ARMENDAREZ, 24 I&N Dec. 646 (BIA 2008)

Cite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
Matter of Andres ARMENDAREZ-Mendez, Respondent
File A014 720 015 – Laredo
Decided October 6, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Pursuant to 8 C.F.R. § 1003.2(d) (2008), the Board of Immigration Appeals lacks authority
to reopen removal, deportation, or exclusion proceedings–whether on motion of an alien or
sua sponte–if the alien has departed the United States after those administrative proceedings
have been completed.
FOR RESPONDENT: Fred Kowalski, Esquire, Brownsville, Texas
Chief Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and HESS, Board Members.
PAULEY, Board Member:
On December 11, 2000, the respondent was removed from the United States
pursuant to a final administrative order of removal issued by this Board.
Approximately 67 months later, he filed a motion requesting that we reopen
his proceedings sua sponte. In a decision dated September 26, 2006, we
denied the motion pursuant to 8 C.F.R. § 1003.2(d) (2006), which states in
relevant part that “[a] motion to reopen . . . shall not be made by or on behalf
of a person who is the subject of . . . removal proceedings subsequent to his or
her departure from the United States.” The respondent thereafter filed a
petition for review with the United States Court of Appeals for the Fifth
Circuit, which has remanded the matter to us “to consider the questions raised
by the Ninth Circuit’s holding in [Lin v. Gonzales, 473 F.3d 979 (9th Cir.
2007)].” For the reasons that follow, we reiterate that we lack jurisdiction over
the respondent’s motion, which will therefore be denied.
The respondent, a native and citizen of Mexico, was ordered removed in
2000 because of his 1995 conviction for possessing cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), an “aggravated felony” withinCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
On March 1, 2003, the former Immigration and Naturalization Service (“INS”) was
abolished and its functions were transferred to the Department of Homeland Security
pursuant to Title IV of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135, 2177. To avoid confusion, the former INS will be referred to in this decision as the
the meaning of section 237(a)(2)(A)(iii) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000). During the respondent’s initial
proceedings before the Immigration Judge, he requested a waiver under
former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), but the
Immigration Judge pretermitted that request pursuant to the Attorney General’s
then-controlling decision in Matter of Soriano, 21 I&N Dec. 516, 533-40 (BIA
1996; A.G. 1997). The respondent filed a timely appeal to this Board in which
he reiterated his claim to eligibility for section 212(c) relief, but we dismissed
the appeal in a final order dated November 13, 2000. On December 11, 2000,
the Department of Homeland Security (“DHS”)1
physically removed the
respondent to Mexico pursuant to our order.
In July 2006, the respondent filed the motion at issue here, in which he
requested that we reopen his removal proceedings sua sponte to permit him to
file an application for section 212(c) relief pursuant to INS v. St. Cyr, 533 U.S.
289 (2001). Motions seeking section 212(c) relief based on that decision are
subject to a regulatory filing deadline of April 26, 2005, see 8 C.F.R.
§ 1003.44(h) (2006), and cannot be filed at all by aliens who are outside the
United States or who have illegally reentered the country after removal.
8 C.F.R. § 1003.44(k). The respondent’s motion violated those regulatory
requirements, so he sought sua sponte reopening instead. We denied the
motion for lack of jurisdiction in our September 26, 2006, decision, which we
are now called upon to revisit.
The issue before us on remand is whether we have jurisdiction to entertain
the respondent’s motion requesting sua sponte reopening of his removal
proceedings, where that motion was filed after the respondent’s departure from
the United States pursuant to a final administrative order of removal.
A. Motions To Reopen and the “Departure Bar”
Since this Board was established in 1940 we have had the regulatory power
to entertain motions, subject to such limitations as the Attorney General mayCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
prescribe. See Regulations Governing Departmental Organization and
Authority, 5 Fed. Reg. 3502, 3504 (Sept. 4, 1940) (codified at 8 C.F.R.
§ 90.9). The particular limitation at issue here, the so-called “departure bar,”
was first imposed in 1952, by means of a regulation that stated as follows, in
pertinent part:
A motion to reopen or a motion to reconsider [before the Board of Immigration
Appeals] shall not be made by or in behalf of a person who is the subject of
deportation proceedings subsequent to his departure from the United States. Any
departure of such person from the United States occurring after the making of a
motion to reopen or a motion to reconsider shall constitute a withdrawal of such
Immigration and Nationality Regulations, 17 Fed. Reg. 11,469, 11,475
(Dec. 19, 1952) (codified at 8 C.F.R. § 6.2). Despite the passage of more than
55 years, the language of the current regulation bears a strong resemblance to
that of its earliest predecessor:
A motion to reopen or a motion to reconsider [before the Board of Immigration
Appeals] 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.
