Case: 09-60351 Document: 00511267893 Page: 1 Date Filed: 10/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2010
No. 09-60351
Summary Calendar Lyle W. Cayce
Clerk
RAFAEL RODRIGUEZ-BARAJAS,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Rafael Rodriguez-Barajas petitions for review of a decision of the Board of
Immigration Appeals (“BIA”), arguing that the BIA erred in holding that it
lacked jurisdiction to hear his appeal because he had voluntarily left the country
while his habeas corpus petition was pending in federal court. We must decide
whether an alien subject to removal proceedings who voluntarily departs the
United States after the BIA has issued a decision on his appeal, but while his ha-
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No. 09-60351
beas petition is pending, is deemed to have withdrawn his appeal pursuant to
8 C.F.R. § 1003.4 (2010). We conclude that the regulation does not apply to de-
partures occurring after a BIA decision on appeal and while a habeas petition
is pending, so the BIA has jurisdiction to review Rodriguez-Barajas’s appeal.
I.
In 1990, Rodriguez-Barajas was admitted into the United States as a law-
ful permanent resident. In 1998, he was convicted in state court of possession
of marihuana and sentenced to four years of deferred adjudication. In 2001, he
applied for admission as a returning resident alien but was found ineligible for
admission because of his conviction. He was served with a notice to appear al-
leging he was subject to removal for the conviction.
Rodriguez-Barajas appeared with counsel before an immigration judge and
conceded the allegations in the notice to appear. After a hearing, the immigra-
tion judge ruled that Rodriguez-Barajas was ineligible for cancellation of re-
moval because of his aggravated-felony conviction. The BIA dismissed his ap-
peal for failure to file a brief.
Rodriguez-Barajas filed a habeas petition in federal district court challeng-
ing the denial of his application for cancellation of removal. That petition was
transferred to this court, which, in 2007, granted the Attorney General’s motion
to remand to the BIA in light of Lopez v. Gonzales, 549 U.S. 47 (2006). On re-
mand, the government submitted documents showing that, during the pendency
of his habeas petition, Rodriguez-Barajas had voluntarily removed himself to
Mexico. The BIA dismissed the appeal for lack of jurisdiction because, pursuant
to 8 C.F.R. § 1003.4, Rodriguez-Barajas’s voluntary departure constituted a
withdrawal of his appeal. Rodriguez-Barajas filed the instant petition for review
in this court.
2
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No. 09-60351
II.
We review the BIA’s rulings of law de novo. Alvarado de Rodriguez v. Hol-
der, 585 F.3d 227, 233 (5th Cir. 2009). We may not affirm the BIA’s decision ex-
cept on the basis of the reasons it provided. Galvez-Vergara v. Gonzales, 484
F.3d 798, 803 n.6 (5th Cir. 2007). We must defer to an agency’s interpretation
of its own regulation “unless an ‘alternative reading is compelled by the regula-
tion’s plain language or by other indications of the Secretary’s intent at the time
of the regulation’s promulgation.’”1 We grant the BIA's interpretation of its own
regulations “considerable legal leeway.” 2
The regulation on which the BIA relied states, in pertinent part:
Departure from the United States of a person who is the subject of
deportation or removal proceedings . . . subsequent to the taking of
an appeal, but prior to a decision thereon, shall constitute a with-
drawal of the appeal, and the initial decision in the case shall be fi-
nal to the same extent as though no appeal had been taken.
8 C.F.R. § 1003.4. Rodriguez-Barajas argues that § 1003.4 is not applicable, be-
cause his departure after the BIA’s decision on appeal, but while his habeas peti-
tion was pending, was not “subsequent to the taking of an appeal, but prior to
a decision thereon.”
No court appears to have addressed whether the language “subsequent ‘to
the taking of an appeal, but prior to a decision thereon” covers departures occur-
ring after a decision by the BIA but while a habeas petition is pending. The gov-
ernment argues that this case is controlled by Long v. Gonzales, 420 F.3d 516
(5th Cir. 2005). Long did not, however, address the issue we face, because the
petitioner there departed the country before the BIA rendered a decision. Id. at
1
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v.
Jenkins, 485 U.S. 415, 430 (1988)).
2
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (quoting Barnhart v.
Walton, 535 U.S. 212, 217 (2002)).
3
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518. Rather, the issue in Long was whether § 1003.4 covered involuntary as well
as voluntary departures. Id. at 520-21. That we considered the petitioner in
Long to have waived his appeal, id. at 520, tells us nothing about whether a peti-
tioner does so if his departure follows the BIA’s decision.
Without any precedent on point, we turn to the plain language of § 1003.4,
which says that if an alien departs “subsequent to the taking of an appeal, but
prior to a decision thereon . . . the initial decision in the case shall be final to the
same extent as though no appeal had been taken.” From this language, it is
evident that the BIA’s decision on appeal is “a decision” under the regulation de-
spite being subject to habeas review. If, according to § 1003.4, the immigration
judge’s decision counts as a “decision,” albeit an “initial” one, despite being sub-
ject to BIA review, then surely the BIA’s decision to dismiss an appeal counts as
“a decision” despite being subject to habeas review. And because the regulation
makes a distinction between “initial decision[s]” and those that are “final,” it is
manifest that a BIA decision on appeal is “a decision” even if it is not “final” in
the sense that it is subject to habeas review. Therefore, departure after a BIA
decision on appeal, while a habeas petition is pending, is not “prior to a decision”
in the appeal.
