United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1846
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Daniel Rolando Ortega-Marroquin, *
*
Petitioner, *
*
v. *
*
Eric. H. Holder, Jr., Attorney General *
of the United States, * Petition for Review of an
* Order of the Board of
Respondent. * Immigration Appeals.
_____________________ *
*
American Immigration Council; *
National Immigration Project of the *
National Lawyers Guild, *
*
Amici on Behalf of Petitioner. *
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Submitted: February 17, 2011
Filed: May 23, 2011
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Before SMITH, GRUENDER, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Daniel Rolando Ortega-Marroquin (“Ortega”) appeals from a final order of
removal by the Board of Immigration Appeals. He seeks review of the Board’s
decision to reverse itself by granting the government’s motion for reconsideration and
vacating the Board’s prior decision (that had allowed Ortega to reopen his case).
Having jurisdiction under 8 U.S.C. § 1252(a)(1), this court remands for further
proceedings.
I.
Ortega, a native of Guatemala, illegally entered the United States in April 1992.
In June, he formally requested asylum in the United States (claiming past persecution
by gangs of guerillas), which was denied. In February 2006, the Department of
Homeland Security issued a “Notice to Appear” in immigration court, charging him
with illegally entering the United States. In the removal proceedings, Ortega renewed
his asylum application and in 2007 requested both withholding and cancellation of
removal with the aid of his attorney, Subhash Chandra.
At a hearing in February 2009, Ortega was represented by Robert Wees, a
member of Chandra’s firm. With permission of the immigration judge, Wees filed an
amended cancellation-of-removal application (changing the addresses and updating
other information from the application filed by Chandra). The immigration judge
issued an oral decision denying Ortega’s claims for asylum, withholding of removal,
and cancellation of removal. The immigration judge found that Ortega had satisfied
the continuous-physical-presence and good-moral-character requirements for
cancellation, had committed no disqualifying crime, but failed to demonstrate that his
qualifying relatives (his two U.S.-citizen children) would suffer exceptional and
extremely unusual hardship as a result of his removal. See Immigration and
Naturalization Act § 240A(b); 8 U.S.C. § 1229b(b). The immigration judge found
that Ortega’s children had no significant medical issues. The immigration judge
granted Ortega 60 days to depart the United States voluntarily in lieu of removal.
Ortega appealed to the Board. On June 22, 2009, it affirmed the immigration
judge’s decision in all respects, again granting Ortega 60 days to depart voluntarily.
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On July 23, 2009, Ortega filed a petition for review of the Board’s decision with this
court (No. 09-2740). He filed pro se and in forma pauperis with the help of a
“notario.”1 In the petition, Ortega argued that his former counsel Chandra was
ineffective because Chandra knew but omitted in the cancellation-of-removal
application that Ortega’s children suffer serious medical conditions, and in fact told
Ortega that unless his children were on their death beds, medical evidence was not
worth submitting. Ortega claims Chandra’s error was perpetuated by Wees at the
removal hearing and in the appeal to the Board. According to Ortega, his two U.S.-
citizen children suffer from various conditions: lupus, a heart defect, a potentially
cancerous eye tumor, recurrent bronchitis and asthma attacks, and severe clinical
depression.
In August 2009, this court denied a stay of removal. See Ortega-Marroquin
v. Holder, No. 09-2740 (8th Cir. Aug. 20, 2009) (Order) (ECF/PACER electronic
docket). While Ortega’s petition for review of his asylum and withholding-of-
removal claims was pending with this court, Homeland Security took Ortega into
custody on October 28, 2009. While still in the United States, he filed an “emergency
motion” for a stay of removal with this court, which was denied on November 6,
2009. See Ortega-Marroquin v. Holder, No. 09-2740 (8th Cir. Nov. 6, 2009) (Order)
(ECF/PACER electronic docket).