8 C.F.R. § 1003.2(d) (2008). Essentially identical language appears in the
regulation governing the filing of motions in Immigration Court. 8 C.F.R.
§ 1003.23(b)(1) (2008).
As early as 1954, we construed the departure bar rule as imposing a
limitation on our jurisdiction to entertain motions filed by aliens who had
departed the United States. Matter of G- y B-, 6 I&N Dec. 159, 159-60 (BIA
1954). We have reiterated that construction of the rule in an unbroken string
of precedents extending over 50 years, consistently holding that reopening
is unavailable to any alien who departs the United States after being
ordered removed. Matter of G-N-C-, 22 I&N Dec. 281, 288 (BIA 1998);
Matter of Okoh, 20 I&N Dec. 864, 864-65 (BIA 1994); Matter of Estrada,
17 I&N Dec. 187, 188 (BIA 1979), rev’d on other grounds, Estrada-Rosales
v. INS, 645 F.2d 819 (9th Cir. 1981); Matter of Palma, 14 I&N Dec. 486, 487
(BIA 1973); accord Matter of Yih-HsiungWang, 17 I&N Dec. 565 (BIA 1980).
Indeed, this jurisdictional principle is so well established that the respondent
expressly acknowledged its applicability in his motion, observing that “the
BIA and the IJs do not have jurisdiction to consider a motion to reopen
brought by a respondent who is outside of the United States, or reenter [sic]
illegally into the United States,” but asserting that “they retain the jurisdictionCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
2 In Lopez v. Gonzales, supra, at 692 n.2, the Supreme Court found that the case was
not moot despite the alien’s deportation, stating that “Lopez can benefit from relief in
this Court by pursuing his application for cancellation of removal, which the Immigration
Judge refused to consider after determining that Lopez had committed an aggravated felony.”
We of course do not review the Supreme Court’s determination whether a case before it is
moot. We note, however, that the Court did not specifically address the departure bar
regulation at issue here. The Court’s footnote appears to have sprung from the
Government’s brief acquiescing in the granting of the petition for a writ of certiorari, which
stated at footnote 5 therein, without mentioning the regulation at 8 C.F.R. § 1003.2(d), that
“were this Court to decide that [Lopez’s] cocaine conviction is not an aggravated felony, the
Board would address petitioner’s request for cancellation of removal, which is a form of
relief that petitioner can continue to pursue in administrative proceedings even while he is
in Mexico.”
to reopen these cases on their own motion.” But see Navarro-Miranda
v Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003) (upholding our determination
that we lack authority to reopen proceedings—even sua sponte—with respect
to aliens who have departed the United States).
B. Federal Circuit Court Decisions Interpreting 8 C.F.R. § 1003.2(d)
In 1961, nearly a decade after the departure bar rule went into effect,
Congress imposed a similar statutory restriction prohibiting the United States
courts of appeals from reviewing deportation orders if the alien “has departed
from the United States after issuance of the order.” See Act of September 26,
1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651 (codified at section 106(c)
of the Act, 8 U.S.C. § 1105a(c) (1964)). While that preclusion was in effect,
the Federal circuit courts had no occasion to review Board decisions denying
motions under the departure bar rule. In 1996, however, Congress repealed
former section 106 of the Act and replaced it with a new set of rules governing
judicial review of removal orders. See Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 306,
110 Stat. 3009-546, 3009-607 (effective Sept. 30, 1996) (“IIRIRA”). Under
those rules, an alien’s departure from the United States no longer forecloses
judicial review. See, e.g., Dada v. Mukasey, 128 S. Ct. 2307, 2320 (2008);
Lopez v. Gonzales, 127 S. Ct. 625, 629 n.2 (2006).2
After enactment of the IIRIRA, several Federal circuit courts, including the
Fifth Circuit, have interpreted the departure bar in a manner consistent with
our traditional understanding of that rule. See Navarro-Miranda v. Ashcroft,
supra; see also Shah v. Mukasey, 533 F.3d 25, 27 (1st Cir. 2008); Mansour
v. Gonzales, 470 F.3d 1194, 1200 (6th Cir. 2006); Singh v. Gonzales, 468 F.3d
135, 140 (2d Cir. 2006). However, in Lin v. Gonzales, supra, and
Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007), the NinthCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
Circuit espoused an interpretation of the departure bar rule that departs
substantially from our own. Furthermore, shortly after the Fifth Circuit
remanded this case to us, a divided panel of the Fourth Circuit invalidated
8 C.F.R. § 1003.2(d) outright, concluding that it is inconsistent with relevant
portions of the Immigration and Nationality Act. William v. Gonzales, 499
F.3d 329 (4th Cir. 2007). The Fifth Circuit remanded this matter to us with
instructions to consider the issues raised in Lin v. Gonzales, supra. However,
in order to ensure as comprehensive a treatment of the subject as possible, we
will also address William v. Gonzales, supra, in this decision. We begin by
discussing Lin v. Gonzales, however, because it is the decision that prompted
the present remand.
