FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YGNACIO CCAYHUARI OCAMPO,
Petitioner, No. 06-71848
v.
Agency No.
A072-687-371
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review or an Order of
the Bureau of Immigration Appeals
Argued and Submitted
July 14, 2010—San Francisco, California
Filed December 14, 2010
Before: Procter Hug, Jr., and Milan D. Smith, Jr.,
Circuit Judges, and Thomas F. Hogan,, Senior District
Judge.*
Opinion by Judge Thomas F. Hogan
*The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of District of Columbia, sitting by designation.
20029
20032 CCAYHUARI OCAMPO v. HOLDER
COUNSEL
Amy M. Spicer (argued), Andrea Sheridan Ordin, Amy Liang,
and Arti L. Bhimani, Morgan, Lewis & Bockius LLP, for the
petitioner Ygnacio Ccayhuari Ocampo.
Kate Deboer Balaban (argued), Trial Attorney, Peter D. Keis-
ler, Assistant Attorney General, Barry J. Pettinato, Senior Lit-
igation Counsel, Francis W. Fraser, Senior Litigation
Counsel, United States Department of Justice, Civil Division,
Office of Immigration Litigation, for the respondent Eric H.
Holder Jr., Attorney General.
OPINION
HOGAN, Senior United States District Judge:
Ygnacio Ccayhuari Ocampo petitions for review of a Board
of Immigration Appeals (“BIA”) order denying as untimely
his motion to reopen his immigration removal proceedings.
Because a removal order that grants voluntary departure
becomes final upon the earlier of (i) a BIA determination
affirming the order or (ii) the expiration of the deadline to
CCAYHUARI OCAMPO v. HOLDER 20033
seek the BIA’s review of the order, and not upon overstay of
the voluntary departure period, we hold that the BIA correctly
determined that Ccayhuari’s motion to reopen was untimely.
We therefore deny the petition.
I
Ccayhuari is a citizen of Peru who was admitted to the
United States on December 1, 1988, as a nonimmigrant tem-
porary worker with authorization to remain until October 14,
1990. AR 37, 920. After overstaying his visa, Ccayhuari
applied for asylum in 1993 on the ground that he previously
was a member of the Peruvian army and, as a result, he feared
persecution by the Sandero Luminoso, which is more com-
monly referred to as the Shining Path. AR 31-34, 40-45. The
former Immigration and Naturalization Service (“INS”) began
removal proceedings in 1999, AR 37-38, during which Ccay-
huari admitted all factual allegations and conceded his remov-
ability, AR 40. On September 25, 2000, an Immigration Judge
(“IJ”) determined that Ccayhuari was credible and “his fear
may be subjectively genuine, however, objectively the C[o]urt
finds that there’s no reasonable basis on which to find that
anyone would want to harm the respondent since he has been
absent from Peru for some 13 years.” AR 47. Accordingly,
the IJ denied Ccayhuari’s applications for asylum, withhold-
ing of removal, and relief under the Convention Against Tor-
ture (“CAT”). AR 47. The IJ noted that, during an earlier
proceeding, Ccayhuari had conceded his removability and that
the IJ had designated Peru as the country for removal. AR 40-
41. However, the IJ granted Ccayhuari’s application for vol-
untary departure for 60 days. AR 48.
Ccayhuari appealed the IJ’s decision to the BIA, which
summarily affirmed the decision via an order dated November
12, 2002. AR 54. Ccayhuari then petitioned this court for
review of the BIA’s summary affirmance. AR 56-69. In 2003,
while Ccayhuari’s petition was pending before this court, he
married a United States citizen and, a year later, his wife
20034 CCAYHUARI OCAMPO v. HOLDER
began the process to have his status adjusted to become a per-
manent resident by filing an I-130 Petition for Alien Relative.
AR 71, 73-74. On March 29, 2005, this court denied Ccay-
huari’s petition for review but, several months later, granted
Ccayhuari’s motion to stay the issuance of the mandate until
the United States Citizenship and Immigration Services
(“Immigration Services”)1 processed his wife’s I-130 petition.
AR 89. The Immigration Services approved the I-130 petition
on December 16, 2005. AR 91.
On February 17, 2006, Ccayhuari filed a motion to reopen
with the BIA, seeking consideration of his prima facie request
for adjustment of status and to stay his voluntary departure
period pending resolution of the motion. AR 14-20. On April
3, 2006, the BIA denied the motion to reopen as untimely
because it was not filed within 90 days after the BIA’s
November 12, 2002, order.
Ccayhuari now petitions this court to reverse the BIA’s
decision and remand his case so he can proceed to adjust his
immigration status. On October 17, 2006, the court granted a
temporary stay of Ccayhuari’s voluntary departure period
pending the resolution of this petition.
