United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-60159
(Summary Calendar)
ONKAR SINGH,
Petitioner,
versus
ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,
Respondent.
--------------------------
Petitions for Review of Orders of the
Board of Immigration Appeals
--------------------
Before JONES, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
In these consolidated cases, Petitioner Onkar Singh petitions
for review of two decisions of the Board of Immigration Appeals
(“the Board”): (1) the Board’s denial of Singh’s motion to reopen
his removal proceedings because of that motion’s untimeliness; and
(2) the Board’s later denial of Singh’s motion to reconsider its
initial denial of his untimely motion to reopen. As we conclude
that the Board did not abuse its discretion in rejecting Singh’s
two motions, we deny Singh’s petitions for review.
I. FACTS AND PROCEEDINGS
Singh, a citizen of India, entered the United States without
inspection on May 13, 2000. That same day, the Immigration and
Naturalization Service (“INS”) served Singh with a Notice to
Appear, charging him with being removable under § 212(a)(6)(A)(i)
of the Immigration and Naturalization Act (“INA”) as “[a]n alien
present in the United States without being admitted or paroled, or
who arrive[d] in the United States at any time or place other than
as designated by the Attorney General.”1 Singh and his counsel
appeared before the Immigration Judge (“IJ”) in Dallas, Texas, for
an initial hearing on August 15, 2000. At that hearing, Singh
admitted the factual allegations contained in the Notice to Appear,
admitted his removability as a matter of law, and stated his
intention to seek asylum and withholding of removal. The IJ
scheduled Singh’s removal hearing for November 20, 2000. Singh
failed to appear at the November 20th hearing, so in absentia the
IJ ordered Singh’s removal.
On January 21, 2001, Singh timely filed a motion with the IJ
to reopen his removal proceedings and have the in absentia removal
order rescinded. The IJ denied his motion, and Singh appealed to
the Board. On November 21, 2001, the Board dismissed Singh’s
appeal, upholding the IJ’s denial of Singh’s motion to reopen.
1
8 U.S.C. § 1182(a)(6)(A)(i).
2
Nothing transpired in this matter for almost three years,
when, on November 16 of 2004, Singh filed a “Motion to Vacate In
Absentia Order and Reopen Proceedings.” The Board denied this
motion as untimely on February 4, 2005. It reasoned that under its
regulations,2 “a motion to reopen in any case previously the
subject of a final decision by the Board must be filed no later
than 90 days after the date of the decision.” Singh then
petitioned this court for review of the Board’s denial of his
motion to reopen.3
After petitioning us for review, Singh returned to the Board
on March 4, 2005, with a motion for it to reconsider its denial of
his motion to reopen. Singh contended that his 2004 motion to
reopen was not subject to the general 90-day time limit of 8 U.S.C.
§ 1229a(c)(6)(C)(i) and 8 C.F.R. § 1003.2(c)(2). Rather, according
to Singh, 8 C.F.R. § 1003.23(b)(4)(ii) and 8 U.S.C. §
1229a(b)(5)(C) governed the timeliness of his motion to reopen.4
Yet again, the Board rejected Singh’s argument and denied his
motion to reconsider. The Board reasoned that, as to the motion to
reopen and rescind a removal order entered in absentia authorized
by 8 U.S.C. § 1229a(b)(5)(C) and 8 C.F.R. § 1003.23(b)(4)(ii), an
2
See 8 C.F.R. § 1003.2(c)(2).
3
That petition is the subject of case number 05-60159.
4
As we explain more fully below, these provisions establish
more generous time limits in which aliens may file motions to
reopen and rescind removal orders that were entered in absentia.
