Zhang v. Holder, No. 09-2628 (2d Cir. 2010)

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09-2628-ag Zhang v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: June 24, 2010 Decided: August 12, 2010) Docket No. 09-2628-ag X UE Y ONG Z HANG, Petitioner, -v.E RIC H. H OLDER, J R., Attorney General of the United States, Respondent. Before: M INER, C ABRANES, and W ESLEY, Circuit Judges. Petitioner Xue Yong Zhang seeks review of a May 22, 2009 decision by the Board of Immigration Appeals dismissing his appeal of an Immigration Judge s January 22, 2009 order, which terminated his reopened removal proceedings on the basis that he had already been removed from the United States. Because we conclude that the BIA is entitled to deference regarding its interpretation of the regulation governing motions to reopen, we hold that the BIA did not err by dismissing petitioner s appeal for want of jurisdiction. We further hold that the nunc pro tunc relief sought by petitioner is not warranted on these facts. P ETITION DENIED. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 M ATTHEW L. G UADAGNO (Jules E. Coven and Kerry W. Bretz, on the brief), Bretz & Coven, LLP, New York, NY, for Petitioner. S TEVEN F. D AY, Trial Attorney (Tony West, Assistant Attorney General; and Francis W. Fraser, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent. W ESLEY, Circuit Judge: Petitioner Xue Yong Zhang ( petitioner or Zhang ) 15 seeks review of a May 22, 2009 decision by the Board of 16 Immigration Appeals ( BIA or Board ), which dismissed his 17 appeal of an Immigration Judge s January 22, 2009 decision 18 for want of jurisdiction. 19 petitioner to be removed, as well as a finding by the 20 Immigration Judge ( IJ ) that petitioner had submitted a 21 frivolous asylum application, became final. 22 later, in July 2008, petitioner filed a motion to reopen 23 those proceedings and a request for a stay of removal. 24 motion was procedurally defective under the Immigration and 25 Nationality Act ( INA ), see 8 U.S.C. § 1229a(c)(7), but 26 petitioner asked the BIA to invoke its sua sponte 27 authority, see 8 C.F.R. § 1003.2(a). 28 In 2003, the order calling for Five years The BIA declined to issue the stay, but it later 2 The 1 granted the motion to reopen and remanded the proceedings to 2 the IJ. 3 petitioner had already been removed. 4 terminated the proceedings when she learned that petitioner 5 was no longer physically present in the United States. 6 the decision challenged by petitioner here, the BIA vacated 7 its prior order reopening the removal proceedings, reasoning 8 that it lacked jurisdiction to consider petitioner s motion 9 at that time because he had already been removed. However, by the time the BIA granted the motion, On remand, the IJ In In 10 support of that conclusion, the Board cited the departure 11 bar regulation, 8 C.F.R. § 1003.2(d), and its decision in 12 In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). 13 In his petition for review, petitioner contends that 14 the departure bar, as applied by the BIA in this case, is 15 invalid because it conflicts with the language of the 16 regulation governing the BIA s sua sponte authority. 17 Petitioner also asserts, in the alternative, that the BIA 18 should have granted his motion to reopen, nunc pro tunc, as 19 of the date that it denied his request for a stay of 20 removal. 21 have avoided the application of the departure bar. 22 This equitable relief, petitioner argues, would Although we are sympathetic to petitioner s plight, we 3 1 are not persuaded, as a legal matter, by either contention. 2 The BIA has taken the position in a precedential decision 3 that the departure bar, where applicable, deprives it of 4 jurisdiction to consider a motion to reopen that asks the 5 Board to invoke its sua sponte authority. 6 Armendarez-Mendez, 24 I. & N. Dec. at 660. 7 the BIA s construction of this regulation is not plainly 8 erroneous and is therefore entitled to deference. 9 Consequently, the BIA did not err in relying on In re See In re We conclude that 10 Armendarez-Mendez and deciding that it lacked jurisdiction 11 to reopen petitioner s removal proceedings after he had been 12 removed from the country. 