PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TUNBOSUN OLAWALE WILLIAM,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General,
Respondent. No. 06-1284
AMERICAN IMMIGRATION LAW
FOUNDATION,
Amicus Supporting Petitioner.
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A73-561-811)
Argued: March 15, 2007
Decided: September 6, 2007
Before WILLIAMS, Chief Judge, and MICHAEL
and SHEDD, Circuit Judges.
Petition for review granted; order vacated by published opinion.
Judge Shedd wrote the majority opinion, in which Judge Michael
joined. Chief Judge Williams wrote a dissenting opinion.
COUNSEL
ARGUED: Craig D. Margolis, VINSON & ELKINS, Washington,
D.C., for Petitioner. Daniel Eric Goldman, UNITED STATES
2 WILLIAM v. GONZALES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Tirzah S. Fitzkee,
Amy L. Riella, VINSON & ELKINS, Washington, D.C., for Peti-
tioner. Peter D. Keisler, Assistant Attorney General, Civil Division,
M. Jocelyn Lopez Wright, Assistant Director, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. Trina Realmuto, Beth Werlin,
AMERICAN IMMIGRATION LAW FOUNDATION, Washington,
D.C., for Amicus Supporting Petitioner.
OPINION
SHEDD, Circuit Judge:
Tunbosun Olawale William petitions for review of an order of the
Board of Immigration Appeals ("BIA") holding that it could not con-
sider his motion to reopen immigration proceedings which was filed
after he had been removed from the United States. In reaching this
conclusion, the BIA relied on 8 C.F.R. § 1003.2(d). Because we con-
clude that this regulation conflicts with clear statutory language and
is therefore invalid, we grant the petition for review, vacate the order
of the BIA, and remand for further proceedings.
I
Since 1962, aliens involved in immigration proceedings have been
able to file motions to reopen those proceedings before the BIA. Ini-
tially, motions to reopen were creatures solely of regulation. Medina-
Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004) ("Until . . .
1996, [t]here [was] no statutory provision for reopening of a deporta-
tion proceeding, and the authority for such motions derive[d] solely
from regulations promulgated by the Attorney General.") (internal
punctuation omitted) (alteration in original). As part of this regulatory
scheme, 8 C.F.R. § 3.2 (predecessor to 8 C.F.R. § 1003.2(d)) pro-
vided:
[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
WILLIAM v. GONZALES 3
deportation proceedings subsequent to his departure from
the United States. Any departure from the United States of
a person who is the subject of deportation proceedings
occurring after the making of a motion to reopen or a
motion to reconsider shall constitute a withdrawal of such
motion.
This regulation largely paralleled a statutory provision, 8 U.S.C.
§ 1105a(c) (1962), which barred the federal courts from exercising
jurisdiction over immigration orders when the alien had departed the
country.
In 1996, Congress made major changes to immigration law through
the enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009.
Among other things, IIRIRA (1) repealed the statutory bar to judicial
review of deportation orders when the alien had departed the country
and (2) codified and enacted procedures governing the filing of
motions to reopen. Specifically, in codifying motions to reopen, Con-
gress provided: "An alien may file one motion to reopen proceedings
under this section. . . ." 8 U.S.C. § 1229a(c)(7)(A) (originally desig-
nated 8 U.S.C. § 1229a(c)(6)(A)). Congress then proceeded to detail
the required content of a motion to reopen, the deadline for filing the
motion, and exceptions from both the numerical limit of one motion
and the time period for filing the motion. § 1229a(c)(7)(A)-(C).
After Congress’ codification of the motion to reopen in IIRIRA,
the Attorney General repromulgated, in essentially the same form, the
regulation imposing the bar to BIA review of motions to reopen when
an alien has departed the country:
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 depar-
ture from the United States, including the deportation or
removal of a person who is the subject of exclusion, depor-
tation, or removal proceedings, occurring after the filing of
a motion to reopen or a motion to reconsider, shall consti-
tute a withdrawal of such motion.
4 WILLIAM v. GONZALES
8 C.F.R. § 3.2 (later redesignated 8 C.F.R. § 1003.2(d)); see 62 Fed.
Reg. 10312, 10321, 10331 (Mar. 6, 1997), 68 Fed. Reg. 9824 (Feb.
28, 2003). The validity of this regulation and its application to Wil-
liam are at issue in this case.
II
William is a native and citizen of Nigeria who became a permanent
legal resident of the United States in 1996. In June 1997, William
pled guilty to receipt of a stolen credit card in violation of Maryland
law. William was sentenced to eighteen months imprisonment, with
nine months suspended, and three years probation.
On November 28, 1997, the Immigration and Naturalization Ser-
vice ("INS") charged William with being removable as an aggravated
felon for committing an offense involving fraud or deceit in which the
loss to the victim exceeds $10,000. See 8 U.S.C. §§ 1101(a)(43)(M),
1227(a)(2)(A)(iii). Subsequently, the INS also charged William with
being removable as having committed a crime of moral turpitude. See
8 U.S.C. § 1227(a)(2)(A)(i). During subsequent proceedings, an
immigration judge found William removable as having been con-
victed of a crime of moral turpitude and found him ineligible for
relief. The BIA affirmed this decision, and William did not seek fur-
ther review in this court. William then filed with the BIA a motion
to reconsider, arguing that he had received limited post-conviction
relief in the form of a reduction of sentence. The BIA denied this
motion and, again, William did not pursue further review.
On July 11, 2005, William was removed from the United States.
Shortly thereafter, William filed a petition for a writ of coram nobis
in state court seeking to vacate his Maryland conviction. The state
court granted the writ and vacated William’s conviction in October
2005. On December 21, 2005, William filed a motion to reopen immi-
gration proceedings before the BIA in which he asserted that the
exceptional circumstances of his case warranted reconsideration of his
removal. The BIA refused to consider William’s motion to reopen —
thereby effectively denying it on procedural grounds — reasoning
that William had already been removed from the United States and,
in those circumstances, 8 C.F.R. § 1003.2(d) bars the filing of a
motion to reopen. This petition for review followed.
WILLIAM v. GONZALES 5
III
William argues that 8 C.F.R. § 1003.2(d), containing the post-
departure bar on motions to reopen, is invalid because it conflicts with
clear statutory language. Where the validity of an agency’s regulation
is called into question, we employ the familiar analysis prescribed by
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Accordingly, we first consider whether "Congress
has directly spoken to the precise question" at issue. Id. at 842. If
Congress has so spoken, our inquiry is at an end, for we, as well as
the agency, "must give effect to the unambiguously expressed intent
of Congress." Id. at 843. However, if Congress has not addressed the
precise question at issue, we must determine whether the agency’s
interpretation of the statute in question, as embodied in its regulation,
is reasonable and therefore entitled to deference. Id.
