FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN SORIA VEGA,
Petitioner, No. 07-72618
v.
Agency No.
A095-192-415
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 9, 2010—Pasadena, California
Filed July 19, 2010
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Charles R. Breyer, District Judge.*
Opinion by Judge Trott
*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
10329
SORIA VEGA v. HOLDER 10331
COUNSEL
John Bennett, Amarillo, Texas, for the petitioner.
Michael C. Heyse and John S. Hogan, United States Depart-
ment of Justice, Washington, D.C., for the respondent.
OPINION
TROTT, Circuit Judge:
Juan Soria Vega petitions for review of the decision of the
Board of Immigration Appeals (BIA) denying his motion to
reopen as untimely. Soria Vega asserts that although his
motion was not filed within 90 days of the BIA’s merits deter-
mination, the motion to reopen was filed within 90 days of the
denial of his motion to reconsider and was therefore timely.
The Attorney General contends that, to be timely, the motion
to reopen had to be filed within 90 days of the BIA’s initial
merits determination, not within 90 days of the denial of his
motion to reconsider. We agree with the Attorney General.
BACKGROUND
Soria Vega conceded to the Immigration Judge (IJ) that he
was removable and was granted voluntary departure on Feb-
10332 SORIA VEGA v. HOLDER
ruary 6, 2003. The BIA affirmed the IJ’s decision without
opinion on May 10, 2004. The BIA explicitly identified this
order as “the final agency determination,” citing 8 C.F.R.
§ 1003.1(e)(4).
On August 23, 2004, the BIA denied Soria Vega’s motion
to reconsider. Due to circumstances beyond his control, Soria
Vega did not receive that decision from the BIA. He then filed
a request for the reissuance of the Board’s “decision rendered
on August 23, 2004” regarding his motion to reconsider. On
June 8, 2005, the BIA vacated its August 23, 2004 decision
and issued a new order incorporating the previous order of
August 23, 2004, as requested. The BIA’s May 10, 2004 order
remained undisturbed as “the final agency determination.”
Soria Vega then filed a motion to reopen on July 7, 2005,
more than one year after the BIA’s initial decision. He
asserted that his family circumstances had changed and that
the BIA should consider family separation as a reason to sup-
port cancellation of removal. Although the motion was sub-
mitted within 90 days of the denial of the motion to
reconsider, the BIA denied the motion to reopen as untimely
because it was not submitted within 90 days of the May 10,
2004 removal order.
DISCUSSION
A. Standard of Review
This court “review[s] the BIA’s ruling on a motion to
reopen for abuse of discretion.” Singh v. Gonzales, 491 F.3d
1090, 1095 (9th Cir. 2007). An abuse of discretion occurs if
the BIA’s “ ‘denial was arbitrary, irrational or contrary to
law.’ ” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.
2000) (quoting Watkins v. INS, 63 F.3d 844, 847 (9th Cir.
1995)). Purely legal questions, including the BIA’s interpreta-
tion of statutes, are reviewed de novo. Sharma v. INS, 89 F.3d
545, 547 (9th Cir. 1996).
SORIA VEGA v. HOLDER 10333
B. Analysis
Soria Vega asserts that his motion to reopen was timely
because it was filed within 90 days of the BIA’s denial of his
motion to reconsider. He argues that the denial of the motion
to reconsider qualifies as “a final administrative order of
removal.” See 8 U.S.C. § 1229a(c)(7)(C)(i). We disagree.
“In reviewing administrative interpretations of statutes, we
look first to the principles set forth in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
. . . .” Azarte v. Ashcroft, 394 F.3d 1278, 1285 (9th Cir. 2005).
First, the court determines whether the statutory meaning is
unambiguous. Id. “No deference to the view of the adminis-
trative agency is necessary when normal principles of statu-
tory construction suffice to determine the statute’s meaning.”
Id. (citation and internal quotation marks omitted). “If con-
gressional intent is clear, both the court and the agency must
‘give effect to the unambiguously expressed intent of Con-
gress.’ ” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012
(9th Cir. 2006) (quoting Chevron, 467 U.S. at 843). “If, how-
ever, Congress has not directly addressed the exact issue in
question, a reviewing court must defer to the agency’s con-
struction of the statute so long as it is reasonable.” Id.
