Xue Yong Zhang v. Holder

09-2628-ag
Zhang v. Holder

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2009
8
9 (Argued: June 24, 2010 Decided: August 12, 2010)
10
11 Docket No. 09-2628-ag
12
13
14 X UE Y ONG Z HANG,
15
16 Petitioner,
17
18 -v.-
19
20 E RIC H. H OLDER, J R., Attorney General of the United States,
21
22 Respondent.
23
24
25
26 Before: M INER, C ABRANES, and W ESLEY, Circuit Judges.
27
28 Petitioner Xue Yong Zhang seeks review of a May 22, 2009
29 decision by the Board of Immigration Appeals dismissing his
30 appeal of an Immigration Judge’s January 22, 2009 order, which
31 terminated his reopened removal proceedings on the basis that
32 he had already been removed from the United States. Because
33 we conclude that the BIA is entitled to deference regarding
34 its interpretation of the regulation governing motions to
35 reopen, we hold that the BIA did not err by dismissing
36 petitioner’s appeal for want of jurisdiction. We further hold
37 that the nunc pro tunc relief sought by petitioner is not
38 warranted on these facts.
39
40 P ETITION DENIED.
41
 1 M ATTHEW L. G UADAGNO (Jules E. Coven and Kerry W.
2 Bretz, on the brief), Bretz & Coven, LLP, New
3 York, NY, for Petitioner.
4
5 S TEVEN F. D AY, Trial Attorney (Tony West, Assistant
6 Attorney General; and Francis W. Fraser,
7 Senior Litigation Counsel, on the brief),
8 Office of Immigration Litigation, Civil
9 Division, U.S. Department of Justice,
10 Washington, DC, for Respondent.
11
12
13 W ESLEY, Circuit Judge:

14 Petitioner Xue Yong Zhang (“petitioner” or “Zhang”)

15 seeks review of a May 22, 2009 decision by the Board of

16 Immigration Appeals (“BIA” or “Board”), which dismissed his

17 appeal of an Immigration Judge’s January 22, 2009 decision

18 for want of jurisdiction. In 2003, the order calling for

19 petitioner to be removed, as well as a finding by the

20 Immigration Judge (“IJ”) that petitioner had submitted a

21 frivolous asylum application, became final. Five years

22 later, in July 2008, petitioner filed a motion to reopen

23 those proceedings and a request for a stay of removal. The

24 motion was procedurally defective under the Immigration and

25 Nationality Act (“INA”), see 8 U.S.C. § 1229a(c)(7), but

26 petitioner asked the BIA to invoke its “sua sponte

27 authority,” see 8 C.F.R. § 1003.2(a).

28 The BIA declined to issue the stay, but it later

2
 1 granted the motion to reopen and remanded the proceedings to

2 the IJ. However, by the time the BIA granted the motion,

3 petitioner had already been removed. On remand, the IJ

4 terminated the proceedings when she learned that petitioner

5 was no longer physically present in the United States. In

6 the decision challenged by petitioner here, the BIA vacated

7 its prior order reopening the removal proceedings, reasoning

8 that it lacked jurisdiction to consider petitioner’s motion

9 at that time because he had already been removed. In

10 support of that conclusion, the Board cited the “departure

11 bar” regulation, 8 C.F.R. § 1003.2(d), and its decision in

12 In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008).

13 In his petition for review, petitioner contends that

14 the departure bar, as applied by the BIA in this case, is

15 invalid because it conflicts with the language of the

16 regulation governing the BIA’s sua sponte authority.

17 Petitioner also asserts, in the alternative, that the BIA

18 should have granted his motion to reopen, nunc pro tunc, as

19 of the date that it denied his request for a stay of

20 removal. This equitable relief, petitioner argues, would

21 have avoided the application of the departure bar.

22 Although we are sympathetic to petitioner’s plight, we

3
 1 are not persuaded, as a legal matter, by either contention.

2 The BIA has taken the position in a precedential decision

3 that the departure bar, where applicable, deprives it of

4 jurisdiction to consider a motion to reopen that asks the

5 Board to invoke its sua sponte authority. See In re

6 Armendarez-Mendez, 24 I. & N. Dec. at 660. We conclude that

7 the BIA’s construction of this regulation is not plainly

8 erroneous and is therefore entitled to deference.

9 Consequently, the BIA did not err in relying on In re

10 Armendarez-Mendez and deciding that it lacked jurisdiction

11 to reopen petitioner’s removal proceedings after he had been

12 removed from the country.

13 We decline to resolve, however, whether the departure

14 bar also precludes relief under the doctrine of nunc pro

15 tunc. We need not take that additional step because,

16 assuming, arguendo, that nunc pro tunc relief is not

17 jurisdictionally foreclosed, petitioner is not entitled to

18 that equitable remedy in this case. Accordingly, the

19 petition is denied.

20 I. BACKGROUND

21 Zhang was born in China in 1978 and first came to the

22 United States in October 1999. Because Zhang lacked valid

4
 1 entry documents when he arrived, the agency formerly known

2 as the Immigration and Naturalization Service (“INS”) 1

3 detained him and commenced removal proceedings. Petitioner

4 conceded that he was subject to removal, and subsequently

5 filed an application for withholding of removal, asylum, and

6 relief under the Convention Against Torture. In his

7 application, Zhang expressed “fear that [he would] be fined

8 and sentenced to jail for at least a year” if he returned to

9 China because he “violated the family planning policy and

10 also left the country illegally without an exit permit.”

11 After accepting briefing relating to the applications,

12 IJ Noel Ferris conducted a merits hearing on April 4, 2001

13 in New York City. Before petitioner began his testimony,

14 the IJ warned him that knowingly filing a frivolous asylum

15 application would lead him to be “barred forever from

16 receiving any benefits under the Immigration and Nationality

17 Act.” The IJ also defined in clear terms the meaning of the

18 word “frivolous.” Following these warnings, Zhang indicated

19 that he understood the IJ’s admonition and that he wished to

1
The INS ceased to exist on March 1, 2003, and its
functions were transferred to the Department of Homeland
Security (“DHS”) pursuant to the Homeland Security Act of
2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (Nov.
25, 2002). See Dobrova v. Holder, 607 F.3d 297, 299 n.1 (2d
Cir. 2010).

5
 1 proceed with the adjudication of his asylum application.

2 During his testimony at the merits hearing, petitioner

3 asserted that he left China to escape political persecution

4 based on China’s family planning policies. Early in his

5 testimony, the IJ warned petitioner that “vague” answers to

6 questions from his attorney “impair[ed] [his]

7 believability.” Petitioner went on to explain that he

8 married a woman in accordance with his cultural traditions,

9 but that when she became pregnant the government informed

10 them that both the marriage and the pregnancy were

11 “illegal.” Government officials then forced his wife to

12 have an abortion and imposed a fine on the couple.

13 Petitioner testified that he was incarcerated after he

14 failed to pay the fine, but that he escaped custody and fled

15 to the United States. The only documentary evidence

16 petitioner produced in support of this testimony was a

17 photograph that he described as depicting himself and his

18 wife on their wedding day. The IJ did not allow petitioner

19 to introduce the picture as evidence of the marriage, but

20 she accepted petitioner’s testimony describing the photo.

21 Later, during the government’s cross-examination of

22 petitioner relating to statements during his credible fear

6
 1 interview, the IJ made an express finding that his testimony

2 was not “credible, believable or factually accurate.”

3 After petitioner’s testimony was complete, the IJ

4 issued an oral decision:

5 [N]ot only have I denied your applications[,] I
6 have found your filing is entirely frivolous and
7 therefore you will be barred for life from ever
8 becoming legally resident in this country. . . .
9
10 . . . .
11
12 I believe the lies you have told to the [c]ourt
13 are material and I believe they were told to the
14 [c]ourt purely to secure an [i]mmigration benefit.
15
16 In a decision issued on the same day, the IJ reviewed

17 petitioner’s testimony, characterized it as “absurd” and

18 “just plain made . . . up from beginning to end,” and

19 concluded that petitioner had submitted “a frivolous

20 application for asylum . . . supported entirely by . . .

21 perjurious testimony.” Petitioner filed an appeal, but the

22 BIA affirmed the IJ’s decision without an opinion on January

23 15, 2003. Petitioner did not seek review of that decision

24 in this Court.