1. Lin v. Gonzales
In Lin v. Gonzales, supra, the Ninth Circuit reviewed a Board order
dismissing Mr. Lin’s appeal from an Immigration Judge’s decision denying his
motion to reopen under 8 C.F.R. § 1003.23(b)(1). That regulation, which is
substantively identical to 8 C.F.R. § 1003.2(d) but applicable to motions made
before Immigration Judges, provides that “[a] motion to reopen or to
reconsider shall not be made by or on behalf of a person who is the subject of
removal . . . proceedings subsequent to his or her departure from the United
States.” After quoting that language, the Lin court held as follows:
The government argues that under the regulation “a motion to reopen ‘[can]not be
made’ by an alien who was in proceedings after the alien’s ‘departure from the
United States.’” We disagree. The 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.” Because petitioner’s original removal
proceedings were completed when he was removed to China, he did not remain the
subject of removal proceedings after that time. While the regulation may have been
intended to preclude aliens in petitioner’s situation from filing motions to reopen their
completed removal proceedings, the language of the regulation does not
unambiguously support this result. Because ambiguity must be construed in favor of
the petitioner, we decline to adopt the government’s construction of the regulation and
cannot affirm the denial of petitioner’s motion to reopen on this ground.
Lin v. Gonzales, supra, at 982 (citations omitted). In a subsequent
precedent, the Ninth Circuit applied this same rationale to declare that
removed aliens were also not subject to the Board’s departure bar rule.
Reynoso-Cisneros v. Gonzales, supra. We respectfully disagree with the Ninth
Circuit’s understanding of the departure bar regulations.
The Lin and Reynoso-Cisneros courts held that the departure bar is
ambiguous because its reference to a person who “is the subject of” removal
proceedings may have been intended to apply only to a person against whomCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
Some aliens voluntarily depart the United States at the conclusion of removal proceedings,
but a voluntary departure order is no less a consummation of the proceedings than a final
order of removal. Matter of Goolcharan, 23 I&N Dec. 5, 7 (BIA 2001). In other cases,
removal proceedings are rendered “final” by issuance of an order terminating proceedings
or granting relief, but for obvious reasons aliens rarely seek reopening in such cases. 4 A motion to remand under 8 C.F.R. § 1003.2(c)(4) resembles a motion to reopen in some
respects, but such a motion does not seek “reopening” in the literal sense because the
Immigration Judge’s underlying decision—which may or may not have contained an order
of removal—is not “final” while it is on review before the Board. We observe that, in
contrast to the reopening regulations at issue here, the regulations addressing the waiver or
withdrawal of an appeal, 8 C.F.R. §§ 1003.3(e) and 1003.4 (2008), do properly employ the
present tense (i.e., “a person who is the subject of” removal proceedings) since those
regulations cover aliens who depart the United States either prior to the taking of an appeal
or during the pendency of an appeal.
removal proceedings are pending, and not to a person whose removal
proceedings have been completed. The Ninth Circuit’s interpretation is not
foreclosed as a matter of formal grammar. However, we are mindful of
the Supreme Court’s axiom that “[a]mbiguity is a creature not of definitional
possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115,
118 (1994); see also National Ass’n of Home Builders v. Defenders of
Wildlife, 127 S. Ct. 2518, 2534 (2007) (holding that “‘[t]he meaning—or
ambiguity—of certain words or phrases may only become evident when placed
in context.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 132 (2000))). When the departure bar rule is examined in context, we
believe it clearly applies to removed aliens.
The departure bar precludes certain aliens from filing motions to reopen
removal proceedings. With respect to the Board, the filing of a motion to
“reopen” presupposes that the administrative proceedings have been “closed”
or completed, typically by entry of a final administrative order of removal.3
Indeed, the close connection between reopening and “completed” proceedings
is reflected in the statutory scheme, under which the 90-day deadline for
filing a motion to reopen is measured from “the date of entry of a final
administrative order of removal.” Section 240(c)(7)(C)(i) of the Act, 8 U.S.C.