3
alien may file only with the IJ. The Board thus construed Singh’s
2004 motion to reopen not as a motion to reopen and rescind the in
absentia removal order entered against Singh by the IJ in 2001, but
as a motion to reopen the Board’s dismissal of Singh’s appeal from
the IJ’s denial of Singh’s January 21, 2001, motion to reopen and
rescind the in absentia removal order. Such a motion to reopen is
subject to the 90-day time limit contained in 8 U.S.C. §
1229a(c)(6)(C)(I) and 8 C.F.R. § 1003.2(c)(2). Accordingly, the
Board denied Singh’s motion to reconsider. Singh then filed a
second petition for review with this court.5
II. ANALYSIS
A. Standard of Review
We review the Board’s denial of both a motion to reopen and a
motion for reconsideration “under a highly deferential abuse-of-
discretion standard.”6 “[S]o long as [the Board’s decision] is not
capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach,” we must
affirm the Board’s decision.7 Our review of the Board’s legal
5
Singh’s second petition for review is the subject of
consolidated case number 05-60345.
6
Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005); see 8
C.F.R. § 1003.2(a) (“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.”).
7
Zhao, 404 F.3d at 304.
4
conclusions is less obsequious, though: We review legal conclusions
de novo unless a conclusion embodies the Board’s interpretation of
an ambiguous provision of a statute that it administers8; a
conclusion of the latter type is entitled to the deference
prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council.9 Similar deference is owed to the Board’s interpretations
of its own regulations.10
B. Discussion
1. Motions to Reopen Distinguished From Motions to
Reconsider Removal Decisions
The INA affords an alien who has been adjudicated to be
removable with the statutory right to file two different types of
motions aimed at having an adverse decision overturned: (1) a
motion to reopen his proceedings,11 and (2) a motion to reconsider
the removal decision.12 Substantively, a motion to reopen a removal
8
Ruiz-Romero v. Reno, 205 F.3d 837, 838 (5th Cir. 2000).
9
467 U.S. 837 (1984).
10
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir.
2003) (“Courts grant an agency’s interpretation of its own
regulations considerable legal leeway.”) (internal quotation marks
omitted).
11
8 U.S.C. § 1229a(c)(6); id. § 1229a(b)(5); 8 C.F.R.
§ 1003.2(c); id. § 1003.23(b)(3).
12
8 U.S.C. § 1229a(c)(5); 8 C.F.R. § 1003.2(b); 8 C.F.R. §
1003.23(b)(2). On May 11, 2005, Congress amended the INA with the
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302.
Section 101 of the REAL ID Act altered the numbering of the
subsections of 8 U.S.C. § 1229a(c) such that subsections (c)(5)
(motions to reconsider) and (c)(6) (motions to reopen) are now
subsections (c)(6) and (c)(7), respectively. Congress did not make
5
order must “state . . . new facts that will be proven at a hearing
to be held if the motion is granted, and [must] be supported by
affidavits or other evidentiary material.”13 “[O]ne motion to
reopen” is all that the INA permits14; and, generally, that one
motion must be filed “within 90 days of the date of entry of a
final administrative order of removal.”15 This general 90-day time
limit does not apply, though, if, instead of filing a motion to
reopen under 8 U.S.C. § 1229a(c)(6), the alien files a motion to
reopen under 8 U.S.C. § 1229a(b)(5).
Section 1229a(b)(5) sets forth the “[c]onsequences [to an
alien] of [his] failure to appear” for his removal proceedings.16
Under § 1229a(b)(5), an alien who fails to appear for his removal
proceeding (such as Singh) “shall be ordered removed in absentia if
the Service establishes by clear, unequivocal, and convincing
evidence that” the alien received notice of his hearing and that he
is in fact removable.17 In contrast with other non-in absentia
removal orders —— which may be overturned through a motion to
these numbering changes retroactive. As the instant litigation
arose prior to passage of the REAL ID Act, the citations to the INA
in this opinion are to the pre-REAL ID Act version of the statute.
13
8 U.S.C. § 1229a(c)(6)(B).
14
Id. § 1229a(c)(6)(A).
15
Id. § 1229a(c)(6)(C)(I).
16
Id. § 1229a(b)(5).