The statutory provision in question is 8 U.S.C. § 1229a(c)(7)(A),
which provides that "[a]n alien may file one motion to reopen pro-
ceedings under this section. . . ." William contends that this statute
does not differentiate between an alien who is in the United States and
one who is abroad and that it permits either to file one motion to
reopen proceedings. On the other hand, the Government maintains
that § 1229a(c)(7)(A) is silent with respect to post-departure motions
to reopen in that it does not specifically address them. The Govern-
ment therefore reads the statute as leaving a gap which it may fill with
a regulation restricting the availability of motions to reopen to those
aliens who remain in the United States.1
1
The Government cites Pena-Muriel v. Gonzales, 489 F.3d 438 (1st
Cir. 2007), recently decided by the First Circuit, in support of its argu-
ment in this case. Pena-Muriel, however, is of limited relevance here
because the First Circuit did not address the primary argument made by
William: i.e. that the regulation barring post-departure motions to reopen
conflicts with the clear language of § 1229a(c)(7)(A). Instead, the First
Circuit, and apparently Pena-Muriel, focused on whether Congress’
repeal of § 1105a(c) removed the statutory basis for the regulatory bar on
post-departure motions to reopen. See Pena-Muriel, 489 F.3d at 441
("Pena-Muriel argues that the deletion of § 1105a(c) invalidated [the reg-
ulatory bar on post-departure motions to reopen]"); id. ("The parties
point to no statutory language that explicitly addresses the issue [of
whether Congress intended to repeal the regulatory bar]."). We thus
decide this case on an issue which is separate and distinct from that con-
sidered by the First Circuit.
6 WILLIAM v. GONZALES
We find that § 1229a(c)(7)(A) unambiguously provides an alien
with the right to file one motion to reopen, regardless of whether he
is within or without the country. This is so because, in providing that
"an alien may file," the statute does not distinguish between those
aliens abroad and those within the country — both fall within the
class denominated by the words "an alien." Because the statute
sweeps broadly in this reference to "an alien," it need be no more spe-
cific to encompass within its terms those aliens who are abroad. Thus,
the Government’s view that Congress was silent as to the ability of
aliens outside the United States to file motions to reopen is foreclosed
by the text of the statute.2 The statutory language does speak to the
filing of motions to reopen by aliens outside the country; it does so
because they are a subset of the group (i.e. "alien[s]") which it vests
with the right to file these motions. Accordingly, the Government’s
view of § 1229a(c)(7)(A) simply does not comport with its text and
cannot be accommodated absent a rewriting of its terms.3
The overall structure of § 1229a reenforces our reading of
§ 1229a(c)(7)(A) in two ways. First, the fact that Congress provided
for specific limitations on the right to file a motion to reopen bolsters
the conclusion that § 1229a(c)(7)(A) cannot be read to except from its
terms those aliens who have departed the country. See United States
v. Johnson, 529 U.S. 53, 58 (2000) ("When Congress provides excep-
tions in a statute, it does not follow that courts have authority to create
others. The proper inference . . . is that Congress considered the issue
2
The clarity and breadth of the statutory language likewise overcome
the Government’s argument that, in enacting § 1229a(c)(7)(A), Congress
codified the right to file a motion to reopen while leaving the regulatory
post-departure bar in place by not expressly repealing it. Congress unam-
biguously addressed, and at least implicitly repealed, the regulatory post-
departure bar by granting "an alien" the right to file one motion to
reopen.
3
The Government’s position also lacks contextual support, for one of
IIRIRA’s aims is to expedite the removal of aliens from the country
while permitting them to continue to seek review of their removal orders
from abroad. See Ngarurih v. Ashcroft, 371 F.3d 182, 192 (4th Cir. 2002)
(noting that departure from the country no longer "purport[s] to cut off
appellate jurisdiction"); IIRIRA § 306(b) (repealing former statutory bar
to post-departure judicial review).
WILLIAM v. GONZALES 7
of exceptions and, in the end, limited the statute to the ones set
forth."). Second, and more importantly, in detailing the time limit for
a motion to reopen, Congress provided that the usual 90-day limit
does not apply where an alien who is applying for relief from removal
as a victim of domestic violence "is physically present in the United
States at the time of filing the motion." 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(IV) (emphasis added). Of course, Congress did
not include this requirement of physical presence in § 1229a(c)(7)(A),
which deals with motions to reopen in general and which is applicable
here. This being the case, we must draw a "negative inference" from
Congress’ exclusion of the physical presence requirement from the
statutory section under consideration, Hamdan v. Rumsfeld, 126 S.Ct.
2749, 2765 (2006), because where Congress "includes particular lan-
guage in one section of a statute but omits it in another section of the
same Act . . . it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion," Clay v. United
States, 537 U.S. 522, 528 (2003). Moreover, we can go beyond sim-
ply drawing an inference regarding Congress’ intent in this case, for
a finding that physical presence in the United States is required before
any motion to reopen may be filed would render the physical presence
requirement expressly written into subsection (c)(7)(C)(iv)(IV) mere
surplusage. See, e.g., TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001)
("It is a cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or insignifi-
cant.") (internal punctuation omitted). In sum, Congress knew how to
include a requirement of physical presence when it wished to do so,
as it did in § 1229a(c)(7)(C)(iv)(IV). That it did not do so in the gen-
eral provisions of § 1229a(c)(7)(A) leads us to conclude that Congress
did not make presence in the United States a prerequisite to filing a
motion to reopen.
For these reasons, § 1229a(c)(7)(A) clearly and unambiguously
grants an alien the right to file one motion to reopen, regardless of
whether he is present in the United States when the motion is filed.
Therefore, our inquiry into Congress’ intent is at an end, for "[i]f the
language is plain and the statutory scheme is coherent and consistent,
we need not inquire further." In re Coleman, 426 F.3d 719, 725 (4th
8 WILLIAM v. GONZALES
Cir. 2005) (internal citation omitted). Our sole function "is to enforce
[the statute] according to its terms." Id. (alteration in original).4
Having set forth the clear meaning of § 1229a(c)(7)(A), we believe
it is evident that 8 C.F.R. § 1003.2(d), containing the post-departure
bar on motions to reopen, conflicts with the statute by restricting the
availability of motions to reopen to those aliens who remain in the
United States. Therefore, we conclude that this regulation lacks
authority and is invalid. Allen v. United States, 173 F.3d 533, 536 (4th
Cir. 1999) ("[W]e must overturn a regulation that clearly conflicts
with the plain text of the statute."). On remand, the BIA cannot rely
on 8 C.F.R. § 1003.2(d) in refusing to consider William’s motion to
reopen.5
4
The test for whether a word or phrase used in a statute is ambiguous
is not whether we can craft a more artful or articulate statute, which we
possibly could do in many cases. Instead, the test is whether the statute’s
text, on its face, is "reasonably susceptible to multiple meanings." Hol-
land v. Big River Minerals Corp., 181 F.3d 597, 603 (4th Cir. 1999).