§ 1229a(c)(7)(C)(i) (2006). Because the completion of proceedings is a
condition precedent to the filing of a motion to reopen with the Board, we
cannot reasonably interpret 8 C.F.R. § 1003.2(d) as applying only to motions
filed by aliens in ongoing proceedings.4
The situation is slightly different in
Immigration Court, where motions to reopen may sometimes be filed by aliens
whose removal orders have not yet achieved “finality” by virtue of the
prospect of further administrative review by the Board. Even so, however,Cite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
5 Indeed, under Lin the only way an alien could run afoul of the departure bar would be to
reserve appeal and then both file a motion to reopen with the Immigration Judge and depart
the country before the expiration of the 30-day deadline for filing an appeal to the Board.
In all other cases, the Immigration Judge’s decision would either have become “final,” see
8 C.F.R. § 1003.39 (2008), meaning that the alien would no longer be one who “is the
subject of” removal proceedings, or the Immigration Judge would have lost authority over
the motion simply by virtue of the vesting of appellate jurisdiction with the Board. 8 C.F.R.
§ 1003.23(b)(1) (authorizing an Immigration Judge to reopen or reconsider any case in which
he or she has made a decision, “unless jurisdiction is vested with the Board of Immigration
Appeals”). We think it implausible that the departure bar can be reasonably interpreted to
apply only to such an unusual set of facts.
such motions would implicate the Lin court’s departure bar rule in only a small
number of cases, if ever.5
Moreover, treating the departure bar as applying only to aliens who leave
the country during ongoing proceedings would render 8 C.F.R. § 1003.2(d)
superfluous, because the Board has never had authority to entertain motions
filed by such aliens. Under our regulations, the departure of an alien whose
proceedings are pending before the Board effects an automatic withdrawal of
the alien’s appeal, such that the decision of the Immigration Judge becomes
final to the same extent as though no appeal had been taken. See 8 C.F.R.
§ 1003.4 (2008); see also Long v. Gonzales, 420 F.3d 516, 519-21 (5th Cir.
2005). The consequence of such a “withdrawal by departure” is that the Board
dismisses the appeal for lack of jurisdiction and returns the record to the
Immigration Court. Having rendered no decision in the matter, the Board is
thus without authority to act in the event the alien later seeks reopening.
Matter of Anselmo, 20 I&N Dec. 25, 33 (BIA 1989); Matter of Mladineo,
14 I&N Dec. 591, 592 (BIA 1974). In short, because 8 C.F.R. § 1003.4
deprives the Board of jurisdiction over motions filed by aliens who departed
the United States during the pendency of their proceedings, the interpretive
approach adopted by the Lin and Reynoso-Cisneros courts leaves 8 C.F.R.
§ 1003.2(d) with no practical effect.
We are familiar with the principle, adverted to by the Lin court, that
“lingering ambiguities in deportation statutes” must be construed “in favor of
the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). We
understand this principle to be one of “last resort,” however, employed only
after the other traditional methods of interpreting the statutory or regulatory
text have failed to resolve an ambiguity. E.g., United States v. Santos, 128
S. Ct. 2020, 2025 (2008); Burgess v. United States, 128 S. Ct. 1572, 1580
(2008); Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir. 2007); Lisbey
v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005). If the doctrine of “lenity”
were to be applied whenever there is ambiguity in an immigration provision,
that doctrine would entirely supplant the concept of administrative deferenceCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Yet the Supreme Court has expressly held that
Chevron deference is appropriate to the resolution of ambiguities in the
immigration statute. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (“It is
clear that principles of Chevron deference are applicable to [the immigration]
statutory scheme.”); see also Dada v. Mukasey, supra, at 2319 (settling an
unresolved statutory paradox under the Immigration and Nationality Act, but
acknowledging that a “regulation might be adopted to resolve the dilemma in
a different manner”). Thus, we respectfully decline to adopt the “rule of
lenity” as a threshold interpretive methodology.