13 We decline to resolve, however, whether the departure 14 bar also precludes relief under the doctrine of nunc pro 15 tunc. 16 assuming, arguendo, that nunc pro tunc relief is not 17 jurisdictionally foreclosed, petitioner is not entitled to 18 that equitable remedy in this case. 19 petition is denied. 20 21 22 We need not take that additional step because, I. Accordingly, the BACKGROUND Zhang was born in China in 1978 and first came to the United States in October 1999. 4 Because Zhang lacked valid 1 entry documents when he arrived, the agency formerly known 2 as the Immigration and Naturalization Service ( INS ) 1 3 detained him and commenced removal proceedings. 4 conceded that he was subject to removal, and subsequently 5 filed an application for withholding of removal, asylum, and 6 relief under the Convention Against Torture. 7 application, Zhang expressed fear that [he would] be fined 8 and sentenced to jail for at least a year if he returned to 9 China because he violated the family planning policy and 10 also left the country illegally without an exit permit. 11 Petitioner In his After accepting briefing relating to the applications, 12 IJ Noel Ferris conducted a merits hearing on April 4, 2001 13 in New York City. 14 the IJ warned him that knowingly filing a frivolous asylum 15 application would lead him to be barred forever from 16 receiving any benefits under the Immigration and Nationality 17 Act. 18 word frivolous. 19 that he understood the IJ s admonition and that he wished to Before petitioner began his testimony, The IJ also defined in clear terms the meaning of the Following these warnings, Zhang indicated 1 The INS ceased to exist on March 1, 2003, and its functions were transferred to the Department of Homeland Security ( DHS ) pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (Nov. 25, 2002). See Dobrova v. Holder, 607 F.3d 297, 299 n.1 (2d Cir. 2010). 5 1 proceed with the adjudication of his asylum application. 2 During his testimony at the merits hearing, petitioner 3 asserted that he left China to escape political persecution 4 based on China s family planning policies. 5 testimony, the IJ warned petitioner that vague answers to 6 questions from his attorney impair[ed] [his] 7 believability. 8 married a woman in accordance with his cultural traditions, 9 but that when she became pregnant the government informed Early in his Petitioner went on to explain that he 10 them that both the marriage and the pregnancy were 11 illegal. 12 have an abortion and imposed a fine on the couple. 13 Petitioner testified that he was incarcerated after he 14 failed to pay the fine, but that he escaped custody and fled 15 to the United States. 16 petitioner produced in support of this testimony was a 17 photograph that he described as depicting himself and his 18 wife on their wedding day. 19 to introduce the picture as evidence of the marriage, but 20 she accepted petitioner s testimony describing the photo. 21 Later, during the government s cross-examination of 22 petitioner relating to statements during his credible fear Government officials then forced his wife to The only documentary evidence The IJ did not allow petitioner 6 1 interview, the IJ made an express finding that his testimony 2 was not credible, believable or factually accurate. 3 4 After petitioner s testimony was complete, the IJ issued an oral decision: 5 6 7 8 9 10 11 12 13 14 15 16 In a decision issued on the same day, the IJ reviewed 17 petitioner s testimony, characterized it as absurd and 18 just plain made . . . up from beginning to end, and 19 concluded that petitioner had submitted a frivolous 20 application for asylum . . . supported entirely by . . . 21 perjurious testimony. 22 BIA affirmed the IJ s decision without an opinion on January 23 15, 2003. 24 in this Court. 25 [N]ot only have I denied your applications[,] I have found your filing is entirely frivolous and therefore you will be barred for life from ever becoming legally resident in this country. . . . . . . . I believe the lies you have told to the [c]ourt are material and I believe they were told to the [c]ourt purely to secure an [i]mmigration benefit. Petitioner filed an appeal, but the Petitioner did not seek review of that decision On July 15, 2008, Zhang filed a motion with the BIA 26 seeking: (1) a stay of removal; and (2) to reopen his 27 removal proceedings. 