Here, the statute refers to "an alien," and there is simply no other statu-
tory language or statutory context which supports reading this to mean
"some aliens." The dissent fails to explain how the text itself allows for
multiple meanings. Instead, it references the statute’s legislative and
administrative history, not to resolve an ambiguity, but to create one in
the face of clear statutory language. See BedRoc Ltd., LLC v. United
States, 541 U.S. 176, 187 n.8 (2004) ("[L]ongstanding precedents . . .
permit resort to legislative history only when necessary to interpret
ambiguous statutory text.").
5
Of course, we express no view on the merits of William’s motion to
reopen. Likewise, we do not consider the Government’s argument that
we would have no jurisdiction to review the BIA’s adjudication of the
merits of William’s motion because that determination is committed to
the discretion of the BIA. As the BIA has not ruled on the merits of Wil-
liam’s motion, this argument is hypothetical and not properly before us
at this time. Moreover, the Government does not argue that a remand to
the BIA would be futile because of a procedural or other defect in Wil-
liam’s motion or that the BIA would necessarily refuse to exercise its
discretion to reopen proceedings. In fact, at oral argument, the Govern-
ment noted that none of the statutory or regulatory limitations (other than
8 C.F.R. § 1003.2(d)) is currently at issue.
WILLIAM v. GONZALES 9
IV
Based on the foregoing, we grant the petition for review, vacate the
order of the BIA, and remand for further proceedings consistent with
this opinion.
PETITION FOR REVIEW GRANTED; ORDER VACATED
WILLIAMS, Chief Judge, dissenting:
Congress has decreed that "[a]n alien may file one motion to
reopen proceedings." 8 U.S.C.A. § 1229a(c)(7)(A) (West 2005 &
Supp. 2007). Insofar as this provision sets a numerical limit on
motions to reopen, its meaning is too plain to be misunderstood.
According to the majority, however, this provision does much more
than set a numerical limitation on motions to reopen. It also clearly
evidences Congress’s intent to repeal 8 C.F.R. § 1003.2(d) (2007), the
regulation barring aliens subject to removal proceedings from filing
a motion to reopen after departing from the United States.
Although I appreciate the majority’s reading of the statute, I am not
convinced that we should halt our inquiry at step one of the two-step
analysis set forth in Chevron, U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Congress’s codification
of a numerical limitation on motions to reopen does not speak pre-
cisely, or even generally, to the question of whether the Attorney
General’s departure bar on motions to reopen is a valid exercise of his
rulemaking authority under the Immigration and Nationality Act
(INA), as amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009 (1996). Given that a nearly identical provision limiting aliens to
one motion to reopen existed before enactment of the IIRIRA, and in
the same regulation containing the departure bar now located in
§ 1003.2(d), see 8 C.F.R. § 3.2(c)(2) (1997), I cannot join the majori-
ty’s conclusion that § 1229a(c)(7)(A) by itself repeals the departure
bar in 8 C.F.R. § 1003.2(d). Unlike my colleagues, I do not see how
we can get a "clear sense of congressional intent," Gen. Dynamics
Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004), to repeal the
departure bar simply because the numerical limitation on motions to
reopen now occupies a place in the United States Code where previ-
10 WILLIAM v. GONZALES
ously it only existed in the Federal Register. One would have
expected that much more than an unremarkable numerical limitation
would be needed to clearly demonstrate Congress’s intent to strike
down a regulation that has been in place for over forty years.
Thus, I am unable to join in the majority’s Chevron analysis and
therefore undertake my own inquiry under Chevron’s familiar frame-
work. This inquiry leads me to conclude that, although a close ques-
tion, 8 C.F.R. § 1003.2(d) remains a valid exercise of the Attorney
General’s congressionally-delegated rulemaking authority under the
INA.
I.
Today our court becomes the first court to invalidate 8 C.F.R.
§ 1003.2(d). The regulation provides the following:
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 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 with-
drawal of such motion.
8 C.F.R. § 1003.2(d).
When the validity of an agency’s regulation is at issue, we of
course apply Chevron. We must first consider whether "Congress has
directly spoken to the precise question at issue," id. at 842, in which
case "the court, as well as the agency, "must give effect to the unam-
biguously expressed intent of Congress," id. at 842-43. As part of this
inquiry, we may "employ[] traditional tools of statutory construction
[to] ascertain[] that Congress had an intention on the precise question
at issue." I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (quot-
ing Chevron, 467 U.S. at 843 n.9). "Even for an agency able to claim
all the authority possible under Chevron, deference to its statutory
WILLIAM v. GONZALES 11
interpretation is called for only when the devices of judicial construc-
tion have been tried and found to yield no clear sense of congressional
intent." Gen. Dynamic Land Sys., 540 U.S. at 600. If the statute is
silent or ambiguous with respect to the specific issue, however, "the
question for the court is whether the agency’s answer is based on a
permissible construction of the statute." Chevron, 467 U.S. at 843.
And where Congress has not merely failed to address a precise ques-
tion but has also made an explicit delegation of rulemaking authority
to the agency, "the agency’s regulation is ‘given controlling weight
unless [it is] arbitrary, capricious, or manifestly contrary to the stat-
ute.’" Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239
(2004)(quoting Chevron, 467 U.S. at 844)(alteration in original). Con-
gress has made such a delegation to the Attorney General with respect
to the INA. See 8 U.S.C.A. § 1103(g)(2) (West 2005) (providing that
"[t]he Attorney General shall establish such regulations, . . . delegate
such authority, and perform such other acts as the Attorney General
determines to be necessary for carrying out [the INA]").
According to the majority, we need not venture past Chevron’s first
step in this case because 8 U.S.C.A. § 1229a(c)(7)(A)’s statement that
"[a]n alien may file one motion to reopen" precisely addresses the
question of whether an alien may file his one motion to reopen after
departing the United States. This is so, according to my good col-
leagues, "because, in providing that ‘an alien may file,’ the statute
does not distinguish between those aliens abroad and those within the
country — both fall within the class denominated by the words ‘an
alien.’" Ante at 6.