II
The BIA’s denial of a motion to reopen is reviewed for
abuse of discretion. He v. Gonzales, 501 F.3d 1128, 1130 (9th
Cir. 2007). “The decision of the BIA should be left undis-
turbed unless it is ‘arbitrary, irrational, or contrary to law.’ ”
Id. at 1131 (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th
Cir. 2002)). “We review de novo the BIA’s determination of
purely legal questions.” Dela Cruz v. Mukasey, 532 F.3d 946,
948 (9th Cir. 2008) (per curiam).
1
“As of March 2003, INS became United States Citizenship and Immi-
gration Services, an agency within the Department of Homeland Securi-
ty.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1013 n.1 (9th Cir.
2008).
CCAYHUARI OCAMPO v. HOLDER 20035
III
Ccayhuari contends that his motion to reopen was timely
because it was not due until 90 days after entry of a “final”
order of removal and, when an alien has been granted volun-
tary departure, an order of removal does not become “final”
until the alien overstays the voluntary departure period.
(Pet’r’s Br. 10.) We disagree.
[1] Determining the deadline that applies to a motion to
reopen filed by an alien who has been granted voluntary
departure is a question of statutory interpretation. As this
court previously explained, when interpreting a federal statute
“we follow the procedure prescribed in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-45 (1984).” Acosta v. Gonzales, 439 F.3d 550, 552 (9th
Cir. 2006). “The first step under Chevron is to determine
whether the statutory meaning is unambiguous.” Azarte v.
Ashcroft, 394 F.3d 1278, 1285 (9th Cir. 2005). “If congressio-
nal intent is clear, both the court and the agency must ‘give
effect to the unambiguously expressed intent of Congress.’ ”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir.
2006) (quoting Chevron, 467 U.S. at 843). “If, however, Con-
gress has not directly addressed the exact issue in question, a
reviewing court must defer to the agency’s construction of the
statute so long as it is reasonable.” Id.
[2] The statute at issue in this case is the Immigration and
Naturalization Act (“INA”), which is codified in Title 8 of the
United States Code. The INA sets forth the procedures that
apply to immigration removal proceedings at 8 U.S.C.
§ 1229a, which states in subsection (c)(7)(C)(i) that a motion
to reopen “shall be filed within 90 days of the date of the
entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(i).
As this court recently concluded in Vega v. Holder,2 how-
2
The decision in Vega was issued four days after we heard arguments
in this case.
20036 CCAYHUARI OCAMPO v. HOLDER
ever, the statute is ambiguous because it neglects to define the
phrase “final administrative order of removal.” 611 F.3d
1168, 1170 (9th Cir. 2010). As a result, the Vega court
deferred to the agency’s interpretation of the deadline to file
a motion to reopen as set forth in 8 C.F.R. § 1003.2(c)(2),
which “requires that such a motion be filed within 90 days of
[the date] when ‘the final administrative decision was ren-
dered in the proceeding sought to be reopened.’ ” Id. (empha-
sis omitted) (quoting 8 C.F.R. § 1003.2(c)(2)). The court held
that, “[r]eading both the statute and the regulation together, ‘a
final administrative order of removal’ is ‘the final administra-
tive decision . . . rendered in the proceeding sought to be
reopened.’ ” Id. at 1171 (quoting 8 U.S.C. § 1229a(c)(7)(C)(i)
and 8 C.F.R. § 1003.2(c)(2)). The court also determined that
“the proceeding sought to be reopened” referred to the initial
merits decision that an alien is removable. Id. (reasoning that
the purpose of a motion to reopen is to offer new evidence
and such evidence “can only pertain to the initial merits deter-
mination that the alien is removable”). The court was not
presented with the issue of when such administrative deci-
sions are deemed “final.”
[3] In this case, Ccayhuari seeks to reopen the initial merits
determination that he is removable so he can offer new evi-
dence that he is eligible to adjust his immigration status based
on his marriage and the Immigration Service’s approval of his
wife’s I-130 petition. The “administrative decision” at issue,
then, is the BIA’s November 12, 2002, order summarily
affirming the IJ’s determination that Ccayhuari was remov-
able and ordering his removal if he failed to voluntarily depart
within 30 days of the date of the order. Ccayhuari argues,
however, that the BIA’s November 12, 2002, order was not
“final” because, pursuant to a regulation codified at 8 C.F.R.
§ 1241.1(f),3 a removal order does not become “final” until an
alien overstays his voluntary departure period.