28 exercise its sua sponte jurisdiction to reopen the removal Petitioner argued that the BIA should 7 1 proceedings, see 8 C.F.R. § 1003.2(a), because the IJ s 2 conclusion that his asylum application was frivolous was 3 invalid based on the BIA s intervening decision in In re 4 Y-L-, 24 I. & N. Dec. 151 (BIA 2007). 5 The BIA denied petitioner s motion for a stay of 6 removal two days later, on July 17, 2008, based on its 7 conclusion that there [was] little likelihood that the 8 motion [to reopen would] be granted. 9 removed to China by the Department of Homeland Security Petitioner was 10 ( DHS ) on July 22, 2008. 11 unaware of this fact, the BIA relied on its sua sponte 12 authority to grant petitioner s motion to reopen. 13 decision, the Board indicated that it did not necessarily 14 disagree with the [IJ s] ultimate finding[] that petitioner 15 had knowingly submitted a frivolous asylum application, but 16 it remanded for clarification based on In re Y-L-. 17 On September 10, 2008, apparently In that On remand, on January 22, 2009, the IJ terminated the 18 proceedings once she ascertained that petitioner was no 19 longer physically present in the United States. 20 counsel appealed to the BIA. 21 had previously erred by denying his request for a stay, and 22 that it should have granted his motion to reopen nunc pro Zhang s Counsel argued that the BIA 8 1 tunc to a date prior to his removal to avoid the application 2 of the departure bar. 3 review the argument that the departure bar conflicts with 4 the provisions of the INA relating to motions to reopen. He also preserve[d] for federal 5 On May 22, 2009, the BIA dismissed the appeal and 6 vacated its September 10, 2008 order reopening petitioner s 7 removal proceedings, reasoning that it did not have 8 jurisdiction to grant that motion because petitioner had 9 already been removed. In support of its jurisdictional 10 holding, the BIA cited the departure bar, 8 C.F.R. § 11 1003.2(d), and In re Armendarez-Mendez, 24 I. & N. Dec. 646 12 (BIA 2008). 13 the instant petition for review. 14 15 Following that decision, Zhang s counsel filed II. DISCUSSION This case requires us to consider the scope of the 16 BIA s jurisdiction to reopen otherwise-final removal 17 proceedings in response to a party s motion, where the 18 motion to reopen is deficient under the INA and instead asks 19 the Board to invoke its sua sponte authority. 20 we must decide whether the departure bar, 8 C.F.R. 21 § 1003.2(d), divests the BIA of jurisdiction to grant an 22 alien s motion to reopen based on the Board s sua sponte 9 Specifically, 1 authority, id. § 1003.2(a), where the movant has already 2 been removed from the country. 2 3 In In re Armendarez-Mendez, the BIA interpreted 8 4 C.F.R. § 1003.2 and answered that question in the 5 affirmative. 6 BIA s construction is not without flaws, we conclude that 7 its view is entitled to deference under the circumstances of 24 I. & N. Dec. at 653, 660. 2 Although the Petitioner concedes that he did not advance this contention during his appeal to the BIA. (See Pet r Br. 27 n.5.) However, the government has not raised a failure-toexhaust defense, thereby waiving it. See Lin Zhong v. U.S. Dep t of Justice, 480 F.3d 104, 120 (2d Cir. 2007). We may therefore reach the merits of petitioner s argument relating to the relationship between the BIA s sua sponte authority and the departure bar. We also note that petitioner has abandoned the argument that he presented to the BIA, based on William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), that the departure bar conflicts with the provisions of the INA relating to motions to reopen, see 8 U.S.C. § 1229a(c)(7). (See Pet r Br. 27 n.5.) In In re Armendarez-Mendez, 24 I. & N. Dec. at 653-60, the BIA rejected the reasoning of the William majority. This issue is presently the subject of a Circuit split. Compare Rosillo-Puga v. Holder, 580 F.3d 1147, 1159-60 (10th Cir. 2009) (rejecting the analysis of the William majority), Pena-Muriel v. Gonzales, 489 F.3d 438 441-43 (1st Cir. 2007) (rejecting the argument that the departure bar was impliedly repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRIRA ), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (Sept. 30, 1996)), and Mendiola v. Holder, 585 F.3d 1303, 1310 (10th Cir. 2009) (following Rosillo-Puga), with Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (holding that the departure bar cannot apply to cause the withdrawal of an administrative petition filed by a petitioner who has been involuntarily removed ). However, because petitioner has abandoned the argument, we do not reach it. 10 1 this case, and that the Board did not err when it vacated 2 its September 10, 2008 order on jurisdictional grounds. 