25 On July 15, 2008, Zhang filed a motion with the BIA

26 seeking: (1) a stay of removal; and (2) to reopen his

27 removal proceedings. Petitioner argued that “the BIA should

28 exercise its sua sponte jurisdiction” to reopen the removal

7
 1 proceedings, see 8 C.F.R. § 1003.2(a), because the IJ’s

2 conclusion that his asylum application was frivolous was

3 “invalid” based on the BIA’s intervening decision in In re

4 Y-L-, 24 I. & N. Dec. 151 (BIA 2007).

5 The BIA denied petitioner’s motion for a stay of

6 removal two days later, on July 17, 2008, based on its

7 conclusion that “there [was] little likelihood that the

8 motion [to reopen would] be granted.” Petitioner was

9 removed to China by the Department of Homeland Security

10 (“DHS”) on July 22, 2008. On September 10, 2008, apparently

11 unaware of this fact, the BIA relied on its sua sponte

12 authority to grant petitioner’s motion to reopen. In that

13 decision, the Board indicated that it did “not necessarily

14 disagree with the [IJ’s] ultimate finding[]” that petitioner

15 had knowingly submitted a frivolous asylum application, but

16 it remanded for “clarification” based on In re Y-L-.

17 On remand, on January 22, 2009, the IJ terminated the

18 proceedings once she ascertained that petitioner was no

19 longer physically present in the United States. Zhang’s

20 counsel appealed to the BIA. Counsel argued that the BIA

21 had previously erred by denying his request for a stay, and

22 that it should have granted his motion to reopen nunc pro

8
 1 tunc to a date prior to his removal to avoid the application

2 of the departure bar. He also “preserve[d] for federal

3 review” the argument that the departure bar conflicts with

4 the provisions of the INA relating to motions to reopen.

5 On May 22, 2009, the BIA dismissed the appeal and

6 vacated its September 10, 2008 order reopening petitioner’s

7 removal proceedings, reasoning that it “did not have

8 jurisdiction” to grant that motion because petitioner had

9 already been removed. In support of its jurisdictional

10 holding, the BIA cited the departure bar, 8 C.F.R. §

11 1003.2(d), and In re Armendarez-Mendez, 24 I. & N. Dec. 646

12 (BIA 2008). Following that decision, Zhang’s counsel filed

13 the instant petition for review.

14 II. DISCUSSION

15 This case requires us to consider the scope of the

16 BIA’s jurisdiction to reopen otherwise-final removal

17 proceedings in response to a party’s motion, where the

18 motion to reopen is deficient under the INA and instead asks

19 the Board to invoke its sua sponte authority. Specifically,

20 we must decide whether the departure bar, 8 C.F.R.

21 § 1003.2(d), divests the BIA of jurisdiction to grant an

22 alien’s motion to reopen based on the Board’s sua sponte

9
1 authority, id. § 1003.2(a), where the movant has already

2 been removed from the country. 2

3 In In re Armendarez-Mendez, the BIA interpreted 8

4 C.F.R. § 1003.2 and answered that question in the

5 affirmative. 24 I. & N. Dec. at 653, 660. Although the

6 BIA’s construction is not without flaws, we conclude that

7 its view is entitled to deference under the circumstances of

2
Petitioner concedes that he did not advance this
contention during his appeal to the BIA. (See Pet’r Br. 27
n.5.) However, the government has not raised a failure-to-
exhaust defense, thereby waiving it. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 120 (2d Cir. 2007). We may
therefore reach the merits of petitioner’s argument relating
to the relationship between the BIA’s sua sponte authority
and the departure bar. We also note that petitioner has
abandoned the argument that he presented to the BIA, based
on William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), that
the departure bar conflicts with the provisions of the INA
relating to motions to reopen, see 8 U.S.C. § 1229a(c)(7).
(See Pet’r Br. 27 n.5.) In In re Armendarez-Mendez, 24 I. &
N. Dec. at 653-60, the BIA rejected the reasoning of the
William majority. This issue is presently the subject of a
Circuit split. Compare Rosillo-Puga v. Holder, 580 F.3d
1147, 1159-60 (10th Cir. 2009) (rejecting the analysis of
the William majority), Pena-Muriel v. Gonzales, 489 F.3d 438
441-43 (1st Cir. 2007) (rejecting the argument that the
departure bar was impliedly repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546
(Sept. 30, 1996)), and Mendiola v. Holder, 585 F.3d 1303,
1310 (10th Cir. 2009) (following Rosillo-Puga), with Coyt v.
Holder, 593 F.3d 902, 907 (9th Cir. 2010) (holding that the
departure bar “cannot apply to cause the withdrawal of an
administrative petition filed by a petitioner who has been
involuntarily removed”). However, because petitioner has
abandoned the argument, we do not reach it.

10
 1 this case, and that the Board did not err when it vacated

2 its September 10, 2008 order on jurisdictional grounds. We

3 further hold that petitioner has not demonstrated that he is

4 entitled to relief under the equitable doctrine of nunc pro

5 tunc. Accordingly, for the reasons set forth below, the

6 petition for review is denied.

7 A. The Development of the BIA’s Sua Sponte Authority and
8 the Departure Bar
9
10 The BIA was established through regulations promulgated

11 by the Attorney General in 1940. See Regulations Governing

12 Departmental Organization and Authority, 5 Fed. Reg. 3502,

13 3503, § 90.2 (Sept. 4, 1940). 3 These regulations authorized

3
Congress created the first federal agency focused on
immigration — the Office of the Superintendent of
Immigration — in § 7 of the Act of March 3, 1891, ch. 551,
26 Stat. 1084, 1085. The Office was part of the Treasury
Department until 1903, when it was transferred to the
Department of Commerce and Labor. See An Act To establish
the Department of Commerce and Labor, Pub. L. No. 87, § 4,
ch. 552, 32 Stat. 825, 826 (Feb. 14, 1903). In 1913, the
agency was transferred to the newly created Department of
Labor and divided into the Bureau of Immigration and the
Bureau of Naturalization. See An Act To create a Department
of Labor, Pub. L. No. 426, § 3, ch. 141, 37 Stat. 736, 737
(Mar. 4, 1913). The two Bureaus were combined in 1933 by
President Roosevelt, and the consolidated entity was named
the Immigration and Naturalization Service (“INS”). Exec.
Order No. 6166, § 14 (June 10, 1933), reprinted following 5
U.S.C. § 901. In 1940, the INS was transferred to the
Department of Justice. See Reorganization Plan No. V, 54
Stat. 1238 (effective June 14, 1940); see also Alien
Registration Act of 1940, Pub. L. No. 670, § 37(a), ch. 439,

11
 1 the Board to “issue orders of deportation”; “consider and

2 determine appeals”; and resolve motions for

3 “reconsideration, reargument or reopening of a case after

4 the issuance of a final decision.” Id. at 3503-04, §§

5 90.3(a)-(b), 90.10.

6 In 1952, Congress enacted the INA, also known as the

7 McCarran-Walter Act. Pub. L. No. 82-414, ch. 414, 66 Stat.

8 163 (June 27, 1952). The INA charged the Attorney General

9 “with the administration and enforcement” of the Act, and

10 authorized him to “establish such regulations . . . as he

11 deem[ed] necessary for carrying out [that] authority.”

12 Id. § 103(a), 66 Stat. at 173. Pursuant to that

13 congressional delegation, the Attorney General promulgated a

14 series of regulations defining the “[a]ppellate

15 jurisdiction” of the BIA and the “[p]owers of the Board.”

16 Immigration and Nationality Regulations, 17 Fed. Reg.

17 11,469, 11,475, § 6.1(b), (d) (Dec. 19, 1952) (final rule

54 Stat. 670, 675 (June 28, 1940). In September 1940, the
Attorney General changed the name of the “Board of Review”
of the INS to the Board of Immigration Appeals. See
Regulations Governing Departmental Organization and
Authority, 5 Fed. Reg. 3502, 3503, § 90.2 (Sept. 4, 1940).
See generally A Historical Guide to the U.S. Government 305-
08 (George Thomas Kurian et al., eds., 1998). Lastly,
effective March 2003, the functions of the INS were
transferred to DHS. See supra note 1.

12
 1 codified at 8 C.F.R. § 6.1(b), (d) (1952)). Section

2 6.1(d)(1) of those regulations defined the “General[]”

3 “[p]owers of the Board”:

4 Subject to any specific limitation prescribed by
5 this chapter, in considering and determining cases
6 before it as provided in this part the Board shall
7 exercise such discretion and authority conferred
8 upon the Attorney General by law as is appropriate
9 and necessary for the disposition of the
10 case . . . .
11
12 8 C.F.R. § 6.1(d)(1) (1952). The 1952 regulations also

13 allowed for motions to reopen and for reconsideration of

14 Board decisions, and these regulations included the first

15 version of the departure bar. See id. § 6.2. 4 Two years

16 after these regulations were promulgated, the BIA concluded

17 that the departure bar was a jurisdictional limitation on

18 its authority to consider a motion to reopen when “the alien

19 is outside the United States.” In re G-y-B, 6 I. & N. Dec.

