United States Court of Appeals
For the First Circuit
No. 05-1937
FREDY HUGO PENA-MURIEL,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ronald Olen, for petitioner.
Papu Sandhu, Senior Litigation Counsel, Michael J.
Sullivan, U.S. Attorney, Frank Crowley, Special Assistant U.S.
Attorney, Peter D. Keisler, Assistant Attorney General, and David
M. McConnell, Deputy Director, on brief for respondent.
June 13, 2007
LIPEZ, Circuit Judge. Noting that a court has now
vacated the criminal conviction on which his removal proceedings
were premised, Fredy Hugo Pena-Muriel asks us to vacate the Bureau
of Immigration Appeals' ("BIA") decision refusing to reopen his
removal proceedings. Pena-Muriel argues that a change in
immigration law or, alternatively, principles of due process
require such a reopening, even though he left the country before he
petitioned the government to reopen his deportation proceedings.
We reject his arguments and deny the petition for review.
I.
Pena-Muriel, a native and citizen of Bolivia, was
admitted to the United States in 1970, when he was less than two
years old. After residing in the United States as a lawful
permanent resident for twenty-seven years, Pena-Muriel was
convicted of domestic assault in February 1997 under R.I. Gen. Laws
§§ 11-5-3 and 12-29-5; he received a one-year suspended sentence
and probation. As a result of his conviction, Pena-Muriel was
placed in removal proceedings. See 8 U.S.C. § 1227(a)(2)(A)(iii)
(providing for deportation of aliens convicted of an aggravated
felony); and id. § 1227(a)(2)(E)(i) (same for crimes of domestic
violence). An Immigration Judge ("IJ") ordered Pena-Muriel removed
to Bolivia in August 1997. Pena-Muriel neither applied for relief
from the order nor appealed the IJ's decision. He subsequently
left the United States.
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In March 2002, Pena-Muriel's Rhode Island conviction was
vacated on the basis of an affidavit from the victim stating that
Pena-Muriel "should not have been charged" without further
elaboration. The victim simply said: "I am not at liberty to
explain why." Shortly thereafter – but roughly five years after
his departure from the United States – Pena-Muriel moved to reopen
his removal proceedings based on the vacatur of his conviction.
The IJ denied the motion to reopen, citing 8 C.F.R. § 3.23(b)(1)
(now designated at 8 C.F.R. § 1003.23(b)(1)), which states: "A
motion to reopen or to reconsider shall not be made by or on behalf
of a person who is the subject of removal, deportation, or
exclusion proceedings subsequent to his or her departure from the
United States." (emphasis added). The BIA summarily affirmed the
IJ's decision in February 2003.
Months later, Pena-Muriel filed a petition for a writ of
habeas corpus in the District of Massachusetts. Upon the
government's motion, the case was transferred to the First Circuit
as a petition for review pursuant to section 106(c) of the REAL ID
Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. See
Alexandre v. U.S. Att'y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006)
("Section 106 of the REAL ID Act amended 8 U.S.C. § 1252(a) so that
a petition for review filed with the appropriate court is now an
alien's exclusive means of review of a removal order. While
limiting the avenues of judicial review, the REAL ID Act expanded
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courts of appeals' jurisdiction to consider constitutional and
legal questions presented in a petition for review.
§ 1252(a)(2)(D). Congress believed that '[b]y placing all review
in the courts of appeals, [the REAL ID Act] would provide an
'adequate and effective' alternative to habeas corpus.'" (quoting
151 Cong. Rec. H2813-01) (citation omitted)).
Pena-Muriel now argues that Congress abrogated the
regulation precluding consideration of a motion to reopen after an
alien has departed the country when it passed the Illegal
Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as
amended in scattered sections of 8 U.S.C.). IIRIRA amended the
Immigration and Naturalization Act ("INA"), in relevant part, by
removing 8 U.S.C. § 1105a(c) (1994) (repealed 1996), which stated:
"An order of deportation . . . shall not be reviewed by any court
if the alien . . . has departed from the United States after the
issuance of the order." Describing 8 C.F.R. § 1003.23(b)(1) as
"linked" to this statutory provision, Pena-Muriel argues that the
deletion of § 1105a(c) invalidated the regulation. Alternatively,
Pena-Muriel argues that allowing his deportability to be premised
on a vacated conviction violates his Fifth Amendment due process
rights.