3 further hold that petitioner has not demonstrated that he is 4 entitled to relief under the equitable doctrine of nunc pro 5 tunc. 6 petition for review is denied. We Accordingly, for the reasons set forth below, the 7 8 9 10 A. The Development of the BIA s Sua Sponte Authority and the Departure Bar 11 by the Attorney General in 1940. 12 Departmental Organization and Authority, 5 Fed. Reg. 3502, 13 3503, § 90.2 (Sept. 4, 1940). 3 The BIA was established through regulations promulgated 3 See Regulations Governing These regulations authorized Congress created the first federal agency focused on immigration the Office of the Superintendent of Immigration in § 7 of the Act of March 3, 1891, ch. 551, 26 Stat. 1084, 1085. The Office was part of the Treasury Department until 1903, when it was transferred to the Department of Commerce and Labor. See An Act To establish the Department of Commerce and Labor, Pub. L. No. 87, § 4, ch. 552, 32 Stat. 825, 826 (Feb. 14, 1903). In 1913, the agency was transferred to the newly created Department of Labor and divided into the Bureau of Immigration and the Bureau of Naturalization. See An Act To create a Department of Labor, Pub. L. No. 426, § 3, ch. 141, 37 Stat. 736, 737 (Mar. 4, 1913). The two Bureaus were combined in 1933 by President Roosevelt, and the consolidated entity was named the Immigration and Naturalization Service ( INS ). Exec. Order No. 6166, § 14 (June 10, 1933), reprinted following 5 U.S.C. § 901. In 1940, the INS was transferred to the Department of Justice. See Reorganization Plan No. V, 54 Stat. 1238 (effective June 14, 1940); see also Alien Registration Act of 1940, Pub. L. No. 670, § 37(a), ch. 439, 11 1 the Board to issue orders of deportation ; consider and 2 determine appeals ; and resolve motions for 3 reconsideration, reargument or reopening of a case after 4 the issuance of a final decision. 5 90.3(a)-(b), 90.10. 6 Id. at 3503-04, §§ In 1952, Congress enacted the INA, also known as the 7 McCarran-Walter Act. Pub. L. No. 82-414, ch. 414, 66 Stat. 8 163 (June 27, 1952). The INA charged the Attorney General 9 with the administration and enforcement of the Act, and 10 authorized him to establish such regulations . . . as he 11 deem[ed] necessary for carrying out [that] authority. 12 Id. § 103(a), 66 Stat. at 173. 13 congressional delegation, the Attorney General promulgated a 14 series of regulations defining the [a]ppellate 15 jurisdiction of the BIA and the [p]owers of the Board. 16 Immigration and Nationality Regulations, 17 Fed. Reg. 17 11,469, 11,475, § 6.1(b), (d) Pursuant to that (Dec. 19, 1952) (final rule 54 Stat. 670, 675 (June 28, 1940). In September 1940, the Attorney General changed the name of the Board of Review of the INS to the Board of Immigration Appeals. See Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503, § 90.2 (Sept. 4, 1940). See generally A Historical Guide to the U.S. Government 30508 (George Thomas Kurian et al., eds., 1998). Lastly, effective March 2003, the functions of the INS were transferred to DHS. See supra note 1. 12 1 codified at 8 C.F.R. § 6.1(b), (d) (1952)). Section 2 6.1(d)(1) of those regulations defined the General[] 3 [p]owers of the Board : 4 5 6 7 8 9 10 11 12 Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case . . . . 8 C.F.R. § 6.1(d)(1) (1952). 13 allowed for motions to reopen and for reconsideration of 14 Board decisions, and these regulations included the first 15 version of the departure bar. 16 after these regulations were promulgated, the BIA concluded 17 that the departure bar was a jurisdictional limitation on 18 its authority to consider a motion to reopen when the alien 19 is outside the United States. The 1952 regulations also See id. § 6.2. 4 Two years In re G-y-B, 6 I. & N. Dec. 4 Section 6.2 of the 1952 regulations provided, in pertinent part: 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 of such person from the United States occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. 