Finally, the “ambiguity” identified by the Lin and Reynoso-Cisneros courts
pertains solely to the administrative motions regulations, and the Supreme
Court has held that an administrative agency’s interpretation of its own
regulations is entitled to “‘controlling weight unless it is plainly erroneous or
inconsistent with the regulation.’” INS v. Stanisic, 395 U.S. 62, 72 (1969)
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); see
also Ali v. Gonzales, 435 F.3d 544, 546 (5th Cir. 2006). As we explained
earlier, the departure bar has been a part of our regulatory framework for
more than half a century, and it has been construed in many of our precedent
decisions to preclude the filing of motions by aliens who have departed
the United States after the conclusion of proceedings. The Lin and
Reynoso-Cisneros courts did not discuss those precedents or declare them
“plainly erroneous or inconsistent with the regulation,” and we are not
persuaded that our decisions were wrongly decided. Moreover, the Fifth
Circuit has issued no precedent that is contrary to our own. Therefore, for the
reasons previously stated, we reaffirm our established understanding of the
regulation and respectfully decline to follow Lin v. Gonzales, supra, and
Reynoso-Cisneros v. Gonzales, supra, even within the Ninth Circuit. See Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005);
INS v. Stanisic, supra.
2. William v. Gonzales
Although we continue to espouse our traditional understanding of the
departure bar rule, we recognize that a divided panel of the Fourth Circuit has
declared 8 C.F.R. § 1003.2(d) to be invalid on its face, based on its ostensible
inconsistency with the Act. William v. Gonzales, supra. The majority in
William based its decision on a set of closely reasoned arguments relating to
the interplay between the statutory and regulatory schemes governing motions.
In order to explain our respectful disagreement with those arguments, we must
first lay the groundwork by examining the relevant statutes and regulations in
some detail.Cite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
6 We refer to motions to reopen other than those seeking rescission of in absentia orders of
removal, which are not involved here and are subject to different time and number limits.
Indeed, we express no opinion on whether an alien’s departure would foreclose the filing of
a rescission motion, as rescission can be viewed as vacating the in absentia removal order
from the outset. See Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314 (11th Cir.
As we noted previously, the Board has always had the regulatory power to
entertain motions, but for the first half-century of our existence, there was no
statute delineating the scope or limits of that power. The first statutory
treatment of motions before the Board came in section 545(d) of the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5066 (“1990
Act”), in which Congress directed the Attorney General to establish regulatory
time and number limits on motions in order to prevent unwarranted delay in
the execution of final deportation orders. The Attorney General implemented
that statutory mandate by comprehensively reorganizing the Board’s motions
regulation in a set of final rules issued in April 1996. Among other things,
those rules limited aliens to filing a single motion to reopen and required that
any such motion be filed within 90 days after entry of the final administrative
order of removal, deportation, or exclusion.6
The departure bar was retained
in the new regulations at 8 C.F.R. § 3.2(d) (1997). See Executive Office for
Immigration Review; Motions and Appeals in Immigration Proceedings,
61 Fed. Reg. 18,900, 18,905 (Apr. 29, 1996).
While section 545(d) of the 1990 Act represented a step toward the
imposition of statutory limits on the filing of motions, the first true statutory
codification of such limits did not occur until Congress enacted section 304(a)
of the IIRIRA, 110 Stat. at 3009-593. That statute incorporated substantial
portions of the Attorney General’s regulatory framework, including the time
and number limits on motions, while enumerating a number of exceptions to
those limits, which were also derived from the regulations. Id. (codified at
sections 240(c)(5) and (6) of the Act, 8 U.S.C. §§ 1229a(c)(5) and (6) (Supp.
II 1996)). Notably, the departure bar was not expressly incorporated into the
new statutory scheme.
The majority in William v. Gonzales, supra, concluded that the Board’s
departure bar rule was inconsistent with the statutory changes made by section
304(a) of the IIRIRA, for three principal reasons. First, the majority concluded
that the IIRIRA amendments had “at least implicitly repealed” the departure
bar by granting all aliens an unambiguous right to “file one motion to reopen”
removal proceedings, without expressly differentiating between aliens who had
remained in the United States after being ordered removed and those who had
departed. Id. at 332 & n.2. Secondly, the majority concluded that the
departure bar had been repealed by “‘negative inference’” because, unlike theCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
7 The William majority found the statute to be unambiguous, so its decision constitutes
binding precedent in removal proceedings arising within the jurisdiction of the Fourth
Circuit. We perceive some tension, however, between William and the Supreme Court’s
recent precedent in Dada v. Mukasey, supra, which treated the departure bar rule as a valid
constraint on the Board’s authority to adjudicate motions filed by the beneficiaries of
voluntary departure orders. Id. at 2315, 2318-20. Such treatment was essential to the Dada
Court’s portrayal of the problem to be remedied, i.e., that “the alien who is granted voluntary
departure but whose circumstances have changed in a manner cognizable by a motion to
reopen is between Scylla and Charybdis: He or she can leave the United States in
accordance with the voluntary departure order; but, pursuant to [8 C.F.R. § 1003.2(d)], the
motion to reopen will be deemed withdrawn. Alternatively, if the alien wishes to pursue
reopening and remains in the United States to do so, he or she risks expiration of the
statutory period and ineligibility for adjustment of status, the underlying relief sought.” Id.
