In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3105
JOSE C ONCEPCION M ARIN -R ODRIGUEZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
A RGUED A PRIL 16, 2010—D ECIDED JULY 14, 2010
Before E ASTERBROOK, Chief Judge, FLAUM, Circuit Judge,
and H IBBLER, District Judge.^
E ASTERBROOK, Chief Judge. The Board of Immigration
Appeals believes that it lacks jurisdiction to reconsider
or reopen any of its decisions after the alien has left the
United States. We must decide whether the Board’s
understanding is correct.
^
Of the Northern District of Illinois, sitting by designation.
2 No. 09-3105
Jose Concepcion Marin-Rodriguez entered the United
States from Mexico by stealth in 1988 and remained
undetected until 2005, when he was convicted of using
fraudulent documents to obtain employment under
the pretense of citizenship. 18 U.S.C. §1546(a). He
sought cancellation of removal, contending that a return
to Mexico would cause hardship for himself and his
family. To be eligible for that relief, an alien usually
must submit biometric information that will enable the
agency to determine that he is who he claims to be, and
to find out whether he has any disqualifying criminal
convictions. 8 C.F.R. §1003.47(d). At a hearing in mid-
2006, Marin-Rodriguez was told to submit fingerprints
and warned that, if he did not, his application would be
denied. When the next hearing occurred 15 months later,
Marin-Rodriguez still had not complied. The immigration
judge deemed his application for cancellation of removal
to have been abandoned, see 8 C.F.R. §1003.47(c), and
ordered him removed because he is a citizen of Mexico
without a visa or any other claim of right to be in the
United States.
Marin-Rodriguez appealed to the Board of Immigration
Appeals. While that appeal was pending, he submitted a
set of fingerprints and asked the Board to remand to the
IJ for reconsideration. But in September 2008 the Board
deemed his motion untimely and dismissed his appeal.
Marin-Rodriguez protested the next month, via a motion
for reconsideration, that a motion for remand filed while
an appeal is pending cannot be untimely. (The submission
of fingerprints was late, but what the Board said is that
the motion was untimely.) On April 29, 2009, the Board
No. 09-3105 3
granted this motion and remanded to the IJ, stating that
its decision of September 2008 had been mistaken in
deeming untimely the motion for remand.
Before the IJ could act, however, the Department of
Homeland Security asked the Board to reconsider. It
observed that Marin-Rodriguez had been removed to
Mexico on April 10, 2009, after both the Bureau of Immi-
gration and Customs Enforcement and the Board had
denied his requests for a stay of removal. The Board
granted the Department’s motion and withdrew the
remand to the IJ. This order states: “As the respondent has
been removed, the Board was without jurisdiction to
consider the respondent’s motion to reconsider. See 8
C.F.R. §1003.2(d).” This is the order that Marin-Rodriguez
asks us to set aside.
The Board’s belief that it lacks jurisdiction to grant relief
to an alien who is no longer in the United States has a
pedigree dating to 1954. See Matter of G– y B–, 6 I. & N.
Dec. 159 (BIA 1954) (discussing the 1952 version of the
regulation), reaffirmed in Matter of Armendarez-Mendez,
24 I. & N. Dec. 646 (BIA 2008). One court of appeals has
held that the Board’s refusal to adjudicate these requests
conflicts with 8 U.S.C. §1229a(c)(7)(A). See William v.
Gonzales, 499 F.3d 329 (4th Cir. 2007). Other circuits have
held that the Board is entitled to treat an alien’s departure
as an event that deprives it of jurisdiction. See Toora v.
Holder, 603 F.3d 282, 285 (5th Cir. 2010); Mendiola v. Holder,
585 F.3d 1303 (10th Cir. 2009); Pena-Muriel v. Gonzales, 489
F.3d 438, 441–43 (1st Cir. 2007); Mansour v. Gonzales, 470
F.3d 1194, 1198 (6th Cir. 2006); Singh v. Gonzales, 468 F.3d
4 No. 09-3105
135, 140 (2d Cir. 2006). We were asked to consider this
subject in Munoz de Real v. Holder, 595 F.3d 747 (7th Cir.
2010), but bypassed it, because the alien’s request was
untimely. We cannot duck here, for the Board itself has
concluded that Marin-Rodriguez satisfied its timing
requirements.