To determine if a statute is ambiguous, the court first looks
at the language used, considered in terms of the statute as a
whole. Azarte, 394 F.3d at 1287. The court must “presume
that a legislature says in a statute what it means and means in
a statute what it says.” Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992).
[1] Congress has specified that a motion to reopen must be
filed within 90 days of “a final administrative order of remov-
al.” 8 U.S.C. § 1229a(c)(7)(C)(i). Unfortunately, “a final
administrative order of removal” is not defined by the statute.
Soria Vega suggests that any final order directing the alien to
be removed, including a denial of a motion to reconsider that
10334 SORIA VEGA v. HOLDER
enforces a previously entered order of removal, qualifies as
such an order. On the other hand, the Attorney General asserts
that only an order of removal entered upon a decision by the
BIA on the merits of the alien’s case is a “final administrative
order of removal.” This definition excludes a denial of a
motion to reconsider. Because the statute is susceptible of
multiple interpretations, it is ambiguous.
[2] The BIA interpreted the time frame for filing motions
to reopen in 8 C.F.R. § 1003.2(c)(2). The regulation requires
that such a motion be filed within 90 days of when “the final
administrative decision was rendered in the proceeding
sought to be reopened.” (emphasis added). The regulation
does not state that a motion to reconsider does not qualify as
a “proceeding sought to be reopened.” However, a “motion to
reconsider challenges determinations of law and fact made by
the BIA.” Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.
2003); see 8 C.F.R. § 1003.2(b)(1). The only materials
required in support of the motion are the party’s arguments
regarding the BIA’s errors and any “pertinent authority.” Itur-
ribarria, 321 F.3d at 895. “It is implicit in subsection (b)(1)
that the BIA will reconsider the party’s case using the same
record evidence used in making its prior decision.” Id. “In
contrast, a motion to reopen may only be granted upon a prof-
fer of material evidence that ‘was not available and could not
have been discovered or presented at the former hearing.’ ”
Id. (quoting 8 C.F.R. § 1003.2(c)(1)).
[3] Because the BIA will not consider new evidence in a
reconsideration hearing, offering new evidence through a
motion to reopen the reconsideration proceeding would be
inappropriate. The very purpose of a motion to reopen is to
offer new evidence. Azarte, 394 F.3d at 1283. The new evi-
dence, therefore, can only pertain to the initial merits determi-
nation that the alien is removable. Although Soria Vega
argues otherwise, his motion to reopen was necessarily
directed at the merits determination issued on May 10, 2004,
not the denial of his motion to reconsider. Moreover, no
SORIA VEGA v. HOLDER 10335
authority exists for the proposition that a motion to reopen can
be directed at the denial of a motion to reconsider.
[4] Soria Vega asserts that the regulation for motions to
reopen is in direct conflict with the statute, and, therefore, that
the BIA’s interpretation of the statute is not entitled to defer-
ence. Chevron deference is not afforded to “administrative
constructions which are contrary to clear congressional
intent.” Chevron, 467 U.S. at 843 n.9. However, congressio-
nal intent as to the meaning of “a final administrative order
of removal” is not clear. Rather than conflict with the statute,
the regulation clarifies it. Reading both the statute and the
regulation together, “a final administrative order of removal”
is “the final administrative decision . . . rendered in the pro-
ceeding sought to be reopened.” 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2).
[5] The BIA’s interpretation of 8 U.S.C.
§ 1229a(c)(7)(C)(i), requiring the motion to reopen to have
been filed within 90 days of the May 10, 2004 merits deci-
sion, was reasonable. See William v. INS, 217 F.3d 340, 342-
43 (5th Cir. 2000) (reaching the same conclusion upon analy-
sis of 8 C.F.R. § 1003.2(c)(2)). To conclude otherwise would
allow aliens unduly to delay final resolution of a case. See INS
v. Abudu, 485 U.S. 94, 107-08 (1988) (the government has a
valid interest in discouraging delay).
Soria Vega’s remaining arguments lack merit.
CONCLUSION
The BIA did not abuse its discretion by denying Soria
Vega’s motion to reopen as untimely. The motion had to be
filed within 90 days of the May 10, 2004 order affirming the
IJ’s determination. That order was designated the “final
administrative order of removal” under 8 U.S.C.
§ 1229a(c)(7)(C)(i) and remained so through all subsequent
10336 SORIA VEGA v. HOLDER
proceedings. Soria Vega’s motion was nearly one year late
when filed on July 7, 2005.
PETITION DENIED.