As an initial matter, it is clear that § 1229a(c)(7)(A) does not
explicitly prohibit or permit motions to reopen made after departure.
The provision simply does not speak to that question. And it is hardly
surprising that the provision does not distinguish between classes of
aliens, for the provision’s purpose is to limit the number of motions
to reopen that an alien may file. Although the majority shifts the focus
to Congress’s use of the words "an alien," I believe the proper point
of emphasis in the statute is on the number "one," for as demonstrated
later, § 1229a(c)(7)(A) reflects Congress’s longstanding concern with
limiting the number of motions to reopen an alien may file. See Pena-
Muriel v. Gonzales, 489 F.3d 438, 442 (1st Cir. 2007) (noting that
12 WILLIAM v. GONZALES
IIRIRA "enacted strict time limits for the filing of motions to reopen
and limited aliens to a single filing").
But there are other problems with focusing in on the words "an
alien" in the Chevron analysis, not the least of which is that a regula-
tion with nearly identical language that limited aliens to one motion
to reopen existed before enactment of the IIRIRA. Pre-IIRIRA, the
Attorney General had already ruled that "an alien may file only one
motion to reopen removal proceedings (whether before the Board or
the Immigration Judge)." 8 C.F.R. § 3.2(c)(2) (1997). This numerical
limitation, which was described as such in the regulation, see 8 C.F.R.
§ 3.2(c)(3) (providing limited exceptions to the "time and numerical
limitations" set forth in § 3.2(c)(2)), existed alongside the departure
bar in § 1003.2(d). The majority’s conclusion that Congress’s intent
to repeal 8 C.F.R. § 1003.2(d) is clearly evidenced by Congress’s
enactment of § 1229a(c)(7)(A) alone does not sufficiently account for
the realities of the pre-IIRIRA regulatory framework and imputes
more meaning to the codified numerical limitation than the words of
the statute can bear.
The remainder of § 1229a(c) confirms this conclusion. Section
1229(a)(c)(7) goes on to provide that, with certain exceptions, an
alien must file his one motion to reopen "within 90 days of the date
of entry of a final administrative order of removal." 8 U.S.C.A.
§ 1229a(c)(7)(C)(i). The statutory context of § 1229a(c)(7) makes
clear that it is just a numerical limitation — nothing more, nothing
less. See United States v. Morton, 467 U.S. 822, 828 (1984) ("We do
not . . . construe statutory phrases in isolation; we read statutes as a
whole."). In short, § 1229a(c)(7)(A) in isolation says nothing about
the departure bar in 8 C.F.R. § 1003.2(d) or about whether the statute
as a whole should be construed as repealing the departure bar.
It stands to reason that if Congress intended to repeal the departure
bar, it would have done so by doing more than merely repeating the
numerical limitation already contained in the regulations, a limitation
that was designed to operate alongside the departure bar to promote
finality in deportation proceedings. Indeed, at oral argument, Wil-
liam’s counsel did not go so far as to argue that § 1229a(c)(7)(A)
alone rendered 8 C.F.R. § 1003.2(d) invalid; he argued instead that
Congress’s intent to repeal the regulation is clear when
WILLIAM v. GONZALES 13
§ 1229a(c)(7)(A) is considered in conjunction with other of the
IIRIRA’s amendments. It is this broader argument that I believe
should be the focus of our attention.
Although not discussed by William or the American Immigration
Law Foundation ("AILF") as amicus curiae in this case, the majority
finds additional support for its reading of § 1229a(c)(7)(A) in 8
U.S.C.A. § 1229a(c)(7)(C)(iv)(IV) (West 2005 & Supp. 2007), which
provides that the usual 90-day filing period does not apply where an
alien who is applying for relief from removal as a victim of domestic
violence "is physically present in the United States at the time of fil-
ing the motion." 8 U.S.C.A. § 1229a(c)(7)(C)(iv)(IV). This provision
provides little support for the majority’s Chevron step-one conclusion
in this case.
First, the domestic-violence exception is not relevant to the ques-
tion of whether the IIRIRA repealed the regulatory departure bar, for
Congress did not add the exception to § 1229a until nearly a decade
after enactment of the IIRIRA. The exception was first enacted as part
of the Victims of Trafficking and Violence Protection Act of 2000,
Pub. L. No. 106-386, 114 Stat. 1464 (2000), an act aimed at combat-
ing the sex slave trade and preventing violence against women. See
id. § 1506. The original version of the domestic-violence exception
did not include current § 1229a(c)(7)(C)(iv)(IV), the "physical pres-
ence" requirement that the majority focuses on here. That provision
was added later as part of the Violence Against Women and Depart-
ment of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
§ 825, 119 Stat. 2960 (2006). See id. § 825. Thus, the IIRIRA amend-
ments to the INA relating to motions to reopen — enacted as part of
a comprehensive reform to the immigration laws — and the domestic-
violence exception in § 1229a(c)(7)(C)(iv)(IV) — enacted as part of
congressional efforts to snuff out sex slave trade and domestic vio-
lence — are connected neither in time nor purpose.
Second, § 1229a(c)(7)(C)(iv)(IV)’s physical-presence requirement
is not coextensive with the regulatory departure bar. Whereas
§ 1229a(c)(7)(C)(iv)(IV) only requires that the alien be physically
present in the United States "at the time of filing the motion," 8
U.S.C.A. § 1229a(c)(7)(C)(iv)(IV), the regulation provides that any
departure from the United States constitutes a withdrawal of a motion
14 WILLIAM v. GONZALES
to reopen that was filed while the alien was present in the United
States, 8 C.F.R. § 1003.2(d). The majority understands the domestic-
violence exception as proving, by negative implication, that Congress
does not intend for the regulatory departure bar to apply generally to
motions to reopen, but it is equally plausible to understand the
domestic-violence exception as carving out a limited exception to the
general working of the departure bar. This is because one can reason-
ably understand § 1229a(c)(7)(C)(iv)(IV) to mean that as long as the
qualifying alien files a motion to reopen before departing the country,
the alien’s subsequent departure from the United States has no effect
on the BIA’s ability to hear the motion, which is a decidedly different
result than would obtain under the departure bar. Given that the regu-
latory departure bar and the physical-presence requirement in the
domestic-violence exception are not one in the same, I question the
majority’s conclusion that the regulation renders the statutory lan-
guage "mere surplusage." Ante at 7.