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II.
A. The Statutory Claim
The premise of Pena-Muriel's statutory claim – that the
regulation on which the BIA based its dismissal was inextricably
linked to the language of the superseded statute – is wrong. At
the time the regulation was adopted, there was no statutory
authority for a motion to reopen. See INS v. Doherty, 502 U.S.
314, 322 (1992).1 Instead, the regulation arose from the Attorney
General's broad discretion to regulate relief from deportation
orders. See Goncalves v. INS, 6 F.3d 830, 832 (1st Cir. 1993)
(recognizing that "Congress intended the Attorney General to have
considerable leeway in working out the precise procedures for
determining contested issues related to deportation and
'discretionary relief'"). The Attorney General's authority to
prohibit consideration of motions to reopen from aliens who have
departed the United States did not originally depend upon the
statutory language in § 1105a(c). Thus, the removal of that
statutory language by IIRIRA does not abrogate the Attorney
General's authority to continue to enforce the limitations of 8
C.F.R. § 1003.23(b)(1).
1
With IIRIRA's enactment, motions to reopen were transformed
from a regulatory to a statutory form of relief. See Azarte v.
Ashcroft, 394 F.3d 1278, 1283-84 (9th Cir. 2005) (discussing
IIRIRA's codification of the reopening procedure).
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Pena-Muriel also argues that, by deleting the language of
§ 1105a(c), Congress signaled its intent that the Attorney General
should no longer enforce 8 C.F.R. § 1003.23(b)(1). The Attorney
General counters that the statutory change signals no such
intention. The parties point to no statutory language that
explicitly addresses the issue. As the Supreme Court has stated,
where a statute is silent or ambiguous on the issue at hand, we
must "defer to a reasonable construction by the agency charged with
its implementation." Barnhart v. Thomas, 540 U.S. 20, 26 (2003)
(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 843 (1984)).
In challenging the reasonableness of the Attorney
General's interpretation of the INA amendments as they relate to
the reopening issue, Pena-Muriel cites due process concerns
expressed during testimony before the House Judiciary Committee
preceding IIRIRA's passage:
The administration is committed to ensuring
that aliens in deportation proceedings are
afforded appropriate due process; however, the
availability of multiple layers of judicial
review has frustrated the timely removal of
deportable aliens.
Removal of Criminal and Illegal Aliens: Hearing Before the Subcomm.
on Immigration and Claims of the H. Comm. on the Judiciary, 104th
Cong. 15 (1995) (statement of T. Alexander Aleinikoff, General
Counsel, Immigration and Naturalization Service). Pena-Muriel
argues that Congress, motivated by due process concerns to
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reinstate judicial review despite an alien's departure, would be
similarly motivated to permit motions to reopen administrative
proceedings by persons subject to removal, deportation, or
exclusion proceedings after they have left the country.
Pena-Muriel misunderstands the context of the due process
concerns expressed in the congressional testimony. Prior to
IIRIRA, "an alien seeking review of a deportation order was
entitled to an automatic stay pending the completion of that
review." Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003).
IIRIRA "altered that paradigm," instead "requir[ing] a review-
seeker to ask the reviewing court for a stay of removal," id., and
raising the standards that must be met in order to receive such a
stay. See Reno v. American-Arab Anti-Discrim. Comm., 525 U.S. 471,
475 (1999) (noting that IIRIRA "repealed the old judicial-review
scheme set forth in § 1105a and instituted a new []and
significantly more restrictive[] one"). Because this change would
result in the deportation of many aliens while they were awaiting
judicial review, Congress amended the INA to allow these aliens to
continue litigating their appeals from abroad. See Tapia Garcia v.
INS, 237 F.3d 1216, 1217 (10th Cir. 2001) (recognizing, in this
limited context, that "deportation no longer forecloses judicial
review").