4
Section 6.2 of the 1952 regulations provided, in
pertinent part:

A motion to reopen or a motion to reconsider 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 motion.

8 C.F.R. § 6.2 (1952).

13
 1 159, 160 (BIA 1954).

2 In 1958, the Attorney General revised the regulations

3 relating to the BIA’s authority to consider motions to

4 reopen. See Miscellaneous Amendments to Chapter, 23 Fed.

5 Reg. 9115, 9118-19 (Nov. 26, 1958). The revised regulations

6 established what is now referred to as the BIA’s sua sponte

7 authority by providing the Board with the power to reopen

8 proceedings and reconsider its decisions “on its own

9 motion.” Id. at 9118, § 3.2. This BIA authority remained a

10 creature of Attorney General regulations — not restricted or

11 modified by congressional enactments — for more than thirty

12 years.

13 Congress amended the INA in 1961 in order to add, inter

14 alia, provisions relating to judicial review of the BIA’s

15 decisions. See Act of Sept. 26, 1961, Pub. L. No. 87-301,

16 75 Stat. 650. Relevant here is § 5(a) of the Act, which

17 established the “sole and exclusive procedure for [] the

18 judicial review of all final orders of deportation

19 heretofore or hereafter made against aliens within the

20 United States.” Id. § 5(a), 75 Stat. at 651 (codified at 8

21 U.S.C. § 1105a(a) (1964) (repealed 1996)). Among the

22 judicial review procedures adopted by Congress was a

14
 1 provision similar to the departure bar regulation, which

2 stated that “[a]n order of deportation or of exclusion shall

3 not be reviewed by any court if the alien . . . has departed

4 from the United States after the issuance of the order.” 8

5 U.S.C. § 1105a(c) (1964) (emphasis added); see also In re

6 Armendarez-Mendez, 24 I. & N. Dec. at 649 (“[N]early a

7 decade after the departure bar rule went into effect,

8 Congress imposed a similar statutory restriction prohibiting

9 the United States courts of appeals from reviewing

10 deportation orders if the alien ‘has departed from the

11 United States after issuance of the order.’” (quoting 8

12 U.S.C. § 1105a(c) (1964))).

13 Until 1990, this procedural scheme remained intact, and

14 the substance of the Attorney General’s regulations

15 regarding motions to reopen went unchanged. However, in the

16 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978

17 (Nov. 29, 1990), Congress directed the Attorney General to

18 “issue regulations with respect to . . . the period of time

19 in which motions to reopen and to reconsider may be offered

20 in deportation proceedings, which regulations [should]

21 include a limitation on the number of such motions that may

22 be filed and a maximum time period for the filing of such

15
 1 motions.” Id. § 545(d)(1), 104 Stat. at 5066. Congress

2 issued this directive in order to “reduce or eliminate

3 . . . abuses” of regulations that, at that time, permitted

4 aliens to file an unlimited number of motions to reopen

5 without any limitations period. Stone v. INS, 514 U.S. 386,

6 400 (1995).

7 Although the Attorney General expressed doubt about the

8 need to impose such limitations because there was “little

9 evidence of abuse,” she ultimately promulgated regulations

10 that, subject to certain exceptions, permitted an alien to

11 “file one motion to reopen within 90 days.” Dada v.

12 Mukasey, 128 S. Ct. 2307, 2315 (2008) (citing Executive

13 Office for Immigration Review; Motions and Appeals in

14 Immigration Proceedings, 61 Fed. Reg. 18,900, 18,901, 18,905

15 (Apr. 29, 1996) (final rule codified at 8 C.F.R. § 3.2(c)

16 (effective July 1, 1996))); see also Iavorski v. INS, 232

17 F.3d 124, 129, 131 (2d Cir. 2000). However, the revised

18 regulations retained additional “mechanisms whereby

19 otherwise untimely motions could still be considered when

20 the circumstances so required.” Iavorski, 232 F.3d at 131.

21 Chief among these mechanisms were the regulations providing

22 authority to both an IJ and the BIA to reopen, sua sponte, a

16
 1 proceeding. Id. (citing 8 C.F.R. §§ 3.2(a), 3.23(b)(1)

2 (2000)). 5

3 Approximately three months later, Congress codified

4 some — but not all — of the Attorney General’s 1996

5 regulations regarding motions to reopen. See Illegal

6 Immigration Reform and Immigrant Responsibility Act of 1996

7 (“IIRIRA”), Pub. L. No. 104-208, div. C, § 304, 110 Stat.

8 3009-546, 3009-587 (Sept. 30, 1996). Neither the departure

9 bar nor the regulation granting the BIA sua sponte authority

10 was mentioned in the statute in any fashion. See In re

11 Armendarez-Mendez, 24 I. & N. Dec. at 654. But the IIRIRA

12 repealed the INA’s judicial review provisions — including

13 the provision precluding post-departure judicial review of

14 BIA orders — and enacted new rules for that process. See

15 Pub. L. No. 104-208, div. C, § 306, 110 Stat. at 3009-607 -

5
In addition to the BIA’s sua sponte authority and the
departure bar, 8 C.F.R. § 1003.2(a), (d), the Attorney
General’s regulations vest in IJs similar authority with
analogous departure limitations, id. § 1003.23(b)(1) (“An
[IJ] may upon his or her own motion at any time . . . reopen
or reconsider any case in which he or she has made a
decision . . . . Any departure from the United States . . .
occurring after the filing of a motion to reopen or a motion
to reconsider shall constitute a withdrawal of such
motion.”). These regulations are “substantively identical”
in terms of the authority they provide to IJs and the BIA to
consider motions to reopen. In re Armendarez-Mendez, 24 I.
& N. Dec. at 650.

17
 1 3009-612. Under these revisions to the INA, an alien is no

2 longer foreclosed from seeking judicial review of a BIA

3 order after he or she departs from the country. See Dada,

4 128 S. Ct. at 2320.

5 The Attorney General promulgated new regulations based

6 on the IIRIRA on March 6, 1997. See Inspection and

7 Expedited Removal of Aliens; Detention and Removal of

8 Aliens; Conduct of Removal Proceedings; Asylum Procedures,

9 62 Fed. Reg. 10,312 (Mar. 6, 1997). Although some

10 commenters on the proposed regulations had opined that the

11 IIRIRA impliedly invalidated the departure bar, the Attorney

12 General rejected that view: “No provision of the [IIRIRA]

13 supports reversing the long established rule that a motion

14 to reopen or reconsider cannot be made in immigration

15 proceedings by or on behalf of a person after that person’s

16 departure from the United States.” Id. at 10,321.

17 Consequently, the Attorney General retained in her

18 regulations both the departure bar and the BIA’s authority

19 to consider a motion to reopen sua sponte. See id. at

20 10,330-31 (final rule codified at 8 C.F.R. § 3.2(a), (d)

21 (1997)). 6

6
In response to the Homeland Security Act of 2002, see
supra note 1, the Attorney General reorganized title 8 of

18
 1 B. The BIA’s Application of the Departure Bar

2 In the present case, the BIA concluded that it “did not

3 have jurisdiction” to enter its September 10, 2008 order

4 reopening petitioner’s removal proceedings because

5 petitioner had already been removed from the United States.

6 The Board vacated the order and dismissed the appeal, citing

7 the departure bar and In re Armendarez-Mendez. Petitioner

8 now argues that the departure bar regulation “goes against

9 the plain language” of the portion of the regulation

10 governing the BIA’s sua sponte authority. However, the BIA

11 rejected a similar contention in In re Armendarez-Mendez.

12 We hold that the BIA’s interpretation is entitled to

13 deference and that it requires us to reject petitioner’s

14 argument.

15 Under the current version of the INA, an alien who is

16 to be removed pursuant to an order of the BIA typically has

17 ninety days after the Board’s decision becomes final to file

the Code of Federal Regulations to reflect the transfer of
the functions of the INS from the Department of Justice to
the DHS. See Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28,
2003). As a result, the regulation governing the BIA’s sua
sponte authority and the applicable departure bar was moved
— without changes — from 8 C.F.R. § 3.2 (2002), to 8 C.F.R.
§ 1003.2 (2009).