17
Id. § 1229a(b)(5)(A).
6
reopen filed under 8 U.S.C. § 1229a(c)(6) —— an in absentia removal
order
may be rescinded only——
(i) upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien
demonstrates that the failure to appear was because of
exceptional circumstances . . . , or
(ii) upon a motion to reopen filed at any time if the
alien demonstrates that the alien did not receive notice
[of his removal hearing].18
Such a § 1229(b)(5)(C) motion to reopen is what Singh purported to
file with the Board in 2004. The Board, however, interpreted his
filing as a § 1229(c)(6) motion to reopen.
Motions to reconsider removal decisions are governed by 8
U.S.C. § 1229a(c)(5). An alien is allotted just “one motion to
reconsider.”19 That motion must “specify the errors of law or fact
in the previous order . . . and be supported by pertinent
authority.”20
2. Regulatory Implementation of the INA
On the INA’s statutory foundation, the Attorney General has
constructed an administrative dichotomy that divides the review of
removal orders between two fora: (1) the IJ, who can hear motions
to reopen and motions to reconsider his removal orders21; and (2)
18
Id. § 1229a(b)(5)(C)(i)-(ii) (emphasis added); see also 8
C.F.R. § 1003.23(b)(4)(ii).
19
8 U.S.C. § 1229a(c)(5)(A).
20
Id. § 1229a(c)(5)(C).
21
See 8 C.F.R. § 1003.23.
7
the Board, which hears appeals from orders of IJs, as well as
motions to reopen and to reconsider its own appellate decisions.22
The INA itself, however, does not envision the use of such a
bifurcated review process: The Board is purely an administrative
creation.23 The INA merely establishes the two types of motions to
reopen (a § 1229a(b)(5)(C) motion to reopen an in absentia removal
order and a § 1229a(c)(6) general motion to reopen) and the motion
to reconsider; because the INA does not create the Board, it does
not specify to which adjudicator —— the Board or the IJ —— a
§ 1229a(b)(5)(C) motion to reopen an in absentia removal order
(which is the type of motion Singh purported to file in 2004) must
be presented.
The Board has endeavored to fill this lacuna through its
implementing regulations. The Board’s regulations are not a model
of clarity, however, for the purpose of determining in which forum
(the IJ or the Board) an alien must file a § 1229(b)(5)(C) motion
to reopen an in absentia removal order. For example, 8 C.F.R.
§ 1003.2324 —— titled “Reopening or reconsideration before the
Immigration Court”25 —— is the specific regulatory provision that
addresses the extended time limits within which motions to reopen
22
See id. § 1003.1(b) (appeals); id. § 1003.2 (motions to
reopen and motions to reconsider).
23
See id. § 1003.1.
24
See id. § 1003.23(b)(4)(ii).
25
Id. § 1003.23 (emphasis added).
8
in absentia removal orders may be filed. In parallel, a subsection
of 8 C.F.R. § 1003.2 —— titled “Reopening or reconsideration before
the Board of Immigration Appeals”26 —— also addresses the extended
time limits associated with motions to reopen in absentia removal
orders.27 Ultimately, it is this duplication that gives rise to the
confusion in this case.
The Board cut this Gordian knot by ruling as a matter of law
that under the INA and the Board’s implementing regulations,
motions to reopen in absentia removal orders must be presented to
the IJ, not to the Board.28 It thus concluded that Singh’s 2004
motion to reopen, which he filed with the Board, was a § 1229(c)(6)
motion to reopen the Board’s 2001 denial of Singh’s appeal from the
IJ’s denial of his 2001 § 1229a(b)(5)(C) motion to reopen the in
absentia removal order, not a new § 1229a(b)(5)(C) motion to reopen
the in absentia removal order.
As this is an interpretation of both the INA and the Board’s
own regulations, we must accord deference to the Board’s legal
conclusion. And, as we cannot find the Board’s conclusion to be
unreasonable, we deny Singh’s petitions for review.