Understood against this background, the testimony cited
by Pena-Muriel does not advance his position. Indeed, the concern
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expressed about "multiple layers of judicial review" reflects an
intent to reinforce the finality of removal decisions. With the
amendments to the INA, Congress allowed post-departure appeals of
the BIA's original order of deportation, thereby protecting the
alien's first opportunity to challenge a deportation order in
court. That change does not remotely support an argument that
Congress also intended, implicitly, to allow post-departure
petitions to reopen a closed administrative proceeding.
The government also points out that IIRIRA enacted strict
time limits for the filing of motions to reopen and limited aliens
to a single filing. See Azarte v. Ashcroft, 394 F.3d 1278, 1286
(9th Cir. 2005) (noting that before IIRIRA "motions to reopen were
never time-barred"); Sidikhouya v. Gonzales, 407 F.3d 950, 951-52
(8th Cir. 2005) (explaining that IIRIRA allows aliens to file a
"single motion to reopen at the conclusion of removal
proceedings"). Yet, Congress remained silent regarding the long-
standing regulatory bar imposed by 8 C.F.R. § 1003.23(b)(1).
Citing Supreme Court precedent, the government argues that "when
Congress revisits a statute giving rise to a longstanding
administrative interpretation without pertinent change, the
'congressional failure to revise or repeal the agency's
interpretation is persuasive evidence that the interpretation is
the one intended by Congress.'" Commod. Futures Trading Comm'n v.
Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace
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Co., 416 U.S. 267, 275 (1974)). The government's insistence that
the Attorney General's interpretation was the one intended by
Congress may be overreaching. Nevertheless, this precedent
supports the reasonableness of the Attorney General's
interpretation of the effect of the statutory change on the
regulatory bar imposed by 8 C.F.R. § 1003.23(b)(1) on motions to
reopen.
B. The Due Process Claim
Pena-Muriel argues that allowing his deportation order to
stand on the basis of a criminal conviction that has since been
vacated violates his constitutional right to due process. We
disagree.
Pena-Muriel cites a variety of cases for the principle
that "the overturning of a conviction upon which deportability was
premised is an appropriate basis for reopening administrative
proceedings." De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993);
see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006);
Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).
However, the fact that a vacatur may be an "appropriate" basis for
reopening a deportation order does not establish a due process
right to such reopening after one has departed the country.2
2
In addition, Pena-Muriel's situation is distinguishable from
these cases because each of them involved convictions that were
vacated before the removal proceedings had terminated and while
each petitioner remained in the country.
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It is well-established that aliens are entitled to due
process in deportation proceedings. See Reno v. Flores, 507 U.S.
292, 306 (1993); Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997).
In this context, due process requires that the alien receive notice
of the charges against him, and a fair opportunity to be heard
before an executive or administrative tribunal. Choeum, 129 F.3d
at 38. Pena-Muriel received due process in his deportation
proceedings. At the time of his departure, Pena-Muriel had been
convicted of crimes triggering deportation provisions. His removal
proceeding came to a lawful conclusion before his conviction was
vacated. With the benefit of appropriate notice, he received a
hearing before an IJ and the opportunity for an administrative
appeal to the BIA. He waived an appeal to the BIA after he was
ordered removed. He made no attempt to vacate his conviction prior
to his departure; and he voluntarily left the country. He makes no
claim that the IJ's removal order in 1997 was invalid or
constitutionally infirm.
Now Pena-Muriel seeks to reopen proceedings that ended
roughly ten years ago, on the basis of a vacatur that occurred five
years after he voluntarily removed himself from the country. Due
process does not require continuous opportunities to attack
executed removal orders years beyond an alien's departure from the
country. Indeed, there is a strong public interest in bringing
finality to the deportation process. See Baez v. INS, 41 F.3d 19,
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24 (1st Cir. 1994) (noting "Congress's intention to eliminate
excessive appeals and lend finality to the deportation process").
III.
For the foregoing reasons, we deny the petition for
review.
So ordered.
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