at 2318 (citations omitted). We acknowledge, however, that neither party to Dada
v. Mukasey, supra, challenged the validity of 8 C.F.R. § 1003.2(d).
regulatory time and number limits on motions, it had not been incorporated
into section 304(a) of the IIRIRA. Id. at 333 (quoting Hamdan v. Rumsfeld,
126 S. Ct. 2749, 2765 (2006)).
In further support of its argument by negative inference, the William court
observed that Congress had carved out an exception to the time and number
limits for certain victims of domestic battery but had limited the availability
of that exception to aliens who were “physically present” in the United States
at the time of filing. Id. (citing section 240(c)(7)(C)(iv)(IV) of the Act). In the
majority’s view, the natural inference to be drawn from the imposition of a
physical presence requirement for those filing special motions was that
Congress intended not to impose such a requirement on those who filed
general motions. Id. Finally, the William majority invoked the rule against
superfluities, concluding that application of the regulatory departure bar would
render superfluous Congress’s enactment of the aforementioned “physical
presence” requirement for motions filed by aliens who had been victims of
domestic battery. Id. For the reasons that follow, we respectfully disagree
with the William court’s analysis.7
The William court made a notable point when it observed that section
240(c)(7) of the Act does not expressly distinguish between aliens who have
departed the United States after being ordered removed and those who have
remained. In our view, however, the Act taken as a whole does draw such a
distinction. See Dada v. Mukasey, supra, at 2317 (“‘In determining the
meaning of the statute, we look not only to the particular statutory language,
but to the design of the statute as a whole and to its object and policy.’”)
(quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991)).
In many ways the structure of the present immigration system is predicated
on the assumption that the physical removal of an alien from the United StatesCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
8 It may be that some removed aliens could obtain permission from the DHS to lawfully
reenter the United States for the purpose of pursuing reopening. Moreover, a removed alien
whose removal order is vacated by a Federal court of appeals or the United States Supreme
Court might also be permitted to lawfully reenter the United States and continue to pursue
is a transformative event that fundamentally alters the alien’s posture under the
law. Indeed, the ultimate purpose of a removal proceeding is, with respect to
removable aliens, precisely to bring about such a physical departure. As a
rule, once an alien has been removed, his underlying removal order is deemed
executed, the proceedings that led to that order are consummated, and
whatever immigration status the removed alien may have possessed before
departure is vitiated. Mrvica v. Esperdy, 376 U.S. 560, 563-64 & n.4, 567-68
(1964); Matter of Lok, 18 I&N Dec. 101, 106 (BIA 1981); Matter of
Mosqueda, 14 I&N Dec. 55, 56-57 (R.C. 1972); see also section 101(g) of
the Act, 8 U.S.C. § 1101(g) (2006) (“[A]ny alien ordered deported or
removed . . . who has left the United States, shall be considered to have
been deported or removed in pursuance of law, irrespective of the source
from which the expenses of his transportation were defrayed or of the
place to which he departed.”); cf. also Matter of Iqal, 10 I&N Dec. 460,
464-65 & n.4 (BIA 1964).
The consequence of departure for a removed alien is thus not just physical
absence from the country, but also a nullification of legal status, which leaves
him in no better position after departure than any other alien who is outside the
territory of the United States. In fact, an alien who physically departs the
United States after being ordered removed is in a substantially less
advantageous position than other aliens, because the existence of a removal
order renders him or her inadmissible and vulnerable to heightened criminal
sanctions and expedited removal procedures in the event of unlawful reentry.
See sections 212(a)(9)(A), (B)(i), (C)(i)(II), 241(a)(5), 276(a) of the Act,
8 U.S.C. §§ 1182(a)(9)(A), (B)(i), (C)(i)(II), 1231(a)(5), 1326(a) (2006).
Furthermore, an alien who has been removed is, like any other alien, forbidden
from crossing into the territory of United States except upon compliance with
the documentary and inspection requirements of the Act and its implementing
Responsibility for border security and the inspection and admission of aliens
from abroad is delegated to the Secretaries of Homeland Security and State,
but not to this Board. Thus, our inability to entertain motions filed by aliens
who have departed the United States is not just a matter of administrative
convenience. It is also an expression of the limits of our authority within the
larger immigration bureaucracy. Removed aliens have, by virtue of their
departure, literally passed beyond our aid.8
And the statutory scheme as aCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
any remedy that falls within the scope of the Court’s mandate. See Lopez v. Gonzales, supra,
at 629 n.2. The point, however, is that the Immigration Judges and this Board have been
given no authority to compel the DHS to admit or parole such aliens into the United States.