19
 1 a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A),

2 (c)(7)(C)(i); see also Ali v. Gonzales, 448 F.3d 515, 517

3 (2d Cir. 2006) (per curiam). 7 Petitioner’s motion to reopen

4 was untimely in this regard, as it was filed approximately

5 five years after the removal order became final.

6 The INA also enumerates statutory exceptions that allow

7 this ninety-day time limit to be excused or extended. For

8 example, an otherwise-untimely motion to reopen may be

9 permitted if the alien seeks asylum based on “changed

10 country conditions arising in the country of nationality or

11 the country to which removal has been ordered.” 8 U.S.C. §

12 1229a(c)(7)(C)(ii). We have also held that the ninety-day

13 deadline for filing a motion to reopen is subject to

7
Section 1229a(c)(7)(A) — titled “Motions to Reopen,”
“In general” — provides:

An alien may file one motion to reopen [removal]
proceedings under this section, except that this
limitation shall not apply so as to prevent the
filing of one motion to reopen described in
subparagraph (C)(iv).

8 U.S.C. § 1229a(c)(7)(A). Section 1229a(c)(7)(C)(i) sets
forth the “general” deadline for such a motion:

Except as provided in this subparagraph, the
motion to reopen shall be filed within 90 days of
the date of entry of a final administrative order
of removal.

Id. § 1229a(c)(7)(C)(i).

20
 1 equitable tolling under appropriate circumstances. See

2 Iavorski, 232 F.3d at 134 (holding that the limitations

3 period for untimely motions to reopen can be equitably

4 tolled to accommodate claims of ineffective assistance of

5 counsel). However, petitioner’s motion to reopen did not

6 rely on any of the INA’s statutory exceptions to the ninety-

7 day time limit, and he did not argue that he is entitled to

8 equitable tolling.

9 Instead, petitioner asked the BIA to invoke its sua

10 sponte authority to reopen his removal proceedings. The

11 wellspring of this authority resides, as it always has, in a

12 regulation promulgated by the Attorney General: “The Board

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

14 case in which it has rendered a decision. . . . The

15 decision to grant or deny a motion to reopen or reconsider

16 is within the discretion of the Board, subject to the

17 restrictions of this section.” 8 C.F.R. § 1003.2(a)

18 (emphases added). 8 However, after the Board realized that

8
Section 1003.2(a) provides:

General. The Board may at any time reopen or
reconsider on its own motion any case in which it
has rendered a decision. A request to reopen or
reconsider any case in which a decision has been
made by the Board, which request is made by the
Service, or by the party affected by the decision,

21
1 petitioner had been removed, it took the view that it was

2 divested of jurisdiction to consider his motion based on the

3 departure bar, which states that “[a]ny departure from the

4 United States, including the . . . removal of a person who

5 is the subject of . . . removal proceedings, occurring after

6 the filing of a motion to reopen or a motion to reconsider,

7 shall constitute a withdrawal of such motion.” 8 C.F.R.

8 § 1003.2(d). 9

9 The basis for the BIA’s interpretation of the departure

must be in the form of a written motion to the
Board. The decision to grant or deny a motion to
reopen or reconsider is within the discretion of
the Board, subject to the restrictions of this
section. The Board has discretion to deny a
motion to reopen even if the party moving has made
out a prima facie case for relief.

8 C.F.R. § 1003.2(a).
9
Section 1003.2(d) provides:

Departure, deportation, or removal. 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.

8 C.F.R. § 1003.2(d).

22
 1 bar as a jurisdictional limitation on its sua sponte

2 authority is In re Armendarez-Mendez. In that case, the BIA

3 noted that it has had “regulatory power to entertain

4 motions, subject to such limitations as the Attorney General

5 may prescribe,” since 1940, but that “there was no statute

6 delineating the scope or limits of that power” until

7 Congress passed the Immigration Act of 1990. 24 I. & N.

8 Dec. at 647, 654. Moreover, the Board reasoned, “[a]s early

9 as 1954” and “in an unbroken string of precedents extending

10 over 50 years,” it has “construed the departure bar rule as

11 imposing a limitation on [its] jurisdiction to entertain

12 motions filed by aliens who had departed the United States.”

13 Id. at 648 (citing, inter alia, In re G-y-B, 6 I. & N. Dec.

14 at 159-60). Based on those first principles, the BIA

15 “reaffirm[ed]” its “established understanding” of the

16 departure bar as a jurisdictional limitation on its sua

17 sponte authority, and it rejected the Ninth Circuit’s

18 construction of the departure bar in Zi-Xing Lin v.

19 Gonzales, 473 F.3d 979, 981-82 (9th Cir. 2007) (relying on

20 the rule of lenity to hold that 8 C.F.R. § 1003.23(b)(1)

21 does not deprive an IJ of jurisdiction to consider a motion

22 to reopen filed by a removed alien). In re Armendarez-

23
 1 Mendez, 24 I. & N. Dec. at 650-53, 660. 10

2 We review de novo legal questions decided by the BIA.

3 See Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d

4 Cir. 2007). However, we owe “substantial deference” to the

5 BIA’s interpretation of the applicable regulation in In re

6 Armendarez-Mendez, unless we find that interpretation to be

7 “plainly erroneous or inconsistent with the regulation.”

8 Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010) (internal

9 quotation marks omitted); see also Auer v. Robbins, 519 U.S.

10 452, 461 (1997).

10
More recently, the BIA has placed a caveat on its
conclusion that the departure bar deprives it of
jurisdiction to consider motions to reopen. In In re
Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009), the BIA took
the position that an IJ’s application of a different
departure bar regulation, 8 C.F.R. § 1003.23(b)(1), “in a
case involving an inoperative in absentia deportation order
would give that order greater force than it is entitled to
by law.” 25 I. & N. Dec. at 59-60 (citing 8 C.F.R. §
1003.23(b)(4)(iii)(A)(2)). Therefore, in the BIA’s view,
“an alien’s departure from the United States while under an
outstanding order of deportation or removal issued in
absentia does not deprive the [IJ] of jurisdiction to
entertain a motion to reopen to rescind the order if the
motion is premised on lack of notice.” Id. at 60. The
removal order in this case was not entered with petitioner
in absentia, and petitioner does not argue that he lacked
notice of the proceedings (at which he was present and
represented by counsel). Therefore, any limitation on In re
Armendarez-Mendez resulting from the BIA’s subsequent
decision in In re Bulnes-Nolasco is not material to our
analysis.

24
 1 To be sure, the BIA’s construction is anything but

2 airtight. With respect to the departure bar, it is

3 linguistically awkward to consider the forcible removal of

4 an alien as “constitut[ing] a withdrawal” of any pending

5 motions filed by the alien, 8 C.F.R. § 1003.2(d). See

6 Marin-Rodriguez v. Holder, --- F.3d ----, No. 09-3105, 2010

7 WL 2757321, at *2 (7th Cir. July 14, 2010) (reasoning that

8 the departure bar regulation “amounts to saying that, by

9 putting an alien on a bus, the agency may ‘withdraw’ its

10 adversary’s motion”); cf. Madrigal v. Holder, 572 F.3d 239,

11 245-46 (6th Cir. 2009) (Kethledge, J., concurring). And,

12 when the departure bar is read in isolation, it is not

13 readily apparent why the “withdrawal” that it effects is

14 jurisdictional in nature. See Marin-Rodriguez, 2010 WL

15 2757321, at *3. Moreover, the portion of the regulation

16 governing the BIA’s sua sponte authority permits the Board

17 to exercise that power “at any time.” 8 C.F.R. § 1003.2(a).

18 But the BIA apparently understands the phrase “at any time”

19 to mean “at any time that the alien in question is

20 physically present in the United States.” Finally, although

21 In re Armendarez-Mendez is couched in jurisdictional terms

22 without qualification, it is unclear why a “withdrawal”

25
 1 under the departure bar would deprive the BIA of authority

2 to either: (1) act in a purely sua sponte fashion,

3 unprompted by a person who has been removed; or (2) consider

4 a motion to reopen filed by DHS rather than a person who is

5 being, or has been, removed. For example, in

6 Marin-Rodriguez the BIA appears to have resolved a motion

7 for reconsideration filed by DHS pursuant to the INA,

8 despite knowing full well that the departure bar was in play

9 because the petitioner had already been removed. See

10 Marin-Rodriguez, 2010 WL 2757321, at *1.

11 Though we do not intend to create an exhaustive list of

12 our concerns through these examples, the point is clear:

13 Were we writing on a blank slate, we might reach a different

14 conclusion than that of the BIA regarding the relationship

15 between these portions of 8 C.F.R. § 1003.2. But, in light

16 of In re Armendarez-Mendez, we are not presented with a

17 blank slate. The BIA tells us that the departure bar serves

18 as a jurisdictional limitation on its sua sponte authority.