3
8 C.F.R. § 1241.1 was issued by the Department of Homeland Security
in 2005, Thapa v. Gonzales, 460 F.3d 323, 333 (2d Cir. 2006), which was
after the BIA’s order was issued in this case but before Ccayhuari moved
to reopen his removal proceedings.
CCAYHUARI OCAMPO v. HOLDER 20037
[4] 8 C.F.R. § 1241.1(f) states that an order of removal
becomes final “[i]f an immigration judge issues an alternate
order of removal in connection with a grant of voluntary
departure, upon overstay of the voluntary departure period, or
upon the failure to post a required voluntary departure bond
within 5 business days.” This court has never addressed the
interpretation of 8 C.F.R. § 1241.1(f) as it pertains to the
timeliness of motions to reopen. Two other circuits, however,
considered the application of 8 C.F.R. § 1241.1(f) to deter-
mine whether a removal order was final for the purpose of
judicial review and both circuits held that 8 C.F.R. § 1241.1(f)
was unenforceable because it conflicted with the statutory
definition of finality provided in 8 U.S.C. § 1101(a)(47)(B).
See Thapa, 460 F.3d at 334; Obale v. Attorney General, 453
F.3d 151, 160 (3rd Cir. 2006), superseded by statute on other
grounds as stated in Patel v. Attorney General, 619 F.3d 230
(3rd Cir. 2010).
In Thapa and Obale, the United States Courts of Appeals
for the Second and Third Circuits, respectively, considered
whether they had jurisdiction to stay orders of voluntary
departure issued by an IJ or the BIA. 460 F.3d at 324; 453
F.3d at 154. To answer this question, both courts analyzed
whether a removal order that granted voluntary departure
qualified as a “final order of removal” under 8 U.S.C. § 1252,
which authorizes federal courts to exercise jurisdiction over
such orders. 460 F.3d at 332-34; 453 F.3d at 157-60. In both
Thapa and Obale, the courts reviewed the applicability of 8
C.F.R. § 1241.1(f) to determine whether it defines when a
removal order becomes “final” in cases involving an IJ or
BIA order permitting voluntary departure. 460 F.3d at 333-34;
453 F.3d at 159-60. Both courts rejected such an interpreta-
tion as inconsistent with the statutory definition of a final
order of removal found in 8 U.S.C. § 1101(a)(47)(B), which
states that a removal order is final only upon the earlier of (i)
a BIA determination affirming the order or (ii) the expiration
of the deadline to seek the BIA’s review of the order. 460
F.3d at 334; 453 F.3d at 160. As a result, the courts in Thapa
20038 CCAYHUARI OCAMPO v. HOLDER
and Obale declined to enforce 8 C.F.R. § 1241.1(f). 460 F.3d
at 334; 453 F.3d at 160.
[5] Although the decisions in Thapa and Obale do not
involve the precise issue presented here — whether a removal
order that permits voluntary departure is final upon its issu-
ance or upon expiration of the voluntary departure period for
the purpose of determining the timeliness of a motion to
reopen—we nevertheless agree with our sister circuits that the
statutory definition of finality in 8 U.S.C. § 1101(a)(47) con-
trols and trumps the regulatory definition in 8 C.F.R.
§ 1241.1(f). See Chevron, 467 U.S. at 843 n.9 (stating that
“[t]he judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent”). 8 U.S.C.
§ 1101 defines terms used in the INA and applies to 8 U.S.C.
§ 1229a. See 8 U.S.C. § 1101(a) (defining terms “[a]s used in
this chapter,” which includes 8 U.S.C. § 1229a). It therefore
applies to 8 U.S.C. § 1229a(c)(7)(C)(i), which sets forth the
requirement that a motion to reopen be filed within 90 days
of a “final administrative order of removal.”
[6] 8 U.S.C. § 1101(a)(47) defines “order of deportation”
and when such orders become final. In Singh v. Gonzales, the
court made clear that this definition also applies to an “order
of removal.” 499 F.3d 969, 979 (9th Cir. 2007). Accord
Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.
2004) (stating that “[t]he Government concedes that 8 U.S.C.
§ 1101(a)(47)(A), which defines ‘order of deportation,’ now
applies to orders of removal as well”), overruled on other
grounds by Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007)
(en banc). 8 U.S.C. § 1101(a)(47)(B) mandates that an order
of removal “shall become final upon the earlier of — (i) a
determination by the Board of Immigration Appeals affirming
such order; or (ii) the expiration of the period in which the
alien is permitted to seek review of such order by the Board
of Immigration Appeals.” The statute is clear and unambigu-
ous that removal orders become final only in these two cir-
CCAYHUARI OCAMPO v. HOLDER 20039
cumstances, so there is no need to resort to 8 C.F.R.
