castillo does not deny that he
departed the United States before filing his motion to reopen his deportation
proceedings.
      This court has already held that the BIA’s interpretation of
sections 1003.23(b)(1) and 1003.2(d) is reasonable, and thus, entitled to
deference. Navarro-Miranda, 330 F.3d at 676-77. In Navarro-Miranda, the

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petitioner was convicted of felony driving while intoxicated (“DWI”), was ordered
removed for having been convicted of an aggravated felony, and was deported to
Mexico. Id. at 674. This court, in an intervening decision, held that a DWI
conviction does not constitute an aggravated felony. Id.; see also United States
v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001) (holding that a DWI
conviction does not constitute a crime of violence as defined by 18 U.S.C. § 16(b)).
Navarro-Miranda moved to reopen the removal proceedings after he had
departed the United States on the basis that he was improperly deported. 330
F.3d at 674. The BIA denied the motion, determining that it lacked jurisdiction
to consider a motion to reopen made by a person who has already been deported
under § 3.2(d).2 Id. Navarro-Miranda filed a timely petition for review with this
court, arguing that the BIA should have sua sponte reopened his removal
proceedings under § 3.2(a) due to the intervening change in law. Id. at 675.
       This court held that “[t]he 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.” Id.
at 676. The court thus denied Navarro-Miranda’s petition for review of the BIA’s
order denying his motion to reopen his removal proceedings.                  Id. at 677.
Although the designation of the relevant regulations has since changed, the
substance of the regulations and the reasonableness of the BIA’s interpretation
of those regulations have not.
           We acknowledge that there is not uniformity among the circuits on this
issue. The Sixth Circuit has adopted this court’s analysis and held that an alien
is precluded from bringing a motion to reopen after he is deported. See Mansour
v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 2006). The Ninth and Fourth Circuits
have held that an alien may apply for a motion to reopen even after being


       2
         On February 28, 2003, 8 C.F.R. § 3.2 was redesignated as 8 C.F.R. § 1003.2 and 8
C.F.R. § 3.23 was redesignated as 8 C.F.R. § 1003.23. See 68 Fed. Reg. 9824, 9830 (Feb. 28,
2003).

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deported. See Lin v. Gonzales, 473 F.3d 979, 980 (9th Cir. 2007); William v.
Gonzales, 499 F.3d 329, 332 (4th Cir. 2007). In Lin, the Ninth Circuit held that
section 1003.23(b)(1) did not apply to bar reopening after deportation because
“[t]he regulation is phrased in the present tense and so by its terms applies only
to a person who departs the United States while he or she ‘is the subject of
removal . . . proceedings.’” Lin, 473 F.3d at 982 (quoting 8 C.F.R. § 1003.23(b)(1))
(emphasis and omissions in original). In William, the Fourth Circuit reached
the same result as the Ninth Circuit, although by way of different reasoning.
See William, 499 F.3d at 332. The Fourth Circuit held that section 1003.2(d) is
invalid because it inconsistent with 8 U.S.C. § 1229a(c)(7)(A), which provides
that “[a]n alien may file one motion to reopen proceedings under this section . .
. .” Id. Even if this court found the reasoning in Lin or William persuasive, we
are bound by Navarro-Miranda under this circuit’s strict application of stare
decisis. See FDIC v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998).
      Castillo argues that INS v. St. Cyr, 533 U.S. 289 (2001), a case decided two
years earlier than Navarro-Miranda, “constitutes a fundamental change in the
law, which qualifies as an ‘exceptional circumstance’ that merits sua sponte
reopening.” The petitioner in St. Cyr was a lawful permanent resident who
pleaded guilty to a deportable offense in 1996, before § 212(c) of the INA was
repealed. 533 U.S. at 293. His removal proceedings did not commence until
April 10, 1997, after § 212(c) was repealed. Id. During his removal proceedings,
he requested § 212(c) relief, which the BIA had interpreted as authorizing an
eligible permanent resident to apply for a discretionary waiver from deportation.
Id. The Attorney General refused to consider the application because he claimed
he had no discretion to grant § 212(c) relief after its repeal by Congress. Id. The
Supreme Court disagreed. It held that “§ 212(c) relief remains available for
aliens . . . whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for 212(c) relief at


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the time of their plea under the law then in effect.” 533 U.S. at 326. Thus,
under St. Cyr, the repeal of § 212(c) does not apply to Castillo.
       But the Supreme Court did not hold in St. Cyr that every alien who
entered plea agreements before § 212(c) was repealed has the unqualified right
to seek § 212(c) relief. In response to the Supreme Court’s decision in St. Cyr,
the BIA promulgated regulations to allow the continued filing of motions seeking
§ 212(c) relief. See 8 C.F.R. § 1003.44. Under those regulations, § 212(c) relief
is not available to “[a]liens who have departed the United States and are
currently outside the United States.” 8 C.F.R. § 1003.44(k)(1). Because Castillo
departed and is currently outside the United States, § 1003.44(k)(1) bars his
request for § 212(c) relief.
       In addition, this court notes that Castillo waited six years after St. Cyr
was decided to file his motion to reopen. A motion to reopen must normally be
filed within 90 days of a final decision. 8 U.S.C. § 1229a(c)(7)(C)(i). Assuming
arguendo that the Supreme Court’s decision in St. Cyr allowed the filing of a
motion to reopen, it would not justify the six year delay in the present case.3
       Accordingly, Castillo’s petition for review is denied, as is his motion
requesting this court to the urge the Government to take the same position in
similar cases.
       PETITION FOR REVIEW DENIED; MOTION DENIED.




       3
         In this regard, both Lin and William are distinguishable. In Lin, the petitioner was
seeking asylum and sought to reopen based on changed circumstances in the country of
nationality, 473 F.3d at 981, which falls into an exception to the 90 day deadline for filing a
motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). In William, the
petitioner filed his motion to reopen shortly after his conviction was vacated. 499 F.3d at 331.


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