Having explained my disagreement with the majority’s Chevron
analysis, I now address William’s broader challenge to the regulation,
an argument that draws on other of the IIRIRA’s amendments.
II.
A. Chevron Step One.
William contends that Congress has precisely spoken through the
IIRIRA to the issue of § 1003.2(d)’s validity by making a number of
amendments to the INA that undercut any previously existing statu-
tory basis for the regulation. First, Congress codified the motion to
reopen as a statutory form of relief, specifying both numerical limita-
tions, see 8 U.S.C.A. § 1229a(c)(7)(A), and time limits, see id.
§ 1229a(c)(7)(C)(I), detailing the motion’s contents, see id.
§ 1229a(c)(7)(B), and carving out exceptions to the time and numeri-
cal limitations, see id. § 1229a(c)(7)(C)(ii)-(iv). Congress did not,
however, codify the departure bar in § 1003.2(d). Second, Congress
repealed 8 U.S.C.A. § 1105a(c) (1996), repealed by Pub. L. 104-208,
Div. C, Title III, § 306(b), 110 Stat. 3009-612 (1996), the provision
that precluded judicial review of an order of deportation or exclusion
after an alien’s departure from the United States. And third, Congress
restructured judicial review of final orders of removal under 8
WILLIAM v. GONZALES 15
U.S.C.A. § 1252 (West 2005) without reenacting the departure bar to
judicial review. According to William, these changes to the INA
clearly evidence "congressional intent to eliminate any [ ] jurisdic-
tional bar to having a motion to reopen heard following departure,
thereby rendering [§ 1003.2(d)] invalid." (Petitioner’s Br. at 13.)
Because this argument depends so greatly on the changes wrought by
the IIRIRA to the INA, a brief review of the statutory and regulatory
landscapes before and after the 1996 amendments is necessary.
1.
In 1961, Congress amended the immigration statutes and, among
other things, gave the circuit courts jurisdiction to review final orders
of deportation through a petition for review. See An Act to Amend the
Immigration and Nationality Act, Pub L. No. 87-301, § 5(a), 75 Stat.
650, 651 (1961) (codified at 8 U.S.C.A. § 1105a(c)). This judicial
review provision barred the circuit courts from reviewing an order of
deportation or exclusion "if [the alien] has departed from the United
States after the issuance of the order." 8 U.S.C.A. § 1105a(c). In the
same year, the Department of Justice issued 8 C.F.R. § 3.2, the pre-
decessor to § 1003.2(d). See Board of Immigration Appeals: Powers;
and Reopening or Reconsideration of Cases, 27 Fed. Reg. 96, 96-97
(Jan. 5, 1962) (codified at 8 C.F.R. § 3.2). Section 3.2 provided the
following:
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 from the United States of
a person who is the subject of deportation proceedings
occurring after the making of a motion to reopen or a
motion to reconsider shall constitute a withdrawal of such
motion.
Id. As the majority and William note, at this time there was no statu-
tory basis for the motion to reopen. It was entirely a creature of regu-
lation. Both the statutory departure bar to judicial review and the
regulatory departure bar to BIA review remained unchanged until
1996.
16 WILLIAM v. GONZALES
In 1990, however, Congress, concerned that aliens were filing friv-
olous motions to reopen as part of dilatory tactics to delay removal
or deportation, directed the Attorney General to establish numerical
and time limits on motions to reopen, where previously only the
departure bar had existed. Specifically, in the Immigration Act of
1990 (the "1990 Act"), Congress directed that "the Attorney General
shall issue regulations with respect to . . . the period of time in which
motions to reopen and to reconsider may be offered in deportation
proceedings, which regulations include a limitation on the number of
such motions that may be filed and a maximum time period for the
filing of such motions." Immigration Act of 1990, Pub. L. No. 101-
649, § 545(b), 104 Stat. 4978 (1990). With regard to the time limita-
tion, Congress strongly "hint[ed] that a 20-day period would be
appropriate." Stone v. I.N.S., 514 U.S. 386, 400 (1995).1 It is clear,
then, that as of 1990, Congress’s primary concern was limiting, not
expanding, the circumstances under which motions to reopen could be
made.
On April 29, 1996, after a lengthy notice and comment period, the
Attorney General amended 8 C.F.R. § 3.2 and established both
numerical and time limits for motions to reopen and motions to recon-
sider. See Executive Office for Immigration Review; Motions and
Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900, 18,905
(Apr. 29, 1996) (codified at 8 C.F.R. § 3.2(c)(2)). The amended regu-
lation provided that "a party may file only one motion to reopen pro-
ceedings (whether before the Board or the Immigration Judge) and
that motion must be filed not later than 90 days after the date on
which the final administrative decision was rendered in the proceed-
ing sought to be reopened." Id. The Attorney General retained the
departure bar language from the earlier § 3.2, but moved it to § 3.2(d).
See id. § 3.2(d). The regulation also described the contents of the
motion to reopen and set out very limited exceptions to the new time
and numerical limitations. See id. § 3.2(c)(3). The amended 8 C.F.R.
§ 3.2 became effective on July 1, 1996. See 61 Fed. Reg. at 18,900.
1
The 1990 Act also "cut in half the time for seeking judicial review of
the final deportation order, from 180 to 90 days." Stone v. I.N.S., 514
U.S. 386, 400 (1995) (citing the 1990 Act § 545(b)).
WILLIAM v. GONZALES 17
On September 30, 1996, Congress enacted the IIRIRA. The
IIRIRA contained many provisions "aimed at protecting the Execu-
tive’s discretion from the courts - indeed, that can fairly be said to be
the theme of the legislation." Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 486 (1999). These provisions included 8
U.S.C.A. § 1252(a)(2)(A), which limits judicial review of claims aris-
ing from the inspection of aliens arriving in the United States;
§ 1252(a)(2)(B), which bars review of denials of discretionary relief
authorized by various statutory provisions; § 1252(a)(2)(C), which
bars review of final orders against criminal aliens; and 8 U.S.C.A.
§ 1252(b)(3)(B), which repealed 8 U.S.C.A. § 1105a(a)(3), the provi-
sion entitling an alien to an automatic stay pending the completion of
a judicial review of a removal order. The IIRIRA also repealed 8
U.S.C.A. § 1105a(c), which barred judicial review of deportation
orders after an alien departed or was removed from the country. These
and other provisions of the IIRIRA streamlined the rules and proce-
dures in the INA so that it would be easier to remove deportable
aliens from the United States.