The fourth circuit’s conclusion rests on §1229a(c)(7)(A),
which says that “[a]n alien may file one motion to
reopen proceedings under this section”. We don’t agree
with the fourth circuit’s understanding of this statute,
because the statement “a litigant may file motion X” differs
from the statement “the opportunity to file motion X
cannot be limited.” Consider a simple rule: “A motion
to reopen must be filed within 90 days of the final deci-
sion.” That does not detract from the entitlement to file
a motion, any more than the time limit for appeal under-
cuts the right to file one appeal. Cf. Lantz v. CIR, No. 09-
3345 (7th Cir. June 8, 2010) (the Treasury Department
is entitled to set a two-year deadline for seeking innocent-
spouse relief in a tax proceeding, even though the
statute lacks an outer limit). People have a right to trial
by jury, but not if they settle their dispute; criminal de-
fendants have a right to appeal, but they may surrender
that right as part of a plea bargain. United States v. Wenger,
58 F.3d 280 (7th Cir. 1995). And although an alien is
entitled to seek permission to depart voluntarily, someone
who applies for judicial review of a removal order gives
up that opportunity. Dada v. Mukasey, 554 U.S. 1 (2008);
8 C.F.R. §1240.26(b)(3)(iii), adopted and explained at 73
Fed. Reg. 76927 (Dec. 18, 2008). If the Supreme Court sees
no incompatibility between a statutory right to apply
No. 09-3105 5
for something and an implied-withdrawal approach, it is
hard to fault the Board for adopting a similar view. Thus
an alien with a right to move for reconsideration may
give up that right by a specified act. Whether the par-
ticular condition the Board has attached to exercise of
this particular entitlement—that the alien be in the United
States—is a proper one can’t be resolved by pointing to
the existence of the right. The validity of the condition
must be ascertained on other grounds.
The Board relied on 8 C.F.R. §1003.2(d), which reads:
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 re-
moval 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.
Similar language appears in 8 C.F.R. §§ 1003.4 and
1003.23(b). The regulation says that departure from the
United States “shall constitute a withdrawal” of the
motion. It is strange phraseology as applied to an alien
whose departure was beyond his control; it amounts to
saying that, by putting an alien on a bus, the agency may
“withdraw” its adversary’s motion. It is unnatural to
speak of one litigant withdrawing another’s motion. This
led us to wonder whether the regulation—which does not
6 No. 09-3105
use or allude to the concept of jurisdiction—should be
understood as meaning that the Board has decided to
exercise its discretion to deny all post-decision motions
by aliens who have left the United States. An agency
may exercise discretion categorically, by regulation, and
is not limited to making discretionary decisions one case
at a time under open-ended standards. See Lopez v.
Davis, 531 U.S. 230 (2001). But neither the Board nor the
regulation describes the dismiss-on-departure rule as a
categorical exercise of discretion. Given SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943), we must confine attention
to the Board’s stated rationale: lack of jurisdiction.
As a rule about subject-matter jurisdiction, §1003.2(d)
is untenable. The Immigration and Nationality Act autho-
rizes the Board to reconsider or reopen its own decisions.
It does not make that step depend on the alien’s presence
in the United States. Until 1996 deportation proceedings
(as they were then called), and judicial review of deporta-
tion orders, automatically halted when the alien left
this nation. 8 U.S.C. §1105a(c) (1994). The Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
repealed §1105a(c). Pub. L. 104-208, division C, title III,
subtitle A, §306(b), 110 Stat. 3009–546, 3009–612. One
would suppose that this change also pulled the rug out
from under Matter of G– y B– and similar decisions, based
as they were on the earlier norm that departure ended
all legal proceedings in the United States, though the
Board nonetheless held in Matter of Armendarez-Mendez
that the 1996 repealer did not affect motions to recon-
sider or reopen.
No. 09-3105 7
The fact remains that since 1996 nothing in the statute
undergirds a conclusion that the Board lacks “jurisdic-
tion”—which is to say, adjudicatory competence, see
Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010)
(collecting cases)—to issue decisions that affect the
legal rights of departed aliens. The Board certainly could
have decided Marin-Rodriguez’s appeal from the IJ’s
removal order, notwithstanding his removal, if he had
not asked for the remand. And if the Board had the
authority to decide his appeal, why did it lose that author-
ity just because it thought that the IJ (rather than the
Board itself) should be the first to consider whether to
accept Marin-Rodriguez’s belatedly submitted finger-
prints?
The Supreme Court recently held that an administra-
tive agency is not entitled to contract its own jurisdiction
by regulations or by decisions in litigated proceedings.
Union Pacific R.R. v. Brotherhood of Locomotive Engineers,
130 S. Ct. 584 (2009). Union Pacific post-dates most deci-
sions in other circuits that have approved the Board’s
conclusion that it lacks “jurisdiction” to consider motions
filed by aliens who have left the United States, and circuits
that have addressed this issue after Union Pacific do not
mention it. Union Pacific, Reed Elsevier, and Morrison v.
National Australia Bank Ltd., No. 08-1191 (U.S. June 24,
2010), slip op. 4–5, are just the most recent examples of
the Supreme Court’s effort during the last decade to
draw with greater precision the line between “jurisdic-
tional” and other legal rules. Neither the Board’s decision
in Armendarez-Mendez, nor any other circuit’s opinion
concerning the “jurisdictional” characterization of 8 C.F.R.
§1003.2(d), mentions the Supreme Court’s recent cases
8 No. 09-3105
observing that legal rules can be mandatory without being
jurisdictional and insisting that courts (and agencies)
exercise their full jurisdiction. We think that Union Pacific
is dispositive in favor of the holding in William—though
on a rationale distinct from the fourth circuit’s.