19 Under the circumstances of this case — where petitioner

20 filed an otherwise-barred motion to reopen and asked the BIA

21 to invoke its sua sponte authority — we cannot say that the

22 Board’s construction is plainly erroneous.

26
 1 First, even before the BIA offered its precedential

2 interpretation, we indicated, in dicta, that an alien’s

3 voluntary departure from the country would result in a

4 “forfeiture of the right to file a motion to reopen.” Singh

5 v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006) (citing 8

6 C.F.R. § 1003.2(d)). And we were not alone in this regard.

7 See Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir.

8 2006); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th

9 Cir. 2003). But see Zi-Xing Lin, 473 F.3d at 981-82.

10 Moreover, following In re Armendarez-Mendez, two Circuits

11 have reached conclusions similar to that of the BIA and held

12 that the departure bar deprives the Board of authority to

13 consider a motion to reopen that would otherwise be

14 defective under the INA. See Toora v. Holder, 603 F.3d 282,

15 288 (5th Cir. 2010); Mendiola v. Holder, 585 F.3d 1303, 1310

16 (10th Cir. 2009); Rosillo-Puga v. Holder, 580 F.3d 1147,

17 1159-60 (10th Cir. 2009); Ovalles v. Holder, 577 F.3d 288,

18 296-97 (5th Cir. 2009). That our Court and others have

19 interpreted 8 C.F.R. § 1003.2 in a fashion similar to the

20 BIA supports the conclusion that the Board’s view in In re

21 Armendarez-Mendez is not plainly erroneous.

22 Second, although certain language from In re

27
 1 Armendarez-Mendez cuts broadly, we need only examine the

2 merits of the Board’s position with respect to the situation

3 presented here. Approximately five years after petitioner’s

4 removal proceedings became final, he filed a motion to

5 reopen that asked the BIA to invoke its sua sponte

6 authority. There is no dispute here that the Attorney

7 General’s decision to provide the BIA with such authority

8 was a valid use of his rulemaking power under the INA. And

9 petitioner has not argued that the sua sponte power itself

10 is inconsistent with the statute. This comes as no

11 surprise, as there was no statutory basis for his motion.

12 Be that as it may, the BIA’s position in In re Armendarez-

13 Mendez has more force in the context of a motion in which an

14 alien asks the BIA to rely on jurisdiction that comes from a

15 regulation rather than a statute. If the Attorney General

16 possesses the authority to vest sua sponte jurisdiction in

17 the BIA — and it is undisputed here that he does — then it

18 stands to reason that he would also have the authority to

19 limit that jurisdiction and define its contours through,

20 among other things, the departure bar.

21 Third, when the text of § 1003.2 is viewed as a whole,

22 it is not unreasonable to interpret the departure bar as a

28
 1 limitation on the BIA’s sua sponte authority. Cf. In re

2 Ames Dep’t Stores, Inc., 582 F.3d 422, 427 (2d Cir. 2009)

3 (noting that statutory interpretation calls for an

4 examination of “the specific context in which [the] language

5 is used, and the broader context of the statute as a whole”

6 (internal quotation marks omitted)). Paragraph (a) of §

7 1003.2, which is titled “General,” refers to the Board’s

8 authority to not only reopen a proceeding sua sponte, but

9 also to resolve motions to reopen or reconsider filed by

10 either DHS or “the party affected by the decision.” 8

11 C.F.R. § 1003.2(a). However, the “[g]eneral” authority

12 conferred upon the BIA by the Attorney General in

13 § 1003.2(a), which may be exercised “at any time,” is not

14 absolute. Id. Rather, paragraph (a) makes clear that the

15 BIA’s sua sponte authority is “subject to the restrictions

16 of . . . section [1003.2].” Id. The more-specific

17 departure bar, codified within “this section” at paragraph

18 (d), may reasonably be interpreted as a “restriction[]” on

19 the “[g]eneral” sua sponte provision in paragraph (a). Id.;

20 see also Navarro-Miranda, 330 F.3d at 676. Therefore, at

21 least insofar as the BIA’s sua sponte authority is concerned

22 — and we need not go any further in this case — the Board’s

29
 1 interpretation of the departure bar as a jurisdictional

2 limitation is not plainly inconsistent with the terms of 8

3 C.F.R. § 1003.2 when the regulation is read as a whole.

4 Finally, the BIA’s construction is supported by the

5 historical evolution of this regulation. At least since the

6 Alien Registration Act of 1940, Congress has delegated to

7 the Attorney General broad authority to establish rules and

8 regulations to enforce the nation’s immigration laws. See

9 Pub. L. No. 670, § 37(a), ch. 339, 54 Stat. at 675. Relying

10 on that congressional delegation, the Attorney General

11 established the departure bar in 1952 and later empowered

12 the BIA to reopen immigration proceedings sua sponte. Since

13 1954, the Board has taken the position that the departure

14 bar operates as a limitation on its jurisdiction to consider

15 motions to reopen. See In re G-y-B, 6 I. & N. Dec. at 160.

16 This limitation must be understood in connection with the

17 BIA’s position “within the larger immigration bureaucracy.”

18 In re Armendarez-Mendez, 24 I. & N. Dec. at 656. By

19 divesting the BIA of authority over persons removed from the

20 country, the Attorney General preserved the jurisdictional

21 primacy of DHS and the State Department over “the inspection

22 and admission of aliens from abroad.” Id.

30
 1 Congress, through decades of silence on this subject

2 despite repeated amendments to the INA, 11 has acquiesced in

3 the BIA’s understanding of the authority granted to it by

4 the Attorney General. See Commodity Futures Trading Comm'n

5 v. Schor, 478 U.S. 833, 846 (1986); United Airlines, Inc. v.

6 Brien, 588 F.3d 158, 172-73 (2d Cir. 2009); see also

7 William, 499 F.3d at 344 (Williams, C.J., dissenting)

8 (“Given the INA’s silence with respect to the departure bar,

9 I understand Congress’s failure to explicitly repeal 8

10 C.F.R. § 1003.2(d) as acquiescence to its continued

11 operation.”). Although the INA was enacted in 1952, see

12 Pub. L. No. 82-414, 66 Stat. at 163, Congress provided no

13 limitations on the scope of the BIA’s authority to consider

14 motions to reopen until the Immigration Act of 1990, Pub. L.

15 No. 101-649, § 545(d)(1), 104 Stat. at 5066. Even then,

16 Congress left it to the Attorney General to consider in the

17 first instance the policy decisions regarding appropriate

18 limitations to be imposed on these motions. See id. When

11
See, e.g., IIRIRA, Pub. L. No. 104-208, 110 Stat. at
3009-546 (Sept. 30, 1996); Immigration Act of 1990, Pub. L.
No. 101-649, 104 Stat. at 4978 (Nov. 29, 1990); Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, 100
Stat. 3359 (Nov. 6 1986); Immigration and Nationality Act
Amendments of 1976, Pub. L. No. 94-571, 90 Stat. 2703 (Oct.
20, 1976); Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat.
911.

31
 1 the Attorney General responded to that legislative mandate

2 in 1996, she saw fit to retain the departure bar. See 8

3 C.F.R. § 3.2 (1996).

4 In the same year, 1996, Congress revised the INA by

5 passing the IIRIRA. See Pub. L. No. 104-208, div. C, 110

6 Stat. at 3009-546. Although the IIRIRA repealed the portion

7 of the INA that precluded judicial review of a BIA decision

8 after an alien leaves the country, see id. § 306, 110 Stat.

9 at 3009-607, the Act was silent as to both the departure bar

10 and the BIA’s sua sponte authority. There is nothing

11 incongruous about retaining the latter but excising the

12 former, for “judicial review of an alien’s petition for

13 review with respect to a final order of removal is not the

14 same as BIA review of a motion to reopen.” William, 499

15 F.3d at 343 (Williams, C.J., dissenting) (emphases in

16 original). By allowing courts to review BIA decisions even

17 after the alien leaves the United States, Congress empowered

18 us to oversee, inter alia, the manner in which the BIA

19 polices its jurisdictional boundaries. In any event, the

20 congressional silence in the IIRIRA regarding § 1003.2 is

21 not inconsistent with the BIA’s position. Therefore, for

22 all of these reasons, we cannot conclude that In re

32
 1 Armendarez-Mendez, as it applies to the facts of this case,

2 is plainly erroneous.

3 There is some superficial tension between our

4 conclusion and a recent decision of the Seventh Circuit.