A contrary interpretation, in which “a decision” would occur only once the
case was conclusively decided, would also render the words “prior to a decision
thereon” superfluous. This is so because once the case is conclusively decided,
there is no longer an appeal to waive. Therefore, any departure subsequent to
the taking of an appeal by a person subject to removal proceedings would consti-
tute a waiver of the appeal.
Comparing § 1003.4 to a similar provision, 8 C.F.R. § 1003.2(d) (2010), is
also instructive. Under § 1003.2(d), any departure from the United States after
filing a motion to reopen or reconsider by a person subject to removal proceed-
ings precludes BIA jurisdiction to consider the motion. The government argues
4
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that because the same policies underlie §§ 1003.2(d) and 1003.4, the two sections
should be interpreted analogously. But there is a critical difference between the
two provisions: Section 1003.2(d) says that “[a]ny departure from the United
States . . . occurring after the filing of a motion to reopen or a motion to recon-
sider, shall constitute a withdrawal of such a motion.” By contrast, § 1003.4 says
that a departure constitutes a withdrawal of an appeal only if it occurs “prior to
a decision thereon.” The presence of such limiting language in § 1003.4, but not
in § 1003.2(d), suggests that the former regulation should not be interpreted to
mirror the latter.
A contrary holding would also conflict with Nken v. Holder, 129 S. Ct.
1749, 1761 (2009), holding that the burden of removal alone does not by itself
constitute irreparable injury for purposes of granting a stay of removal. The
Court so held because the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 permitted judicial review of a petition by a removed alien.3
Without BIA jurisdiction on remand, consideration of a removed alien’s habeas
petition would be pointless, because the sole remedy available under habeas
review in the case of a removed alien is to vacate the removal order.4 Therefore,
contra Nken, removal from the United States would result in irreparable injury,
because an alien would not be able to obtain any relief from the BIA on remand
after the order was vacated.
The government admits that “there is a tension between this [c]ourt’s jur-
isdiction over petitions for review and the regulation that controls the [BIA’s]
jurisdiction” and concedes that an alien removed while his habeas petition is
3
Nken, 129 S. Ct. at 1761 (“Aliens who are removed may continue to pursue their peti-
tions for review, and those who prevail can be afforded effective relief by facilitation of their
return, along with restoration of the immigration status they had upon removal.”).
4
Zalawadia v. Ashcroft, 371F.3d 292, 301 (5th Cir. 2004) (“[V]acating the deportation
order is the beginning and end of the habeas authority we have . . . .”).
5
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pending “could nonetheless pursue his appeal before the [BIA]” on remand. The
government argues that the BIA nevertheless does not have jurisdiction over
Rodriguez-Barajas’s appeal, because his departure from the United States was
voluntary. The plain language of § 1003.4, however, makes no distinction be-
tween voluntary and involuntary departures5 —neither is covered by § 1003.4 if
it does not occur “prior to a decision” on the appeal.
In sum, § 1003.4 unambiguously does not bar the BIA’s jurisdiction over
the appeal of an alien who departs, whether voluntarily or involuntarily, after
the BIA has decided his appeal but while his habeas petition is pending.6 There-
fore, the government’s interpretation of the regulation is not entitled to defer-
ence. Thomas Jefferson Univ., 512 U.S. at 512.
The petition for review is GRANTED, the decision of the BIA is VACAT-
ED, and this matter is REMANDED for further proceedings as needed.7
5
Long, 420 F.3d at 520 (stating that making a distinction between voluntary and invol-
untary departures “would require us to read into § 1003.4 an exception that it neither express-
ly nor implicitly provides”).
6
We need not determine whether § 1003.4 bars BIA jurisdiction in the case of an alien’s
departure while his remanded appeal is pending before the BIA. We decide only that the BIA
has jurisdiction on remand when an alien departs while his habeas petition is pending and be-
fore the case has been remanded to the BIA.
7
The government argues, in the alternative, that
even assuming the [BIA] had jurisdiction to consider Petitioner’s appeal, he is
not eligible for any form of relief. Because he relinquished his lawful perma-
nent resident status . . ., he is not eligible for cancellation of removal under INA
section 240A(a) . . ., and he is not eligible for cancellation of removal under INA
section 240a(b) . . ., because of his controlled substance conviction.
We express no view on that assertion, which the BIA is free to consider on remand. By a post-
submission letter filed pursuant to Federal Rule of Appellate Procedure 28(j), Rodriguez-Ba-
rajas claims support from Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and Dada v.
Mukasey, 554 U.S. 1 (2008). We likewise do not opine on the applicability, if any, of those deci-
sions, nor do we limit the matters that the BIA may consider, as appropriate, on remand.
6