1
In some countries, the position of “Notario Publico” has greater
responsibilities than an American notary public: a “notario” is a trained legal advisor
responsible for the legality of the content of the document, as opposed to only the
identity of the signer. “Notarios” assist in the incorporation of companies, the buying
and selling of real estate, the drafting of deeds and wills, the creation of mortgages,
and other transactions. In the United States, some notaries (both real and false) call
themselves “notarios” to take advantage of immigrants unaware of the distinction
between “notario publico” and “notary public.”
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On November 23, 2009, now aided by his current counsel, Ortega filed an
(untimely) motion to reopen his case with the Board, asking it to stay his removal
pending adjudication of the motion. Ortega argued that his case should be reopened
because of the ineffectiveness of prior counsel, providing new documentation of his
children’s health issues. Ortega acknowledged that under 8 U.S.C. §
1229a(c)(7)(C)(i), he should have filed the motion to reopen within 90 days after the
Board’s order dismissing his appeal (June 22, 2009). However, Ortega argued that his
motion to reopen was timely under the doctrine of equitable tolling, because he relied
on his “notario,” whose advice led him to file a pro se petition for review (on the
ineffectiveness grounds) within the 90-day time limit in this court instead of with the
Board. Further, once he realized his mistake, he hired current counsel and promptly
filed the motion to reopen with the Board.
On November 24 (the next day), the Board denied Ortega’s request for a stay
of removal, finding little likelihood it would grant the motion to reopen. On
December 17, Homeland Security removed Ortega to Guatemala.
Unaware that Ortega had been removed, the Board, on February 1, 2010,
exercised its sua sponte reopening authority and granted Ortega’s untimely motion to
reopen his case. The Board said that “given all the circumstances presented, including
the unrebutted representations that former counsel told the respondent he need not
bother presenting evidence regarding his children’s medical conditions, the particular
situation of this family, and the lack of opposition from the Department of Homeland
Security, we will grant this motion under our sua sponte authority.” While noting that
Ortega sought to equitably toll the filing deadline for a motion to reopen, the Board
did not rule on this issue; the basis of the grant was the Board’s sua sponte authority.
On February 12, the government moved for reconsideration, informing the
Board that Ortega had been removed in December, before the Board reopened his
proceedings. The government argued that because Ortega was no longer in the United
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States, the Board could not rule on his motion to reopen, due to the departure bar in
the immigration regulations, 8 C.F.R. § 1003.2(d): “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.”
On March 19, the Board granted the government’s motion, vacated its prior
decision to sua sponte reopen Ortega’s case, and denied his motion to reopen. The
Board determined: “As the respondent was removed subsequent to filing the motion
to reopen, his departure resulted in the withdrawal of that motion.” The Board
rejected as non-binding authority in this circuit Ortega’s invocation of a Ninth Circuit
case holding that involuntary removal by the government does not withdraw an alien’s
pending motion to reopen. See Martinez Coyt v. Holder, 593 F.3d 902, 907 (9th Cir.
2010). The Board followed its precedent, Matter of Armendarez-Mendez, 24 I&N
Dec. 646 (BIA 2008), upholding the departure bar regulation and its lack of
jurisdiction over motions after an alien’s departure.
In April 2010, Ortega filed this petition for review of the Board’s March
decision. Still pending in this court was his first petition (No. 09-2740), challenging
the merits of the Board’s denial of his applications for asylum and withholding of
removal. Ortega did not move to consolidate the two petitions. In May, this court
denied Ortega’s first petition on the merits. See Marroquin v. Holder, 373 Fed.
App’x 642 (8th Cir. 2010) (per curiam). This appeal challenges only the Board’s
decision to rescind its sua sponte grant of Ortega’s untimely motion to reopen, on the
basis of the departure bar.
II.
Ortega challenges the validity of the departure bar regulation. This court
reviews questions of law de novo and accords “substantial deference” to the Board’s
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interpretation of immigration law and agency regulations. Bernal-Rendon v.