5 See Marin-Rodriguez, 2010 WL 2757321, at *3-4. In

6 Marin-Rodriguez, the petitioner filed a motion for

7 reconsideration approximately one month after the BIA

8 dismissed his appeal. See id. at *1. Thus, unlike in this

9 case, the motion was timely under the INA. See 8 U.S.C. §

10 1229a(c)(7)(C)(i). The Board granted the motion and

11 remanded to the IJ, apparently unaware at the time that the

12 petitioner had been removed from the country while the

13 motion was pending. See Marin-Rodriguez, 2010 WL 2757321,

14 at *1. The DHS then filed a motion for reconsideration of

15 its own, which the BIA granted based on the departure bar.

16 Id.

17 Because the petitioner’s only motion for

18 reconsideration was timely under the INA, the facts of

19 Marin-Rodriguez resemble those considered by the Fourth

20 Circuit in William. See 499 F.3d at 334 n.5. But the

21 Seventh Circuit rejected the Fourth Circuit’s

22 “understanding” of the INA. Marin-Rodriguez, 2010 WL

33
 1 2757321, at *2. Referring to the Supreme Court’s analysis

2 in Dada v. Mukasey, the Marin-Rodriguez court reasoned as

3 follows:

4 If the Supreme Court sees no incompatibility
5 between a statutory right to apply for [voluntary
6 departure] and an implied-withdrawal approach [to
7 situations where an alien seeks to reopen his
8 removal proceedings after agreeing to voluntarily
9 depart], it is hard to fault the Board for
10 adopting a similar view. Thus an alien with a
11 right to move for reconsideration [under the INA]
12 may give up that right by a specified act [such as
13 departing from the country].
14
15 Id. 12 Nevertheless, the court went on to reason that the

16 “validity” of “the particular condition the Board has

17 attached” on motions to reopen — i.e., physical presence in

18 the United States — “must be ascertained on other grounds.”

12
In Dada, the Supreme Court confronted the tension
between: (1) the time period that an alien is afforded to
leave the country if he agrees to depart voluntarily, which
may be as short as sixty days, see 8 U.S.C. § 1229c(b)(2);
and (2) the ninety-day time period that an alien is afforded
to file a motion to reopen his removal proceedings, see 8
U.S.C. § 1229a(c)(7)(C)(i). The Court held that “to
safeguard the right to pursue a motion to reopen for
voluntary departure recipients, the alien must be permitted
to withdraw, unilaterally, a voluntary departure request
before expiration of the departure period, without regard to
the underlying merits of the motion to reopen.” Dada, 128
S. Ct. at 2319. The Court also suggested that “[a] more
expeditious solution” to the issue in that case “might be to
permit an alien who has departed the United States to pursue
a motion to reopen postdeparture.” Id. at 2320. However,
the departure bar was not placed in issue by the parties
in Dada, and the Court expressly declined to consider it.
See id.

34
 1 Id.

2 With the issue thus framed, the court went on to hold

3 that, “[a]s a rule about subject-matter jurisdiction,

4 § 1003.2(d) is untenable.” Id. at *3. It reasoned that,

5 although the INA authorizes the Board to reconsider or

6 reopen its own decisions, the statute “does not make that

7 step depend on the alien’s presence in the United States.”

8 Id. “[S]ince [the IIRIRA was passed in] 1996 nothing in the

9 statute undergirds a conclusion that the Board lacks

10 ‘jurisdiction’ — which is to say, adjudicatory competence —

11 to issue decisions that affect the legal rights of departed

12 aliens.” Id. (internal citation omitted). The Seventh

13 Circuit then cited Union Pacific Railroad v. Brotherhood of

14 Locomotive Engineers, 130 S. Ct. 584 (2009), for the

15 proposition that “an administrative agency is not entitled

16 to contract its own jurisdiction by regulations or by

17 decisions in litigated proceedings.” Marin-Rodriguez, 2010

18 WL 2757321, at *3. In the court’s view, Union Pacific was

19 “dispositive in favor of the holding in William — though on

20 a rationale distinct from the [F]ourth [C]ircuit’s.” Id. at

21 *3.

22 Properly understood, the analysis in Marin-Rodriguez

35
 1 does not conflict with ours. The point is made clear by

2 reference to the source of BIA jurisdiction that was invoked

3 by the petitioner in each case. In Marin-Rodriguez, the

4 petitioner’s motion for reconsideration was explicitly

5 authorized by the INA; Congress, by enacting the IIRIRA,

6 gave the BIA jurisdiction to consider one such motion if it

7 is filed within ninety days after the removal decision

8 becomes final. See 8 U.S.C. § 1229a(c)(7)(C)(i). In this

9 case, however, petitioner was not eligible to avail himself

10 of this statutory entitlement under the INA. Instead, in

11 support of his motion, he invoked the regulation in which

12 the Attorney General authorized the BIA to consider motions

13 to reopen sua sponte. See 8 C.F.R. § 1003.2(a).

14 Consequently, we need not decide if the Attorney

15 General, by promulgating § 1003.2, has improperly

16 “contract[ed]” the jurisdiction given to the BIA by Congress

17 pursuant to the IIRIRA. Marin-Rodriguez, 2010 WL 2757321,

18 at *3. We leave that question for another day. See supra

19 note 2. The sua sponte power that is at issue here is — and

20 always has been — a creature of regulations promulgated by

21 the Attorney General pursuant to a valid delegation from

22 Congress. See 8 U.S.C. § 1103(g)(2). The Attorney

36
 1 General’s power to limit this aspect of the BIA’s

2 jurisdiction is subsumed within his more expansive power to

3 create it. Therefore, the BIA’s understanding of the

4 departure bar as a limitation on its sua sponte

5 jurisdiction, as opposed to its jurisdiction to consider

6 timely motions to reopen under the INA, cannot be said to be

7 “untenable.”

8 In reaching this conclusion, we are mindful of the

9 admonition from Union Pacific that “the word ‘jurisdiction’

10 has been used by courts . . . to convey ‘many, too many,

11 meanings,’” and that “profligate use of the term” is to be

12 avoided. 130 S. Ct. at 596 (quoting Steel Co. v. Citizens

13 for a Better Env’t, 523 U.S. 83, 90 (1998)). In Union

14 Pacific, the Supreme Court considered the nature of

15 provisions in the Railway Labor Act (“RLA”) that required

16 parties to labor disputes to attempt to reach a settlement

17 “in conference” before submitting the matter to arbitration

18 before the National Railroad Adjustment Board (“NRAB”). See

19 id. at 591-92 & n.3 (citing 45 U.S.C. § 152 Second, Sixth).

20 The NRAB had characterized the “in conference” requirement

21 as a limitation on its jurisdiction, and the Supreme Court

22 disagreed.

37
 1 Congress vested the NRAB with jurisdiction over “all

2 disputes between carriers and their employees ‘growing out

3 of grievances or out of the interpretation or application of

4 agreements concerning rates of pay, rules, or working

5 conditions.’” Slocum v. Delaware, Lackawanna & W. R.R. Co.,

6 339 U.S. 239, 240 (1950) (emphasis added) (quoting 45 U.S.C.

7 § 153 First (i)). Moreover, “Congress gave the [NRAB] no

8 authority to adopt rules of jurisdictional dimension.”

9 Union Pac., 130 S. Ct. at 597 (citing 45 U.S.C. § 153 First

10 (v)). Based largely on the absence of such a delegation,

11 the Court held that the RLA’s “in conference” requirement

12 did not limit the NRAB’s statutory jurisdiction and the NRAB

13 lacked authority to characterize it in that fashion. See

14 id. at 598. As such, the requirement is merely a claim-

15 processing rule, and any defenses based on non-compliance

16 with it are forfeitable.