There is another route to the same result. Two courts of
appeals have held that §1003.2(d) and equivalent regula-
tions do not apply when the alien is removed involun-
tarily—in other words, that it makes sense to treat depar-
ture from the United States as the withdrawal of a motion
only when the alien could have remained to see the
litigation through. Coyt v. Holder, 593 F.3d 902, 905–07
(9th Cir. 2010); Madrigal v. Holder, 572 F.3d 239, 243–45 (6th
Cir. 2009). The fourth circuit reached the same conclusion
using its approach in William. See Sadhvani v. Holder, 596
F.3d 180, 183 (4th Cir. 2009). Three other circuits are to the
contrary, though without much discussion. Paredes v.
Attorney General, 528 F.3d 196, 199 n.3 (3d Cir. 2008);
Ugokwe v. Attorney General, 453 F.3d 1325, 1328 (11th Cir.
2006) (dictum); Ahmad v. Gonzales, 204 Fed. App’x 98, 99
(2d Cir. 2006) (non-precedential).
The view taken by the sixth and ninth circuits is hard
to reconcile with the principle that the judiciary should
accept an agency’s plausible reading of its own regula-
tions. Auer v. Robbins, 519 U.S. 452, 461 (1997); see also
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council,
129 S. Ct. 2458, 2467–70, 2472–74 (2009). The Board under-
stands §1003.2(d) as equally applicable to voluntary and
involuntary departures, and the text of the regulation
supports that view notwithstanding the oddity of ap-
No. 09-3105 9
plying the word “withdrawal” to the consequence of an
involuntary departure. But because the Board also be-
lieves that the regulation curtails its jurisdiction—which is
why it applies to involuntary and voluntary departures
alike—we come out in the same place as the sixth and
ninth circuits on the basis of Union Pacific, without sug-
gesting that the Board has misunderstood the regulation.
The Board may well be entitled to recast its approach as
one resting on a categorical exercise of discretion, but it
cannot insist that it has elected to foreswear subject-
matter jurisdiction that it possesses under a statute. A
recent decision suggests that the Board may be in the
process of abandoning its “jurisdictional” characterization
of the departure rule. Matter of Bulnes-Nolasco, 25 I. & N.
Dec. 57 (BIA 2009), holds that the Board does possess
jurisdiction if a departed alien contends that she did not
receive proper notice of proceedings before the immigra-
tion judge. It is hard to see how the arguments an alien
offers in support of reopening can affect whether the
Board has subject-matter jurisdiction—though easy to see
how a distinction could be justified as a conclusion that
the Board always denies certain kinds of motions as an
exercise of discretion, while entertaining others on the
merits.
The Board’s rationale for denying Marin-Rodriguez’s
motion was the lack of jurisdiction, so he is entitled to
a remand even if the Board is rethinking its approach.
Marin-Rodriguez may not have much to gain—his convic-
tion for immigration-related fraud may block adjustment
of status even if the IJ decides to accept the untimely
10 No. 09-3105
fingerprints—but the Chenery principle requires us to
send this subject to the agency rather than decide for
ourselves whether the conviction is for a crime of moral
turpitude. See also, e.g., Gonzales v. Thomas, 547 U.S. 183
(2006). The IJ thought that §1546(a) establishes a crime
of moral turpitude, and if that’s right then adjustment
of status is unavailable, but the Board of Immigration
Appeals dismissed Marin-Rodriguez’s appeal without
reaching that issue.
Before we wrap up, a few words are in order about
why we have elected to decide this case at all. Three days
before the date for oral argument, counsel for the
Attorney General filed a motion asking us to remand the
proceeding to the Board. Normally motions to remand
are granted as a matter of course, see Ren v. Gonzales, 440
F.3d 446 (7th Cir. 2006), but Marin-Rodriguez opposed
this motion and we directed the parties to come prepared
to discuss the subject at oral argument.
The motion did not say what the Board planned to do
with the proceeding on remand: entertain the matter on
the merits, re-remand to the IJ (as Marin-Rodriguez
wants), or just write a different opinion. At oral argument
we asked the Attorney General’s lawyer whether the
Board has changed its mind and now believes that it has
jurisdiction to entertain the sort of motion that Marin-
Rodriguez presented. Counsel said that he did not
know—that he spoke only for the Attorney General and
not for the Board or the Department of Homeland Secu-
rity. Yet the Attorney General has not exercised his au-
thority to withdraw this proceeding from the Board and
No. 09-3105 11
decide it himself. See 8 C.F.R. §1003.1(h). The motion
requested a remand to the Board, not to the Attorney
General. What’s more, counsel stated that the Depart-
ment of Justice has not changed the view, expressed in
its brief, that the Board is right in believing that it lacks
jurisdiction.
There is no point in remanding to a body that has
already declared the absence of subject-matter jurisdic-
tion, unless it has reconsidered that issue or is prepared
to do so. The motion to remand does not moot the contro-
versy. Marin-Rodriguez wants relief different from
what the Attorney General is prepared to allow. So we
deny the motion to remand.
The petition for review is granted, and the proceeding
is remanded to the Board for further consideration con-
sistent with this opinion.
7-14-10