Gonzales, 419 F.3d 877, 880 (8th Cir. 2005). This court reviews constitutional
challenges to immigration proceedings de novo. Habchy v. Gonzales, 471 F.3d 858,
862 (8th Cir. 2006); Shoaira v. Ashcroft, 377 F.3d 837, 842 (8th Cir. 2004).
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984),
governs challenges to the validity of an agency regulation, including resolution of
ambiguities in the immigration statutes. INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999). First, the court must determine if Congress has made clear its intent by
examining the plain meaning of the statute and, if necessary, employing traditional
rules of statutory construction. If Congress’s intent is clear, it governs—the courts,
as well as the agency, “must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842-43. Second, if congressional intent cannot be
discerned, a court must consider whether the agency interpretation is a reasonable and
permissible construction of the statute. Id. Last, “lingering ambiguities in deportation
statutes” must be construed “in favor of the alien.” INS v. St. Cyr, 533 U.S. 289, 320
(2001) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
A motion to reopen asks the Board to change its decision “in light of newly
discovered evidence or a change in circumstances since the hearing.” Dada v.
Mukasey, 554 U.S. 1, 12 (2008). Originally a judicial creation, it was later codified
in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). Id. Under current law, “[a]n alien may file one motion to reopen
proceedings,” which “shall be filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. §§ 1229a(c)(7)(A) & (C)(i), discussed in
Dada, 554 U.S. at 12-15. There are two exceptions to the 90-day deadline: 1) an
asylum-based motion that claims changed country conditions; and 2) where the alien
is a battered spouse, child of a battered spouse, or parent of a battered child. See 8
U.S.C. § 1229a(c)(7)(C)(ii) & (iv).
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The departure bar regulation of the Department of Justice provides, “Any
departure from the United States, including the deportation or removal of a person
who is the subject of . . . 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). Ortega argues that this regulation is invalid because it conflicts
with the statutory right that “[a]n alien may file one motion to reopen proceedings.”
See 8 U.S.C. § 1229a(c)(7)(A). Ortega contends that the statute does not differentiate
between an alien in the United States and one outside the United States, so it permits
either to file (and have decided) one motion to reopen proceedings. The Board, Ortega
says, should not interpret the departure bar as limiting its jurisdiction over motions to
reopen, as an agency cannot contract its own jurisdiction through regulation or
decision. Compare Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008)
(holding that the Board is stripped of jurisdiction by operation of the departure bar
regulation), with Union Pacific R.R. Co. v. Brotherhood of Locomotive Engineers,
130 S.Ct. 584, 590-91 & 596-98 (2009) (holding that administrative agencies directed
by Congress to adjudicate particular controversies may not contract their own
jurisdiction through regulation or decision), Pruidze v. Holder, 632 F.3d 234, 237-40
(6th Cir. 2011) (holding that the Board does not lack jurisdiction to consider an alien’s
motion to reopen once the alien is no longer in the United States), and
Marin-Rodriguez v. Holder, 612 F.3d 591, 593-94 (7th Cir. 2010) (holding the
departure bar invalid because the Board cannot limit its jurisdiction by regulation).
Regardless, Ortega argues that under principles of fundamental fairness and
procedural due process, the departure bar should not be applied to him, as his pending
motion to reopen was deemed withdrawn because the government forcibly and
involuntarily removed him from the United States.
According to the government, whether the one-motion-to-reopen statute
supplants the departure bar regulation is not before this court, as Ortega moved to
reopen long after the 90-day statutory deadline expired. Because he failed to satisfy
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the explicit statutory deadline, the government reasons that Ortega’s untimely motion
does not fall within the motion-to-reopen statute’s reach.
The Board originally granted Ortega’s motion to reopen under its sua sponte
authority. See 8 C.F.R. §§ 1003.2(a) (“The Board may at any time reopen or
reconsider on its own motion any case in which it has rendered a decision.”). This sua
sponte reopening authority, like the departure bar, is authorized only by regulations
promulgated by the Attorney General, not by a statute. See 8 U.S.C. § 1229a(c).