17 Unlike in Union Pacific, this is not an instance where

18 a statute vests an agency with broad authority that the

19 agency has declined to exercise. Whereas the NRAB’s

20 jurisdiction is established in the statute that created it

21 and the NRAB’s rulemaking authority is rather limited,

22 Congress delegated the authority to define some aspects of

38
 1 the BIA’s jurisdiction to the Attorney General. Compare 45

2 U.S.C. § 153 First (v) (authorizing the NRAB to “adopt such

3 rules as it deems necessary to control proceedings before

4 the respective divisions and not in conflict with the

5 provisions of this section”), with 8 U.S.C. § 1103(g)(2)

6 (authorizing the Attorney General to “establish such

7 regulations, prescribe such forms of bond, reports, entries,

8 and other papers, issue such instructions, review such

9 administrative determinations in immigration proceedings,

10 delegate such authority, and perform such other acts as the

11 Attorney General determines to be necessary for carrying out

12 this section” (emphasis added)). It is undisputed in this

13 case that the delegation to the Attorney General includes

14 the authority to promulgate regulations defining — indeed,

15 expanding — the BIA’s jurisdiction to consider motions to

16 reopen otherwise-final removal proceedings. And petitioner

17 has not argued that the manner in which the Attorney General

18 has chosen to define the BIA’s jurisdiction conflicts with

19 the INA or leads to some sort of interpretive problem under

20 Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

21 Inc., 467 U.S. 837 (1984). Thus, we are mindful of the

22 analytical approach taken by the Supreme Court in Union

39
 1 Pacific, as well as that of the Seventh Circuit in Marin-

2 Rodriguez, but the holdings in those cases are inapposite.

3 Therefore, we hold that the BIA is not plainly

4 erroneous in its position, expressed in In re Armendarez-

5 Mendez, that the departure bar limits its sua sponte

6 jurisdiction. Accordingly, because the Board is entitled to

7 deference with respect to that view, it did not err in

8 concluding that § 1003.2(d) deprived it of authority to

9 consider petitioner’s motion to reopen after he was removed

10 from the country.

11 C. Nunc Pro Tunc Relief

12 Petitioner also argues that, as a matter of equity, he

13 is entitled to nunc pro tunc relief in order to avoid the

14 application of the departure bar. 13 He asserts that this

15 relief is warranted because the BIA erred by denying his

16 motion for a stay of removal on July 17, 2008. Had the stay

17 been granted, petitioner contends, he would not have been

18 removed from the country prior to the Board’s order granting

13
The phrase nunc pro tunc means, literally, “now for
then.” Iouri v. Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006)
(internal quotation marks omitted). “When a matter is
adjudicated nunc pro tunc, it is as if it were done as of
the time that it should have been done.” Edwards v. INS,
393 F.3d 299, 308 (2d Cir. 2004); accord Blake v. Carbone,
489 F.3d 88, 94 n.5 (2d Cir. 2007).

40
 1 his motion to reopen. Therefore, in petitioner’s view, the

2 appropriate remedy is that the BIA’s September 10, 2008

3 order, which reopened his removal proceedings and remanded

4 the case for “clarification” of the IJ’s finding that his

5 asylum application was frivolous, “should have been granted

6 nunc pro tunc to the date of the erroneous denial of his

7 motion for a stay of removal.” (Pet’r Br. 22.)

8 “It is . . . beyond question that an award of nunc pro

9 tunc may, in an appropriate circumstance, be granted as a

10 means of rectifying error in immigration proceedings.”

11 Edwards v. INS, 393 F.3d 299, 309 (2d Cir. 2004) (emphasis

12 added, footnote omitted). However, the doctrine of nunc pro

13 tunc “is a ‘far-reaching equitable remedy’ applied in

14 ‘certain exceptional cases,’ typically aimed at

15 ‘rectify[ing] any injustice [to the parties] suffered by

16 them on account of judicial [or agency] delay.’” Iouri v.

17 Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006) (quoting

18 Iavorski, 232 F.3d at 130 n.4 and Weil v. Markowitz, 829

19 F.2d 166, 175 (D.C. Cir. 1987)). We have not previously

20 decided whether the doctrine of nunc pro tunc is available

21 as a means of providing equitable relief where the BIA is

22 divested of jurisdiction by the departure bar to consider an

41
 1 alien’s motion to reopen. To our knowledge, the BIA has not

2 expressed a view on this question, either. 14 Nevertheless,

3 we need not resolve that issue in this case. Even assuming,

4 arguendo, that the departure bar does not foreclose

5 equitable relief, petitioner has not demonstrated that a

6 nunc pro tunc remedy is warranted.

7 Petitioner relies principally on Edwards v. INS.

8 There, the BIA denied three aliens an opportunity to apply

9 for “§ 212(c) relief,” i.e., a waiver of deportation, 15

10 based on an interpretation of the INA that we later deemed

14
The availability of nunc pro tunc relief to a removed
alien, at least under certain circumstances, would be
consistent with some aspects of the BIA’s analysis in In re
Bulnes-Nolasco, 25 I. & N. Dec. at 59-60.
15
The phrase “§ 212(c) relief,” as used in Edwards,
referred to waivers of deportation under the INA, 8 U.S.C. §
1182(c) (1994) (repealed 1996). Aliens were required to
demonstrate three criteria in order to be eligible for §
212(c) relief:

1) that they possessed lawful permanent resident
status; 2) that they had been lawfully domiciled
in the United States for seven or more years; and
3) if they had been convicted of an aggravated
felony or felonies, that they had served less than
five years in prison on those aggravated felony
offenses.

Edwards, 393 F.3d at 307. In the IIRIRA, Congress “replaced
§ 212(c) relief with a new form of discretionary relief
known as ‘cancellation of removal.’” Edwards, 393 F.3d at
302 & n.4 (citing 8 U.S.C. § 1229b).

42
 1 to be legally erroneous, see St. Cyr v. INS, 229 F.3d 406,

2 418 (2d Cir. 2000), aff’d 533 U.S 289, 326 (2001); Henderson

3 v. INS, 157 F.3d 106, 130 (2d Cir. 1998). See Edwards, 393

4 F.3d at 303-06. After the BIA erroneously denied the §

5 212(c) relief, each petitioner accrued more than five years’

6 imprisonment, which rendered them independently ineligible

7 for the waiver under the INA as it existed at the time. See

8 id. at 307 (citing 8 U.S.C. § 1182(c) (1994) (repealed

9 1996)). Following the decisions in Henderson and St. Cyr,

10 the Edwards petitioners asked the BIA to reopen their

11 immigration proceedings and to reconsider whether they were

12 eligible for § 212(c) relief. See id. at 303. These

13 applications were denied, however, on the alternative basis

14 that each petitioner had been incarcerated for more than

15 five years. See id. at 303-06.

16 In Edwards, we rejected the application of the INA’s

17 five-year bar and concluded that, under the doctrine of nunc

18 pro tunc, the petitioners were entitled to apply for §

19 212(c) relief based on the facts as they existed at the time

20 of their initial, erroneously denied applications. See id.

21 at 312. We held that “an award of nunc pro tunc relief

22 [should] ordinarily be available where agency error would

43
 1 otherwise result in an alien being deprived of the

2 opportunity to seek a particular form of deportation

3 relief.” Id. at 310-11. On the other hand, “agency error

4 would not ‘result’ in an alien being deprived of the

5 opportunity to seek deportation relief where the alien would

6 have independently been barred at the time of the error from

7 applying for the form of relief at issue.” Id. at 311 n.15

8 (emphasis in original).

9 Petitioner seeks to attribute error to the BIA’s denial

10 of his request for a stay of removal. In denying that

11 aspect of his motion, the Board reasoned that it “ha[d]

12 concluded that there [was] little likelihood that the motion

13 [to reopen would] be granted.” Petitioner asserts that

14 there is “no question” that the BIA erred in issuing this

15 decision because the Board ultimately granted the motion to

16 reopen, notwithstanding its initial characterization of the

17 submission as having “little likelihood” of success. (Pet’r

18 Br. 24.)

19 This contention, though flawed as a matter of formal

20 logic, is not without intuitive appeal. Cf. Dada, 128 S.

21 Ct. at 2320 (suggesting that “it may constitute an abuse of

22 discretion for the BIA to” deny a motion for a stay of

44
 1 removal “where the motion states nonfrivolous grounds for

2 reopening”). However, in Edwards we concluded that

3 principles of equity favored a nunc pro tunc remedy in

4 response to a “significant error” by the BIA. 393 F.3d at

5 309. There, the “significan[ce]” of the error had a

6 constitutional dimension: We noted that “an erroneous

7 denial of the opportunity to apply for § 212(c) relief may

8 constitute a due process violation.” Id. at 308-09 (citing

9 United States v. Copeland, 376 F.3d 61, 70-71 (2d Cir. 2004)

10 and United States v. Sosa, 387 F.3d 131, 138 (2d Cir.

11 2004)). By contrast, in assessing the BIA’s denial of

12 petitioner’s application for a stay of removal, it must be

13 remembered that: (1) petitioner’s motion to reopen relied

14 on the Board’s “entirely discretionary” sua sponte

15 authority, Ali, 448 F.3d at 518; 16 and (2) because the

16 motion was based on a 2007 BIA decision, In re Y-L-, that

17 was issued after petitioner’s 2001 merits hearing, the

18 motion did not, strictly speaking, call into question the

19 merits or procedure underlying the IJ’s findings, cf. NLRB

16
We note that questions relating to the manner in
which the BIA exercises its sua sponte authority, which we
lack jurisdiction to review, are distinct from questions
relating to the BIA’s understanding of the regulation
governing the scope of this authority, which present
interpretive issues that are squarely within our province.