8 C.F.R. § 6.2 (1952). 13 1 2 159, 160 (BIA 1954). In 1958, the Attorney General revised the regulations 3 relating to the BIA s authority to consider motions to 4 reopen. 5 Reg. 9115, 9118-19 (Nov. 26, 1958). 6 established what is now referred to as the BIA s sua sponte 7 authority by providing the Board with the power to reopen 8 proceedings and reconsider its decisions on its own 9 motion. See Miscellaneous Amendments to Chapter, 23 Fed. Id. at 9118, § 3.2. The revised regulations This BIA authority remained a 10 creature of Attorney General regulations not restricted or 11 modified by congressional enactments for more than thirty 12 years. 13 Congress amended the INA in 1961 in order to add, inter 14 alia, provisions relating to judicial review of the BIA s 15 decisions. 16 75 Stat. 650. 17 established the sole and exclusive procedure for [] the 18 judicial review of all final orders of deportation 19 heretofore or hereafter made against aliens within the 20 United States. 21 U.S.C. § 1105a(a) (1964) (repealed 1996)). 22 judicial review procedures adopted by Congress was a See Act of Sept. 26, 1961, Pub. L. No. 87-301, Relevant here is § 5(a) of the Act, which Id. § 5(a), 75 Stat. at 651 (codified at 8 14 Among the 1 provision similar to the departure bar regulation, which 2 stated that [a]n order of deportation or of exclusion shall 3 not be reviewed by any court if the alien . . . has departed 4 from the United States after the issuance of the order. 5 U.S.C. § 1105a(c) (1964) (emphasis added); see also In re 6 Armendarez-Mendez, 24 I. & N. Dec. at 649 ( [N]early a 7 decade after the departure bar rule went into effect, 8 Congress imposed a similar statutory restriction prohibiting 9 the United States courts of appeals from reviewing 10 deportation orders if the alien has departed from the 11 United States after issuance of the order. (quoting 8 12 8 U.S.C. § 1105a(c) (1964))). 13 Until 1990, this procedural scheme remained intact, and 14 the substance of the Attorney General s regulations 15 regarding motions to reopen went unchanged. 16 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 17 (Nov. 29, 1990), Congress directed the Attorney General to 18 issue regulations with respect to . . . the period of time 19 in which motions to reopen and to reconsider may be offered 20 in deportation proceedings, which regulations [should] 21 include a limitation on the number of such motions that may 22 be filed and a maximum time period for the filing of such 15 However, in the 1 motions. 2 issued this directive in order to reduce or eliminate 3 . . . abuses of regulations that, at that time, permitted 4 aliens to file an unlimited number of motions to reopen 5 without any limitations period. 6 400 (1995). 7 Id. § 545(d)(1), 104 Stat. at 5066. Congress Stone v. INS, 514 U.S. 386, Although the Attorney General expressed doubt about the 8 need to impose such limitations because there was little 9 evidence of abuse, she ultimately promulgated regulations 10 that, subject to certain exceptions, permitted an alien to 11 file one motion to reopen within 90 days. 12 Mukasey, 128 S. Ct. 2307, 2315 (2008) (citing Executive 13 Office for Immigration Review; Motions and Appeals in 14 Immigration Proceedings, 61 Fed. Reg. 18,900, 18,901, 18,905 15 (Apr. 29, 1996) (final rule codified at 8 C.F.R. § 3.2(c) 16 (effective July 1, 1996))); see also Iavorski v. INS, 232 17 F.3d 124, 129, 131 (2d Cir. 2000). 18 regulations retained additional mechanisms whereby 19 otherwise untimely motions could still be considered when 20 the circumstances so required. 21 Chief among these mechanisms were the regulations providing 22 authority to both an IJ and the BIA to reopen, sua sponte, a 16 Dada v. However, the revised Iavorski, 232 F.3d at 131. 1 proceeding. 2 (2000)). 5 3 Id. (citing 8 C.F.R. §§ 3.2(a), 3.23(b)(1) Approximately three months later, Congress codified 4 some but not all of the Attorney General s 1996 5 regulations regarding motions to reopen. 6 Immigration Reform and Immigrant Responsibility Act of 1996 7 ( IIRIRA ), Pub. L. No. 104-208, div. C, § 304, 110 Stat. 8 3009-546, 3009-587 (Sept. 30, 1996). 9 bar nor the regulation granting the BIA sua sponte authority See Illegal Neither the departure 10 was mentioned in the statute in any fashion. 11 Armendarez-Mendez, 24 I. & N. Dec. at 654. 