26
Id. § 1003.2 (emphasis added).
27
See id. § 1003.2(c)(3).
28
As the Board put it: “Section 240(b)(5)(C) [of the INA, 8
U.S.C. § 1229a(b)(5)(C),] and 8 C.F.R. § 1003.23(b)(4)(ii) concern
in absentia proceedings which were relevant to [Singh]’s motion to
reopen before the Immigration Judge.”
9
3. The Board Reasonably Interpreted the INA and Its
Implementing Regulations
The Board reasonably concluded that under the INA and its
implementing regulations, a § 1229(b)(5)(C) motion to reopen an in
absentia removal order may be filed only with the IJ. First, the
INA makes clear that an in absentia removal “order may be rescinded
only” by filing a motion to reopen the removal proceedings.29 “The
obvious negative implication” of this language is that in
absentia removal orders may not be appealed to the Board.30 To
challenge an in absentia removal order, then, the alien must do
what Singh originally did in this case, viz., file a
§ 1229(b)(5)(C) motion to reopen the in absentia order with the
IJ.31 But by filing the in absentia motion with the IJ, the alien
has exhausted the one class of motions to reopen that the INA
permits.32 For such an alien, therefore, there are no more reopen
29
8 U.S.C. § 1229a(b)(5)(C) (emphasis added).
30
Bakal v. Ashcroft, 56 Fed. Appx. 650, 653 (6th Cir. 2003);
see also 8 C.F.R. § 1240.15 (“[A]n appeal shall lie from a decision
of an immigration judge to the Board of Immigration Appeals, except
that no appeal shall lie from an order of removal entered in
absentia.”) (emphasis added). One can quarrel with whether this
negative implication is so obvious, considering that the INA does
not envision there even being an administrative appeals process for
removal orders. But, under Chevron, such quarreling would not get
us far, as the Board’s interpretation of the INA need not be
compelled by the statute’s language to warrant affirmance by us; it
need only be reasonable. See 467 U.S. at 843-45.
31
The Board may become involved at this point, because if the
IJ denies the motion, then that denial is appealable to the Board.
32
See 8 U.S.C. § 1229a(c)(6)(A) (“An alien may file one motion
to reopen proceedings under this section.”) (emphasis added).
10
motions available for filing; thus an attempted filing of a second
motion to reopen violates the INA. Assuming that it was
permissible for the Attorney General to divide the removal order
review process between two extra-statutory entities,33 it is surely
reasonable for the Board to conclude that a motion to reopen an in
absentia removal order may only be filed with the IJ.
Second, as the Respondent points out in his brief, the
rationale undergirding the giving of a more generous period of time
in which an alien may move to reopen an in absentia removal order
provides no support for giving the alien an extended period of time
in which to file such a motion with the Board. It makes sense to
give an alien who was not notified of his removal hearing or who
was prevented from attending his hearing by exceptional
circumstances more time to seek the reopening of his removal order.
Under the Board’s own regulations, however, it can only hear
motions to reopen in “case[s] in which it has rendered a
decision.”34 This means that by the time the alien’s in absentia
removal order reaches the Board, that alien has already (1) moved
for reopening with the IJ, and (2) appealed the IJ’s denial to the
Board. After all, only in such circumstances would the Board
already have rendered a decision in the alien’s case. At such a
33
Singh has not challenged the legitimacy of the Attorney
General’s decision to create the BIA, so we have no reason to doubt
the permissibility of the Attorney General’s action.
34
8 C.F.R. § 1003.2(a) (emphasis added).
11
late stage in the proceedings, the forgiving rationale behind the
extended time periods for motions to reopen in absentia removal
orders is just not relevant.
These two justifications more than adequately demonstrate the
reasonableness of the Board’s interpretation of the INA and its
implementing regulations. We therefore deny Singh’s two petitions
for review.
III. CONCLUSION
For the foregoing reasons, Singh’s petitions for review are
DENIED.
12