The IIRIRA also, for the first time, codified the motion to reopen,
establishing time and numerical limitations on such motions, describ-
ing their contents, and carving out limited exceptions to the time and
numerical limitations. See 8 U.S.C.A. § 1229a(c). These provisions
virtually mimicked the pre-existing provisions in 8 C.F.R. § 3.2,
except the IIRIRA did not codify the departure bar contained in
§ 3.2(d). The IIRIRA became effective on April 1, 1997. See IIRIRA
§ 309(a).
On March 6, 1997, the Attorney General promulgated regulations
implementing the IIRIRA. See Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal Pro-
ceedings; Asylum Procedures, 62 Fed. Reg. 10,312 (March 6, 1997).
Although the IIRIRA repealed the departure bar to judicial review,
the Attorney General retained the departure bar to BIA review, only
slightly modifying the provision to read as follows:
(d) 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
18 WILLIAM v. GONZALES
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 proceed-
ings, occurring after the filing of a motion to reopen or a
motion to reconsider, shall constitute a withdrawal of such
motion.
Id. at 10,331 (codified at 8 C.F.R. § 3.2(d)). The Attorney General
specifically addressed the continuing validity of the departure bar to
BIA review in the notice and comment process. In the commentary,
the Attorney General explained:
No provision of the new section 242 of the [INA] supports
reversing the long established rule that a motion to reopen
or reconsider cannot be made in immigration proceedings by
or on behalf of a person after that person’s departure from
the United States. . . . The Department [of Justice] believes
that the burdens associated with the adjudication of motions
to reopen and reconsider on behalf of deported or departed
aliens would greatly outweigh any advantages this system
might render.
Id. at 10,321. In 2003, the former § 3.2(d) was redesignated as 8
C.F.R. § 1003.2(d). See Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 Fed. Reg. 9,824, 9,830 (Feb. 28,
2003).
2.
William’s argument is an argument by negative implication:
Because Congress repealed the departure bar to judicial review, codi-
fied the time, numerical, and content limitations on motions to
reopen, and carved out limited exceptions to the time and numerical
limitations, William contends that Congress’s failure to codify the
departure bar clearly shows that it intended that no such bar exist.
This line of argument is a familiar one, having roots in the maxim
expressio unius est exclusio alterius, "the expression of one thing
implies the exclusion of another." See Andrus v. Glover Constr. Co.,
446 U.S. 608, 616-17 (1980) ("Where Congress explicitly enumerates
WILLIAM v. GONZALES 19
certain exceptions to a general prohibition, additional exceptions are
not to be implied, in the absence of a contrary legislative intent.")
But for this interpretive thrust, there is a parry. See generally Karl
N. Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to Be Construed, 3 Vand.
L. Rev. 395 (1950); Landgraf v. USI Film Prods., 511 U.S. 244, 263
(1994) ("As Professor Llewellyn famously illustrated, many of the
traditional canons have equal opposites."). It is also "well established
that when Congress revisits a statute giving rise to a longstanding
administrative interpretation without pertinent change, the congressio-
nal failure to revise or repeal the agency’s interpretation is persuasive
evidence that the interpretation is the one intended by Congress."
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846
(1986) (internal quotation marks omitted); see also Lorillard v. Pons,
434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without [relevant] change.").
These countering principles of interpretation highlight the primary
defect in William’s Chevron step one argument: Congress has said
nothing explicitly about the propriety of a departure bar like the one
in § 1003.2(d). William argues that because Congress codified every
provision of the regulatory framework but the departure bar, that
omission must have been intentional, but the obvious response to this
argument is that Congress is presumed to have known about and
approved of the departure bar when it amended the INA without
explicitly repealing it. Congress often expressly repeals both statutory
provisions, see, e.g., 8 U.S.C.A. § 1105a(c) (the judicial departure
bar), and regulations, see, e.g., Bipartisan Campaign Reform Act of
2002, Pub. L. No. 107-155, § 214(c), 116 Stat. 81, 94 (2002) ("The
regulations on coordinated communications . . . are repealed."), and
it is reasonable to expect that Congress will speak with greater clarity
in overruling long-held agency interpretations like the departure bar
at issue here. Either way, the focus in this case inevitably shifts to
what Congress did not do or say, which is a good sign that the Chev-
ron inquiry must progress past step one.2
2
Moreover, and as discussed earlier in addressing my concerns regard-
ing the majority’s Chevron analysis, it is difficult to conclude that Con-
20 WILLIAM v. GONZALES
The First Circuit recently reached this same conclusion, moving
past Chevron’s first step in upholding the validity of 8 C.F.R.
§ 1003.23(b)(1) (2007), which bars immigration judges from consid-
ering motions to reopen and reconsider made after an alien’s depar-
ture. See Pena-Muriel, 489 F.3d at 441-42. The departure bar in 8
C.F.R. § 1003.23(b)(1) is virtually identical to the departure bar in the
regulation at issue here. Compare 8 C.F.R. § 1003.23(b)(1) with 8
C.F.R. § 1003.2(d). In Pena-Muriel, the petitioner, like William does
here, argued that Congress’s repeal of 8 U.S.C.A. § 1105a(c), the
departure bar to judicial review, "signaled its intent that the Attorney
General should no longer enforce 8 C.F.R. § 1003.23(b)(1)." Pena-
Muriel, 489 F.3d at 441. The court spent little ink in concluding that
deference to the Attorney General’s regulation, if found to be reason-
able, was warranted given that there is "no statutory language that
explicitly addresses the issue." Id. Indeed, one can infer from the
brevity of the Pena-Muriel court’s Chevron step one analysis that the
court felt little pause before proceeding to Chevron step two.
Although I recognize the appeal of inferring from Congress’s fail-
ure to codify the departure bar to BIA review that it meant to do away
with § 1003.2(d), I cannot conclude that such an inference amounts
to a clear statement of congressional intent under Chevron’s first step.
This is not to say that wholesale changes to a statute cannot demon-
strate Congress’s clear intent to repeal an agency interpretation with-
out mentioning the interpretation by name or number, but in this case
Congress’s amendments to the INA did not clearly foreclose the
Attorney General from exercising his discretion over the BIA’s juris-
diction to hear motions to reopen made after removal. I would there-
fore find that, under Chevron’s first step, the INA is silent as to
whether the Attorney General may regulate the BIA’s jurisdiction to
hear motions to reopen in the way that § 1003.2(d) does.
gress spoke to the precise question at issue here when it merely codified
a number of provisions relating to motions to reopen that already existed
in similar form as part of the regulatory framework, provisions that were
designed to operate in conjunction with the departure bar to promote effi-
ciency and finality in removal proceedings. The time limitation, the
numerical limitation, the contents provision — all of these items were
part of 8 C.F.R. § 3.2(d) before enactment of the IIRIRA.