45
 1 v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995)

2 (“Appellate courts ordinarily apply the law in effect at the

3 time of the appellate decision . . . .”). Viewed in that

4 light, the BIA’s denial of petitioner’s motion for a stay of

5 removal due to its belief that the motion was unlikely to

6 succeed was not, as petitioner suggests, necessarily an

7 abuse of discretion.

8 Moreover, there is no allegation of undue dely or

9 misconduct by the BIA in resolving petitioner’s motion to

10 reopen. If anyone can be faulted for “delay,” Iouri, 464

11 F.3d at 182, it is petitioner. He did not appeal the IJ’s

12 original findings to this Court after the BIA affirmed her

13 decision in 2003, and he did not file his motion to reopen

14 and the application for a stay of removal until after he was

15 placed in detention and his removal was imminent. The

16 motion was also filed almost fifteen months after the

17 issuance of the BIA decision upon which it relied, In re Y-

18 L-. It was for these reasons that the BIA properly

19 characterized petitioner’s 2008 submission as

20 “opportunistic.” 17 Cf. Azize v. Bureau of Citizenship &

17
In its September 10, 2008 order, the BIA took the
view that petitioner’s motion was “opportunistic” because he
“did not file [the] motion at the time [the Board] issued
[In re Y-L-]” and instead “filed the motion only after he

46
 1 Immigration Servs., 594 F.3d 86, 93 (2d Cir. 2010) (Jacobs,

2 C.J., dissenting) (reasoning that the petitioner’s delay in

3 seeking relief militated against granting a nunc pro tunc

4 remedy); Edwards, 393 F.3d at 311 n.15 (noting that nunc pro

5 tunc relief may be “rendered in appropriate by the existence

6 of unclean hands, or other equitable factors” (emphasis in

7 original)). This timing takes on added significance due to

8 petitioner’s argument that, because his father was granted

9 asylum in 2006, he would be eligible for asylum as a

10 derivative beneficiary under the Child Status Protection Act

11 (“CSPA”), see 8 U.S.C. § 1158(b)(3), if the IJ were to

12 vacate her finding that his prior application was frivolous.

13 Because petitioner has offered almost no documentation to

14 support this contention, we are unable to assess its merits.

15 However, potential eligibility for asylum under the CSPA

16 gave petitioner and his counsel every reason to pursue

17 challenges to the IJ’s frivolousness finding both zealously

18 and expeditiously. Petitioner did not do so and instead

19 waited until the eleventh hour to file his motion for a stay

20 of removal.

was placed in detention and his removal became imminent.”
The BIA’s characterization is consistent with the fact that
petitioner filed the motion on July 15, 2008 but was removed
just seven days later, on July 22.

47
 1 Finally, in Edwards it was crucial to our analysis that

2 the relief for which those petitioners sought to apply was

3 granted “in a significant percentage of cases.” 393 F.3d at

4 311. In fact, we remanded one of the cases with specific

5 instructions to grant the petitioner § 212(c) relief without

6 any further proceedings. See id. at 312. But that cannot

7 be said in this case. Petitioner has asked us to direct

8 that the BIA’s September 10, 2008 order be entered, nunc pro

9 tunc, as of the date the Board denied his motion for a stay

10 of removal. However, that order did not vacate the IJ’s

11 frivolousness finding. Instead, the BIA reopened and

12 remanded the removal proceedings “for clarification,” and

13 the Board specifically noted that it did “not necessarily

14 disagree with the [IJ’s] ultimate findings.” (JA 19-20

15 (emphasis added).)

16 As such, the link between the relief petitioner wishes

17 to pursue and the mechanism by which he hopes to obtain it

18 is far more attenuated than in Edwards. The procedural

19 mechanism to which petitioner seeks access through the

20 doctrine of nunc pro tunc is a remand to the IJ for

21 compliance with In re Y-L-. But he does not simply seek a

22 more thorough explanation, he hopes to have the

48
 1 frivolousness finding vacated. Petitioner offers nothing

2 but speculation as to how, in the context of such a remand,

3 he would obtain that relief.

4 Balanced against this conjecture, we find little reason

5 in the record to think that the IJ would abandon her

6 frivolousness finding. At the outset of the April 4, 2001

7 merits hearing regarding petitioner’s applications for

8 relief from removal, the IJ issued warnings about the

9 consequences of filing a frivolous application for asylum.

10 (JA 178.) The BIA recently clarified the guidance it

11 offered in In re Y-L- by noting that “[s]ufficient notice

12 [of the possibility of a frivolousness finding] is afforded

13 when the [IJ] explains the consequences of filing a

14 frivolous asylum application, either at the time the asylum

15 application is filed or prior to commencement of the merits

16 hearing.” In re B-Y-, 25 I. & N. Dec. 236, 242 (BIA 2010).

17 After receiving this notice, petitioner indicated that he

18 understood the IJ’s warnings and elected to proceed with his

19 application. (JA 179, 182-83.) Early in his testimony, the

20 IJ indicated to petitioner that the manner in which he was

21 answering questions was adversely affecting her assessment

22 of his credibility. (See JA 197-98 (“The law provides that

49
 1 if you only give vague answers you may well be denied

2 [asylum] for that reason alone because it may impair your

3 believability.”); see also id. at 198.) Subsequently, while

4 petitioner was being cross-examined, the IJ made a finding

5 on the record that one of his responses was not “credible,

6 believable or factually accurate.” (JA 224.)

7 Immediately following petitioner’s testimony, the IJ

8 ruled on the record that his asylum application was

9 “entirely frivolous.” (JA 229.) The IJ reasoned as

10 follows: “I believe the lies you have told to the [c]ourt

11 are material and I believe they were told to the [c]ourt

12 purely to secure an [i]mmigration benefit.” (Id. (emphases

13 added).) After the hearing, the IJ issued a nineteen-page

14 decision that reviewed petitioner’s testimony, nearly line

15 by line; identified numerous statements that she viewed as

16 misrepresentations; and characterized his testimony, on the

17 whole, as “absurd.” (JA 88; see also id. at 76 (“It is the

18 [c]ourt’s opinion that [Zhang] just plain made this up.”);

19 id. at 77 (“[T]his is the vaguest testimony I have heard in

20 a long time and . . . [Zhang] gave the [c]ourt the

21 impression repeatedly during this hearing that he had

22 memorized a story and was afraid he would miss a bit . . .

50
 1 .”).) In the conclusion of the decision, the IJ found that

2 petitioner had submitted “a frivolous application for asylum

3 . . . supported entirely by . . . perjurious testimony.”

4 (JA 90.) On direct appeal, the BIA affirmed and adopted the

5 IJ’s decision as its own. Petitioner did not seek judicial

6 review of that conclusion.

7 Thus, although it is largely undisputed that the IJ’s

8 frivolousness finding ran afoul of the intervening

9 procedural protections articulated by the BIA in In re Y-L-,

10 petitioner has done little to challenge the IJ’s findings

11 that: (1) his testimony was “perjurious” as to “material”

12 elements of his asylum application; and (2) he committed

13 such perjury “purely to secure an [i]mmigration benefit.”

14 See 8 C.F.R. § 1208.20 (“[A]n asylum application is

15 frivolous if any of its material elements is deliberately

16 fabricated.”). Therefore, petitioner’s speculation that he

17 could obtain vacatur of the IJ’s frivolousness finding in a

18 remand pursuant to In re Y-L- runs headlong into a record

19 that strongly suggests that the IJ would not abandon that

20 conclusion.

21 * * *

22 In sum, the putative error that petitioner has

51
 1 identified is different in kind than the “significant error”

2 that we remedied in Edwards by applying the doctrine of nunc

3 pro tunc. Moreover, there is no allegation that the

4 government engaged in misconduct or undue delay when

5 resolving petitioner’s motion to reopen. Petitioner’s own

6 delay in filing the motion was at least partially to blame

7 for the fact that the Board did not resolve it before he was

8 removed. Finally, the remand that petitioner seeks is

9 exceedingly unlikely to result in the relief that he

10 ultimately hopes to obtain. Therefore, under the

11 circumstances of this case, we are not persuaded that

12 principles of equity warrant nunc pro tunc relief.

13 III. CONCLUSION

14 For the foregoing reasons, the petition for review is

15 denied.

52