9 When the Attorney General proposed amendments to the Board’s motions rules in response
to the IIRIRA, several commentators suggested that the repeal of former section 106(c) of
the Act (which had barred deported aliens from filing petitions for review before the Federal
courts of appeals) necessitated deletion of the departure bar from the final rule. The
Attorney General rejected that suggestion:
The Department has decided not to adopt this suggestion and the interim
regulations will not be changed. No provision of . . . the Act supports reversing the
long established rule that a motion to reopen or reconsider cannot be made in
immigration proceedings by or on behalf of a person after that person’s departure
from the United States. . . . The Department believes that the burdens associated with
the adjudication of motions to reopen and reconsider on behalf of deported or
departed aliens would greatly outweigh any advantages this system might render.
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,321 (Mar. 6, 1997)
(Supplementary Information). This determination, made by the Attorney General in the
Supplementary Information to a formal rule, is binding on the Board. See Matter of A-S-B-,
24 I&N Dec. 493, 496 & n.3 (BIA 2008).
whole does not contemplate that a removed alien can circumvent the entire
admission and inspection regime simply by moving to reopen, especially
where such a motion is filed after the movant has unlawfully reentered the
United States. On the contrary, because the distinction between aliens who
have been removed and those who have not is so deeply ingrained in the
structure and policy of the Act, we are averse to any inference that Congress
meant to repeal the departure bar sub silentio simply because it did not
expressly reiterate that distinction in the language of section 240(c)(7) of the
With all due respect, we are also reluctant to accept the William court’s
determination that the regulatory departure bar was repealed by “negative
inference” because Congress did not incorporate it into the statutory language
of section 240(c)(7) of the Act. We see nothing in the language or legislative
history of section 304(a) of the IIRIRA that would lead us to conclude that it
was intended to override the existing regulatory scheme governing the filing
and adjudication of motions in removal proceedings. Rather, that amendment
simply gave statutory weight to the existing time and number limits on
motions. H.R. Rep. No. 104-828, at 212 (Sept. 24, 1996) (Conf. Rep.), 1996
WL 563320.9
Cite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
10 The respondent does not claim to be a victim of family violence so we have no present
occasion to decide how the departure of such a victim from the United States would affect
our jurisdiction.
In our view, this limited legislative purpose cautions against the drawing of
expansive negative inferences. Indeed, such inferences, carried to their logical
conclusion, would arguably invalidate the entire regulatory scheme governing
motions. For example, the Act only authorizes the filing of motions from “a
decision that the alien is removable from the United States” or from “a final
administrative order of removal.” Sections 240(c)(6)(A), (7)(C)(i) of the Act.
But the regulations authorize aliens to file many other types of motions,
such as “motions to remand,” 8 C.F.R. §§ 1003.2(b)(1), (c)(4), and motions to
reconsider that challenge the validity of interlocutory orders, orders
denying relief from removal, or orders denying motions to reopen, 8 C.F.R.
§ 1003.2(b)(2). None of these types of motions is expressly authorized by the
language of the Act, yet we think it unreasonable to assume that Congress has
forbidden them by negative inference. By the same token, we do not consider
Congress’s silence regarding the validity of the departure bar to be evidence
of its renunciation.
Finally, we respectfully disagree with the William court’s conclusion that
the departure bar was implicitly invalidated by Congress’s enactment of a
“physical presence” requirement for the filing of motions by certain victims of
domestic battery. The provision in question, which was added to the statute
in 2006, states that victims of family violence who move to reopen removal
proceedings for the purpose of seeking certain enumerated forms of relief are
not subject to the general time and number limits on motions to reopen if they
are, among other things, “physically present in the United States at the time of
filing the motion.” Section 240(c)(7)(C)(iv)(IV) of the Act. According to the
William court, the fact that this special physical presence requirement is not
echoed in the general rules governing motions gives rise to the negative
inference that Congress intended general motions to be available to aliens who
are not physically present in the United States, thereby invalidating the
departure bar by implication. Furthermore, in the William court’s judgment
the departure bar is invalid because its applicability would render the
aforementioned “physical presence” requirement superfluous.