WILLIAM v. GONZALES 21
B. Chevron Step Two.
If the statute is silent (I have concluded that it is), and if the agency
is empowered by statute to issue regulations to dispel the silence (the
Attorney General is), then we must uphold the agency’s interpretation
if it is "reasonable in light of the legislature’s revealed design."
NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins.
Co., 513 U.S. 251, 257 (1995). This deferential standard requires that
we give the agency’s interpretation "controlling weight unless [it is]
arbitrary, capricious, or manifestly contrary to the statute.’" House-
hold Credit Servs., 541 U.S. at 239 (quoting Chevron, 467 U.S. at
843-44)); see also Zheng v. Gonzales, 422 F.3d 98, 120 (3d Cir. 2005)
("Chevron, of course, stands for the proposition that administrative
agencies receive broad deference in interpreting the statutes which
they are charged with enforcing."). The Supreme Court has repeatedly
stated that "judicial deference to the Executive Branch is especially
appropriate in the immigration context where officials ‘exercise espe-
cially sensitive political functions that implicate questions of foreign
relations.’" I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quot-
ing I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)).
As noted above, the IIRIRA also repealed 8 U.S.C.A. § 1105a(c),
which provided that "[a]n order of deportation or of exclusion shall
not be reviewed by any court if the alien . . . has departed from the
United States after the issuance of the order." 8 U.S.C.A. § 1105a(c)
(1996). If congressional purpose is thwarted by § 1003.2(d), it must
be because Congress’s repeal of § 1105a(c), coupled with its failure
to codify the departure bar, strongly implied its desire to generally
free aliens from having to litigate removal-related matters while in the
United States, including freeing them from having to litigate motions
to reopen before removal. In my view, the repeal of § 1105a(c) is as
important to William’s argument as Congress’s failure to codify
§ 1003.2(d), for without the statutory repeal, Congress’s codification
of most, but not all, of the regulatory framework regarding motions
to reopen would make a less compelling argument for implied repeal
of § 1003.2(d). In a sense, then, the congressional repeal of
§ 1105a(c) is the glue that holds together William’s argument. But I
do not understand Congress’s repeal of the departure bar to judicial
review to telegraph its intentions with respect to motions to reopen.
22 WILLIAM v. GONZALES
For one thing, judicial review is not BIA review. The repealed
§ 1105a(c) served as a limitation on the power of courts to review
final orders of removal after the alien had departed from the country.
It seems precarious to conclude that Congress’s statutory maneuver-
ing with respect to the jurisdiction of the courts not only speaks, but
speaks definitively, to Congress’s intentions regarding the scope of
the BIA’s review. After all, it is the agency that is entrusted with
administering the statute, not the courts.
Perhaps more importantly, judicial review of an alien’s petition for
review with respect to a final order of removal is not the same as BIA
review of a motion to reopen. William’s argument assumes that a
petition for review of a final administrative order enjoys co-equal sta-
tus with a motion to reopen, but the history of the motion to reopen
indicates that it has been long disfavored under the immigration laws.
A petition for review of a final order of removal represents an alien’s
first and only opportunity for judicial review of the merits of the
order, whereas a motion to reopen seeks a subsequent opportunity for
administrative review. It is no surprise, then, that "[m]otions for
reopening of immigration proceedings are disfavored for the same
reasons as are petitions for rehearing and motions for a new trial on
the basis of newly discovered evidence." I.N.S. v. Doherty, 502 U.S.
314, 323 (1992). "There is a strong public interest in bringing litiga-
tion to a close as promptly as is consistent with the interest in giving
the adversaries a fair opportunity to develop and present their respec-
tive cases." Abudu, 485 U.S. at 107. To be sure, another long-cited
reason for disfavoring motions to reopen — that they were often used
as part of dilatory tactics and permitted "endless delay of deportation
by aliens creative and fertile enough to continuously produce new and
material facts sufficient to establish a prima facies case," id. at 108
(internal quotation marks omitted)— is no longer in play once the
alien has departed or been removed from the country, but the interest
in promoting finality in immigration proceedings still remains, and is
as strong as ever.
The differences between a petition for judicial review and a motion
to the BIA to reopen proceedings, in my view, largely explain why
Congress repealed the departure bar to judicial review and acquiesced
to the continued application of the Attorney General’s departure bar
to BIA review. Given that the IIRIRA streamlined the rules and pro-
WILLIAM v. GONZALES 23
cedures of the INA to make it easier for the BIA to deport aliens,
Congress surely must have understood that the result would be that
many more aliens would be removed during the pendency of their
judicial proceedings. Repealing § 1105a(c) ensured that the expedited
removal of aliens would not cut off their one-and-only chance at judi-
cial review of the merits of their removal order. But I cannot impute
to Congress a similar intention to free the motion to reopen from the
workings of the departure bar, given the motion’s disfavored status.
See Pena-Muriel, 489 F.3d at 442 (concluding that Congress’s repeal
of § 1105a(c) "does not remotely support an argument that Congress
also intended, implicitly, to allow post-departure petitions to reopen
a closed administrative proceeding").
Having established that Congress’s repeal of the departure bar to
judicial review of final removal orders has little or no bearing on the
validity of the regulation’s departure bar to BIA review of motions to
reopen, I turn to the only remaining question: Does the departure bar
undermine the INA’s purposes as evidenced by Congress’s codifica-
tion of the motion to reopen? Although not without some uncertainty,
I conclude that the answer is no. William’s argument essentially is
that we can infer from Congress’s failure to codify the departure bar,
in light of its codification of much of the pre-IIRIRA regulatory land-
scape governing motions to reopen, that the regulation acts contrarily
to the statute. This is a hard conclusion to accept given that the cur-
rent statutory and regulatory framework, which includes the departure
bar, operates nearly identically to how the regulation operated before
the IIRIRA. Before the IIRIRA, an alien could only file one motion
to reopen, within 90 days, and before removal from the country.
Assuming the validity of the regulation, the same is true after the
IIRIRA. William’s argument that the regulation "cuts into" the statu-
tory framework assumes that Congress’s failure to enact the regula-
tory bar implies that Congress meant to do away with it, but that is
the very question to be answered here and, as such, is not a convinc-
ing argument.3
3
The AILF as amicus curiae argues that § 1003.2(d) "puts [aliens] who
fail to comply with a final order in a better situation than those who
depart the United States in accordance with the order" because "[aliens]
who have evaded deportation are entitled to have their motions to reopen
24 WILLIAM v. GONZALES
Returning to my earlier discussion of William’s "thrust" and the
Government’s "parry," I believe that the Government has the better
of the argument. Given the INA’s silence with respect to the departure
bar, I understand Congress’s failure to explicitly repeal 8 C.F.R.