§ 1241.1(f) for clarification. Furthermore, we previously
stated that “[a] regulation may not serve to amend a statute,
nor add to the statute something which is not there.” Califor-
nia Cosmetology Coal. v. Riley, 110 F.3d 1454, 1460 (9th Cir.
1997) (internal citation and quotation marks omitted). Apply-
ing 8 C.F.R. § 1241.1(f)’s provision regarding overstay of the
voluntary departure period would violate this precept by
effectively amending 8 U.S.C. § 1101(a)(47)(B) to afford an
additional circumstance when removal orders become final
that is not expressed in the statute.
Our holding that the definition in 8 U.S.C. § 1101(a)(47)
governs when a removal order becomes final is consistent
with the court’s prior decision in Alali-Amin v. Mukasey, 523
F.3d 1039 (9th Cir. 2008). The petitioner in Alali-Amin
advanced a similar argument that his motion to reopen was
improperly denied as untimely because no “final” order of
removal had been entered. Id. at 1041. In Alali-Amin, the IJ
ordered the petitioner’s deportation but then deferred removal
pursuant to the CAT. Id. Like Ccayhuari, the petitioner in
Alali-Amin moved to reopen his removal proceeding so he
could seek an adjustment of status after marrying a United
States citizen. Id. The petitioner in Alali-Amin also asserted
that his motion to reopen was timely and that no “final”
removal order was ever entered because the IJ deferred his
removal. Id. The IJ denied the motion to reopen as untimely
and the BIA affirmed that decision. Id. On review, the court
rejected the petitioner’s argument that no final removal order
had ever issued and concluded that, pursuant to 8 U.S.C.
§ 1101(a)(47), “[p]etitioner’s argument [was] foreclosed by
the statutory definition of an ‘order of deportation’ and the
accompanying provision regarding the finality of such an
order.” Id.
Finally, during oral arguments Ccayhuari cited Diouf v.
Mukasey to support the proposition that 8 C.F.R. § 1241.1(f)
defines the finality of removal orders so any other conclusion
20040 CCAYHUARI OCAMPO v. HOLDER
today would be incompatible. 542 F.3d 1222 (9th Cir. 2008).
To the contrary, Diouf is easily distinguished. In Diouf, the
court reviewed an alien’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 based on the length of his deten-
tion pending deportation. 542 F.3d at 1224-25. The Diouf
court stated, “Because the IJ issued an alternate order of
removal in connection with the grant of voluntary departure,
and Diouf did not timely appeal to the BIA, Diouf’s order of
removal became administratively final ‘upon overstay of the
voluntary departure period.’ ” Id. at 1229. The court engaged
in this analysis solely to determine whether the defendant was
being detained in accordance with 8 U.S.C. §§ 1226 or 1231,
both of which address, among other things, when an alien
may be detained or physically removed from the United
States, which obviously would not occur until after the volun-
tary departure period expired. Id. Consequently, the court’s
analysis in Diouf is not relevant to whether a removal order
is “final” for the purpose of determining whether a motion to
reopen was timely. Furthermore, in Diouf the defendant had
overstayed his voluntary departure period and failed to timely
appeal the IJ’s removal order to the BIA, so there would have
been no question whether his removal order was “final”—
regardless of whether 8 C.F.R. § 1241.1(f) or 8 U.S.C.
§ 1101(a)(47) applied. Because timeliness was not at issue in
Diouf, and the court was not confronted with the question of
whether 8 C.F.R. § 1241.1(f) conflicted in any way with the
statutory definition of finality found in 8 U.S.C. 1101(a)(47),
that decision does not compel a result different from the one
we reach today.
IV
[7] For the foregoing reasons, we hold that the BIA did not
err by denying as untimely Ccayhuari’s petition to reopen his
removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(i) requires
that a motion to reopen be filed within 90 days of a final order
of removal. 8 U.S.C. § 1101(a)(47)(B) mandates that an order
of removal becomes final upon the earlier of (i) a BIA deter-
CCAYHUARI OCAMPO v. HOLDER 20041
mination affirming the order or (ii) the expiration of the dead-
line to seek the BIA’s review of the order. Accordingly,
Ccayhuari should have filed his motion to reopen within 90
days of the BIA’s November 12, 2002, order summarily
affirming the IJ’s determination that Ccayhuari was remov-
able and ordering his removal if he failed to voluntarily depart
within 30 days of the date of the order. Because Ccayhuari
filed his motion to reopen on February 17, 2006, nearly four
years after the order of removal became final, the BIA cor-
rectly determined that it was untimely.
PETITION FOR REVIEW DENIED.