We acknowledge that there is some incongruity between the departure bar
rule and the “physical presence” requirement that applies to motions filed by
victims of family violence.10 Moreover, we are mindful of the proposition that
a regulation may sometimes be superseded by the implications of a later
statute, at least where that statute was intended to effect a comprehensive
change in prior law. United States v. Fausto, 484 U.S. 439, 453 (1988). In
this instance, however, we have no reason to think that the physical presenceCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
requirement was intended to repeal the departure bar by implication or to
otherwise effect any global change in long-standing law. On the contrary, it
seems clear that the physical presence requirement has a much narrower
purpose, and operates solely within the context of Congress’s special rules for
battered aliens. An examination of the statutory context in which the physical
presence requirement was enacted helps to illustrate our point.
The original statutory framework created by section 304(a) of the IIRIRA
contained no special rules for motions filed by the victims of domestic battery.
Rather, the exceptions to the time and number limits on motions now set forth
at section 240(c)(7)(C)(iv) of the Act were first promulgated several years
later, in connection with the 2000 reauthorization of the Violence Against
Women Act, a broad legislative movement designed to enhance the protections
available to victims of domestic violence in all areas of federal law. Victims
of Trafficking and Violence Protection Act of 2000, Div. B of Pub. L. No.
106-386, tit. V, § 1506(c)(1)(A), 114 Stat. 1464, 1528 (“VTVPA”); see also
H.R. Rep. No. 106-939, at 113-14 (2000) (Conf. Rep.), 2000 WL 1479163
(explaining that the rationale for VTVPA § 1506 was to protect aliens who
were the victims of domestic abuse from inadvertently becoming disqualified
for relief as a result of interference from their abusive relatives). Having
created a humanitarian exception to the general time and number limits on
motions, however, Congress also created some uncertainty as to the breadth
of the exception. Most importantly, the language of the exception as originally
drafted was broad enough, given the VTVPA’s overtly remedial purpose, that
it could have been read to authorize the filing of motions from outside the
United States if the movant otherwise satisfied the statutory requirements.
Such an expansive reading of the VTVPA did not survive the 2005
amendments to that statute, which “clarified,” among other things, that all
special motions had to be filed by aliens who were “physically present” in the
United States. 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) (“VAWA 2005”); see also H.R. Rep. No.
109-233, at 123-24 (2005), 2005 WL 2331498 (emphasizing that section
825(a)(2) of the VAWA 2005 was a “clarifying” amendment). Our research
into the legislative history of the VAWA 2005 amendments has not uncovered
any clearly stated rationale for the “physical presence” requirement. However,
the creation of that requirement does not suggest to us that Congress intended
to repeal the departure bar or otherwise change the general rules governing the
filing of motions. On the contrary, the sequence of statutory enactments
leading to the physical presence requirement suggests, if anything, thatCite as 24 I&N Dec. 646 (BIA 2008) Interim Decision #3626
11 Because the physical presence requirement of VAWA 2005 is best understood as having
been enacted as a point of special emphasis, clarifying the scope of a prior exception to the
general motions rules, it is not rendered superfluous by the departure bar. See Ali v. Federal
Bureau of Prisons, 128 S. Ct. 831, 840 (2008) (holding the rule against superfluities
inapplicable where Congress may have enacted technically redundant or unnecessary
language as a point of special emphasis in order “to remove any doubt” on the point in
Congress was simply trying to delimit the exception it had created several
years earlier in the VTVPA.11
In any case, we do not believe it is necessary to know the precise rationale
behind the physical presence requirement in order to assess the continuing
validity of the departure bar regulation as applied to cases that are not covered
by the VAWA. As we see it, the special rules for VAWA motions, and the
subsequent refinements to those rules, reflect no goal other than to create
special rules for victims of family violence. Thus, to the extent any tension
exists between the physical presence requirement and the departure bar, we
believe the tension is best resolved by simply recognizing that the physical
presence requirement is unique. In other words, we see the VAWA provisions
as being self-contained and not designed to impact the law that governs all
other aliens.
For the foregoing reasons, we conclude that the departure bar rule
remains in full effect. We therefore respectfully decline to apply Lin
v. Gonzales, supra, and Reynoso-Cisneros v. Gonzales, supra, in cases arising
in the Ninth Circuit, and we will limit the application of William v. Gonzales,
supra, to cases arising in the Fourth Circuit. See supra n.7. Moreover, since
the respondent is disabled by the departure bar from invoking our jurisdiction
to consider his motion, we are likewise without jurisdiction to consider his
motion sua sponte. Navarro-Miranda v. Ashcroft, supra, at 675-76 (upholding
as reasonable our finding that sua sponte jurisdiction does not exist in this
circumstance). Accordingly, the respondent’s motion to reopen will be denied.
ORDER: The motion to reopen is denied.