12 repealed the INA s judicial review provisions including 13 the provision precluding post-departure judicial review of 14 BIA orders and enacted new rules for that process. 15 Pub. L. No. 104-208, div. C, § 306, 110 Stat. at 3009-607 - 5 See In re But the IIRIRA See In addition to the BIA s sua sponte authority and the departure bar, 8 C.F.R. § 1003.2(a), (d), the Attorney General s regulations vest in IJs similar authority with analogous departure limitations, id. § 1003.23(b)(1) ( An [IJ] may upon his or her own motion at any time . . . reopen or reconsider any case in which he or she has made a decision . . . . Any departure from the United States . . . occurring after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. ). These regulations are substantively identical in terms of the authority they provide to IJs and the BIA to consider motions to reopen. In re Armendarez-Mendez, 24 I. & N. Dec. at 650. 17 1 3009-612. 2 longer foreclosed from seeking judicial review of a BIA 3 order after he or she departs from the country. 4 128 S. Ct. at 2320. 5 Under these revisions to the INA, an alien is no See Dada, The Attorney General promulgated new regulations based 6 on the IIRIRA on March 6, 1997. See Inspection and 7 Expedited Removal of Aliens; Detention and Removal of 8 Aliens; Conduct of Removal Proceedings; Asylum Procedures, 9 62 Fed. Reg. 10,312 (Mar. 6, 1997). Although some 10 commenters on the proposed regulations had opined that the 11 IIRIRA impliedly invalidated the departure bar, the Attorney 12 General rejected that view: 13 supports reversing the long established rule that a motion 14 to reopen or reconsider cannot be made in immigration 15 proceedings by or on behalf of a person after that person s 16 departure from the United States. 17 Consequently, the Attorney General retained in her 18 regulations both the departure bar and the BIA s authority 19 to consider a motion to reopen sua sponte. 20 10,330-31 (final rule codified at 8 C.F.R. § 3.2(a), (d) 21 (1997)). 6 No provision of the [IIRIRA] 6 Id. at 10,321. See id. at In response to the Homeland Security Act of 2002, see supra note 1, the Attorney General reorganized title 8 of 18 1 2 B. The BIA s Application of the Departure Bar In the present case, the BIA concluded that it did not 3 have jurisdiction to enter its September 10, 2008 order 4 reopening petitioner s removal proceedings because 5 petitioner had already been removed from the United States. 6 The Board vacated the order and dismissed the appeal, citing 7 the departure bar and In re Armendarez-Mendez. 8 now argues that the departure bar regulation goes against 9 the plain language of the portion of the regulation Petitioner 10 governing the BIA s sua sponte authority. 11 rejected a similar contention in In re Armendarez-Mendez. 12 We hold that the BIA s interpretation is entitled to 13 deference and that it requires us to reject petitioner s 14 argument. 15 However, the BIA Under the current version of the INA, an alien who is 16 to be removed pursuant to an order of the BIA typically has 17 ninety days after the Board s decision becomes final to file the Code of Federal Regulations to reflect the transfer of the functions of the INS from the Department of Justice to the DHS. See Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003). As a result, the regulation governing the BIA s sua sponte authority and the applicable departure bar was moved without changes from 8 C.F.R. § 3.2 (2002), to 8 C.F.R. § 1003.2 (2009). 19 1 a motion to reopen. 2 (c)(7)(C)(i); see also Ali v. Gonzales, 448 F.3d 515, 517 3 (2d Cir. 2006) (per curiam). 7 4 was untimely in this regard, as it was filed approximately 5 five years after the removal order became final. 6 See 8 U.S.C. § 1229a(c)(7)(A), Petitioner s motion to reopen The INA also enumerates statutory exceptions that allow 7 this ninety-day time limit to be excused or extended. 8 example, an otherwise-untimely motion to reopen may be 9 For permitted if the alien seeks asylum based on changed 10 country conditions arising in the country of nationality or 11 the country to which removal has been ordered. 12 1229a(c)(7)(C)(ii). 13 deadline for filing a motion to reopen is subject to 8 U.S.C. § We have also held that the ninety-day 7 Section 1229a(c)(7)(A) titled Motions to Reopen, In general provides: An alien may file one motion to reopen [removal] proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv). 