Applying the departure bar to preclude the Board’s sua sponte reopening authority
does not clearly and unambiguously conflict with the text of the statute, as no
statutory provision authorizes an alien to file a motion to reopen outside the time
limits specified (except for the two exceptions inapplicable here). In short, only the
regulations permit the Board to grant an untimely motion using its sua sponte
authority, but that authority is itself limited by the departure bar. See Zhang v.
Holder, 617 F.3d 650, 665 (2nd Cir. 2010) (holding that the Board’s interpretation of
the departure bar as a limitation on the Board’s sua sponte authority was reasonable
under Chevron).
To fall within the scope of the motion-to-reopen statute, Ortega must show that
the filing deadline is subject to equitable tolling, thereby excusing its lateness. The
90-day deadline for filing motions to reopen is subject to equitable tolling. See
Hernandez-Moran v. Gonzales, 408 F.3d 496, 499-500 (8th Cir. 2005). The
government claims Ortega waived the issue of equitable tolling by not raising it in his
opening brief. In fact, Ortega raised the issue of equitable tolling due to ineffective
assistance of counsel in his opening brief, but did not brief the merits of the equitable-
tolling and ineffective-assistance-of-counsel arguments because the Board decision
here did not decide whether the doctrine of equitable tolling applied to his case. See
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing
with a determination or judgment which an administrative agency alone is authorized
to make, must judge the propriety of such action solely by the grounds invoked by the
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agency. If those grounds are inadequate or improper, the court is powerless to affirm
the administrative action by substituting what it considers to be a more adequate or
proper basis.”); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943) (“The grounds
upon which an administrative order must be judged are those upon which the record
discloses that its action was based.”); Mouawad v. Gonzales, 485 F.3d 405, 413-14
(8th Cir. 2007) (citing the Chenery principle in remanding the case to the Board to
consider arguments that were never explicitly considered).
Had the Board addressed Ortega’s equitable-tolling claim, tolled the 90-day
deadline, and then deemed the motion withdrawn by operation of the departure bar,
the validity of the departure bar would be before this court. However, the Board did
not address this issue, so whether the departure bar conflicts with 8 U.S.C. §
1229a(c)(7) is a hypothetical question not properly before this court. See KCCP Trust
v. City of North Kansas City, 432 F.3d 897, 899 (8th Cir. 2005) (“Article III limits the
federal courts to deciding ‘Cases’ and ‘Controversies’ and thus prohibits us from
issuing advisory opinions.”); Pub. Water Supply Dist. No. 8 v. City of Kearney, 401
F.3d 930, 932 (8th Cir. 2005) (“One kind of advisory opinion is an opinion advising
what the law would be upon a hypothetical state of facts.”) (internal quotation marks
and citation omitted).
Under these circumstances, this court remands this case to the Board to consider
Ortega’s equitable-tolling claim. See Gonzales v. Thomas, 547 U.S. 183, 187 (2006)
(per curiam) (“A court of appeals is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own conclusions based on such
an inquiry. . . . Rather, the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.”) (internal quotation marks
and citation omitted); INS v. Orlando Ventura, 537 U.S. 12, 16-18 (2002) (per
curiam) (holding that the court of appeals should have remanded an asylum issue to
the Board instead of considering it de novo, where the Board did not consider the
government’s alternative argument in regard to the asylum application: “Generally
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speaking, a court of appeals should remand a case to an agency for decision of a
matter that statutes place primarily in agency hands.”). On remand, the Board should
determine whether Ortega’s motion to reopen was timely filed pursuant to 8 U.S.C.
§ 1229a(c)(7)(C) under the doctrine of equitable tolling, given his claim of ineffective
assistance of counsel, and if so, rule on the motion, whether on the basis of the
departure bar or other grounds.
* * * * * * *
The petition is granted. The Board’s order of March 19, 2010, is vacated, and
the matter remanded for further proceedings consistent with this opinion.
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