§ 1003.2(d) as acquiescence to its continued operation. The regulation
containing the departure bar, a provision aimed at promoting finality
in removal proceedings, has been the longstanding view of the Attor-
ney General, "a view that we [must] presume Congress understood
when it amended the Act in [1996]." Stone, 514 U.S. at 398. This pre-
sumption is especially strong here, for the Attorney General’s regula-
tion was "fresh" when Congress enacted the IIRIRA, having been
promulgated only a few months before Congress passed the IIRIRA.
If Congress wished to repeal, either explicitly or implicitly, a recently
promulgated regulation containing a forty-year-old agency interpreta-
tion respecting the agency’s own jurisdiction, it would have done
much more than just transplant time, numerical, and content limita-
tions on motions to reopen from the regulatory framework into the
statutory framework without clearly saying anything, one way or the
other, about the departure bar.4 Although William and Amicus Curiae
adjudicated while [aliens] who depart voluntarily or surrender for depor-
tation are not." (Amicus Br. at 13.) Although I am hesitant to respond to
an argument that assumes a breakdown in the functioning of the INA,
this argument neglects the obvious fact that, in most cases, an alien who
has evaded deportation or otherwise failed to comply with a removal
order will have exhausted his opportunity to file a motion to reopen
within the 90-day filing period. See 8 U.S.C.A. § 1229a(c)(7)(C)(i)
(West 2005 & Supp. 2007) (establishing a 90-day filing period for
motions to reopen). In spite of my disagreement with the Foundation’s
position, I wish to note my appreciation for their participation in this
case.
4
It should further be noted that, in striking down 8 C.F.R. § 1003.2(d),
the majority has also opened the door to an alien filing a motion to recon-
sider from abroad. The regulation serves as a departure bar to both
motions to reopen and motions to reconsider. See 8 C.F.R. § 1003.2(d)
(2007). Like a motion to reopen, an alien may file "one motion to recon-
sider," 8 U.S.C.A. § 1229a(c)(6)(A) (West 2005 & Supp. 2007), but the
filing period is 30 days, id. § 1229a(c)(6)(B), much shorter than the 90
days for motions to reopen. As of today’s majority decision, aliens also
are no longer barred from prosecuting motions to reconsider after depar-
ture.
WILLIAM v. GONZALES 25
contend that Congress’s omission of the departure bar from the statu-
tory framework speaks convincingly to Congress’s desire to repeal it
(albeit implicitly), I understand this omission, considered in light of
the changes expressly made to the INA, as acquiescence to its contin-
ued functioning.5
III.
In sum, I conclude that Congress has not spoken precisely to the
question at issue merely by using the words "an alien" in a provision
setting a numerical limitation on motions to reopen. Even looking to
the other changes made by the IIRIRA to the INA’s framework and
to post-IIRIRA amendments to the INA, I am unable to conclude that
5
To reiterate, no other court has invalidated 8 C.F.R. § 1003.2(d).
Rather, courts — including ours — have generally assumed 8 C.F.R.
§ 1003.2(d) (or its post-IIRIRA predecessor, § 3.2(d)) to strip the BIA’s
jurisdiction over reopening motions made by departed aliens. See, e.g.,
Dekoladenu v. Gonzales, 459 F.3d 500, 506 (4th Cir. 2006) (stating that
"an alien who requests voluntary departure will forfeit his right to a deci-
sion on his motion to reopen if the IJ grants his request"); Singh v. Gon-
zales, 468 F.3d 135, 140 (2d Cir. 2006) (noting that one consequence of
an alien’s compliance with a voluntary departure order is "forfeiture of
the right to file a motion to reopen"); Navarro-Miranda v. Ashcroft, 330
F.3d 672, 675-76 (5th Cir. 2003) (upholding BIA’s application of the
departure bar to find that the BIA lacked jurisdiction over the deported
alien’s motion to reopen). I say generally because the Ninth Circuit,
despite acknowledging that the plain language of 8 C.F.R. § 1003.2(d)
supports the BIA’s application of an absolute departure bar, requires the
BIA to consider motions to reopen made by removed aliens when the
basis for removal was a criminal conviction that was later vacated. In
those circumstances, the Ninth Circuit holds that the deportation based
on an invalid conviction was not "‘legally executed’ and . . . , therefore,
the defective deportation may be reopened after the petitioner has left the
country." E.g., Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106-08
(9th Cir. 2006). Putting aside the textual and Chevron problems with the
Ninth Circuit’s exception to the departure bar, the Ninth Circuit contin-
ues to apply this exception and has, at least on one occasion, expressly
declined to decide the validity of the regulation, see id. at 1106 n.2
(expressly declining petitioner’s invitation to invalidate 8 C.F.R.
§ 1003.2(d)).
26 WILLIAM v. GONZALES
Congress has clearly signaled its intention to repeal the departure bar
in 8 C.F.R. § 1003.2(d).
Turning to Chevron’s second step, the Attorney General believes
that the burdens associated with the adjudication of motions to reopen
on behalf of departed or removed aliens would greatly outweigh any
advantages such adjudication would render and would not promote
the goal of finality in immigration proceedings. In light of Congress’s
express delegation of rulemaking power to the Attorney General and
the INA’s silence on the question we face here, I believe we should
give the Attorney General’s view controlling weight in this case, an
expression of deference that is "especially appropriate" given the
immigration context, Aguirre-Aguirre, 526 U.S. at 425 (quoting
Abudu, 485 U.S. at 110), and the vintage of the regulation, see Nat’l
Lead Co. v. United States, 252 U.S. 140, 145-46 (1920) (stating that
deference to an agency’s construction of a statute is "especially
[appropriate] where such construction has been long continued").6 I
would therefore uphold 8 C.F.R. § 1003.2(d) as a valid exercise of the
Attorney General’s congressionally-delegated rulemaking authority.
Accordingly, I respectfully dissent.
6
My conclusion is similar to the one reached by the First Circuit in
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007), in which that
court upheld the departure bar in 8 C.F.R. § 1003.23(b)(1), which applies
to motions to reopen made before immigration judges and is nearly iden-
tical to the departure bar in 8 C.F.R. § 1003.2(d) (2007), as a reasonable
construction of the post-IIRIRA statutory landscape. See id. at 442-43.