8 U.S.C. § 1229a(c)(7)(A). Section 1229a(c)(7)(C)(i) sets forth the general deadline for such a motion: Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal. Id. § 1229a(c)(7)(C)(i). 20 1 equitable tolling under appropriate circumstances. 2 Iavorski, 232 F.3d at 134 (holding that the limitations 3 period for untimely motions to reopen can be equitably 4 tolled to accommodate claims of ineffective assistance of 5 counsel). 6 rely on any of the INA s statutory exceptions to the ninety- 7 day time limit, and he did not argue that he is entitled to 8 equitable tolling. 9 See However, petitioner s motion to reopen did not Instead, petitioner asked the BIA to invoke its sua 10 sponte authority to reopen his removal proceedings. 11 wellspring of this authority resides, as it always has, in a 12 regulation promulgated by the Attorney General: 13 may at any time reopen or reconsider on its own motion any 14 case in which it has rendered a decision. . . . 15 decision to grant or deny a motion to reopen or reconsider 16 is within the discretion of the Board, subject to the 17 restrictions of this section. 18 (emphases added). 8 8 The The Board The 8 C.F.R. § 1003.2(a) However, after the Board realized that Section 1003.2(a) provides: General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, 21 1 petitioner had been removed, it took the view that it was 2 divested of jurisdiction to consider his motion based on the 3 departure bar, which states that [a]ny departure from the 4 United States, including the . . . removal of a person who 5 is the subject of . . . removal proceedings, occurring after 6 the filing of a motion to reopen or a motion to reconsider, 7 shall constitute a withdrawal of such motion. 8 § 1003.2(d). 9 9 8 C.F.R. The basis for the BIA s interpretation of the departure must be in the form of a written motion to the Board. 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. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief. 8 C.F.R. § 1003.2(a). 9 Section 1003.2(d) provides: 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 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 withdrawal of such motion. 8 C.F.R. § 1003.2(d). 22 1 bar as a jurisdictional limitation on its sua sponte 2 authority is In re Armendarez-Mendez. 3 noted that it has had regulatory power to entertain 4 motions, subject to such limitations as the Attorney General 5 may prescribe, since 1940, but that there was no statute 6 delineating the scope or limits of that power until 7 Congress passed the Immigration Act of 1990. 8 Dec. at 647, 654. 9 as 1954 and in an unbroken string of precedents extending 10 over 50 years, it has construed the departure bar rule as 11 imposing a limitation on [its] jurisdiction to entertain 12 motions filed by aliens who had departed the United States. 13 Id. at 648 (citing, inter alia, In re G-y-B, 6 I. & N. Dec. 14 at 159-60). 15 reaffirm[ed] its established understanding of the 16 departure bar as a jurisdictional limitation on its sua 17 sponte authority, and it rejected the Ninth Circuit s 18 construction of the departure bar in Zi-Xing Lin v. 19 Gonzales, 473 F.3d 979, 981-82 (9th Cir. 2007) (relying on 20 the rule of lenity to hold that 8 C.F.R. § 1003.23(b)(1) 21 does not deprive an IJ of jurisdiction to consider a motion 22 to reopen filed by a removed alien). In that case, the BIA 24 I. & N. Moreover, the Board reasoned, [a]s early Based on those first principles, the BIA 23 In re Armendarez- 1 2 Mendez, 24 I. & N. Dec. at 650-53, 660. 10 We review de novo legal questions decided by the BIA. 3 See Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d 4 Cir. 2007). 5 BIA s interpretation of the applicable regulation in In re 6 Armendarez-Mendez, unless we find that interpretation to be 7 plainly erroneous or inconsistent with the regulation. 8 Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010) (internal 9 quotation marks omitted); see also Auer v. Robbins, 519 U.S. 10 However, we owe substantial deference to the 452, 461 (1997). 10 More recently, the BIA has placed a caveat on its conclusion that the departure bar deprives it of jurisdiction to consider motions to reopen. In In re Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009), the BIA took the position that an IJ s application of a different departure bar regulation, 8 C.F.R. § 1003.23(b)(1), in a case involving an inoperative in absentia deportation order would give that order greater force than it is entitled to by law. 25 I. & N. Dec. at 59-60 (citing 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2)). Therefore, in the BIA s view, an alien s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the [IJ] of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised on lack of notice. Id. at 60. The removal order in this case was not entered with petitioner in absentia, and petitioner does not argue that he lacked notice of the proceedings (at which he was present and represented by counsel). Therefore, any limitation on In re Armendarez-Mendez resulting from the BIA s subsequent decision in In re Bulnes-Nolasco is not material to our analysis. 24 1 To be sure, the BIA s construction is anything but 2 airtight. With respect to the departure bar, it is 3 linguistically awkward to consider the forcible removal of 4 an alien as constitut[ing] a withdrawal of any pending 5 motions filed by the alien, 8 C.F.R. § 1003.2(d). 6 Marin-Rodriguez v. Holder, --- F.3d ----, No. 09-3105, 2010 7 WL 2757321, at *2 (7th Cir. July 14, 2010) (reasoning that 8 the departure bar regulation amounts to saying that, by 9 putting an alien on a bus, the agency may withdraw its See 10 adversary s motion ); cf. Madrigal v. Holder, 572 F.3d 239, 11 245-46 (6th Cir. 2009) (Kethledge, J., concurring). 12 when the departure bar is read in isolation, it is not 13 readily apparent why the withdrawal that it effects is 14 jurisdictional in nature. 15 2757321, at *3. 16 governing the BIA s sua sponte authority permits the Board 17 to exercise that power at any time. 18 But the BIA apparently understands the phrase at any time 19 to mean at any time that the alien in question is 20 physically present in the United States. 21 In re Armendarez-Mendez is couched in jurisdictional terms 22 without qualification, it is unclear why a withdrawal And, See Marin-Rodriguez, 2010 WL Moreover, the portion of the regulation 25 8 C.F.R. § 1003.2(a). Finally, although 1 under the departure bar would deprive the BIA of authority 2 to either: 3 unprompted by a person who has been removed; or (2) consider 4 a motion to reopen filed by DHS rather than a person who is 5 being, or has been, removed. 6 Marin-Rodriguez the BIA appears to have resolved a motion 7 for reconsideration filed by DHS pursuant to the INA, 8 despite knowing full well that the departure bar was in play 9 because the petitioner had already been removed. 10 11 (1) act in a purely sua sponte fashion, For example, in See Marin-Rodriguez, 2010 WL 2757321, at *1. Though we do not intend to create an exhaustive list of 12 our concerns through these examples, the point is clear: 13 Were we writing on a blank slate, we might reach a different 14 conclusion than that of the BIA regarding the relationship 15 between these portions of 8 C.F.R. § 1003.2. 16 of In re Armendarez-Mendez, we are not presented with a 17 blank slate. 18 as a jurisdictional limitation on its sua sponte authority. 19 Under the circumstances of this case where petitioner 20 filed an otherwise-barred motion to reopen and asked the BIA 21 to invoke its sua sponte authority we cannot say that the 22 Board s construction is plainly erroneous. But, in light The BIA tells us that the departure bar serves 26 1 First, even before the BIA offered its precedential 2 interpretation, we indicated, in dicta, that an alien s 3 voluntary departure from the country would result in a 4 forfeiture of the right to file a motion to reopen. 5 v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006) (citing 8 6 C.F.R. § 1003.2(d)). 7 See Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 8 2006); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th 9 Cir. 2003). Singh And we were not alone in this regard. But see Zi-Xing Lin, 473 F.3d at 981-82. 10 Moreover, following In re Armendarez-Mendez, two Circuits 11 have reached conclusions similar to that of the BIA and held 12 that the departure bar deprives the Board of authority to 13 consider a motion to reopen that would otherwise be 14 defective under the INA. 15 288 (5th Cir. 2010); Mendiola v. Holder, 585 F.3d 1303, 1310 16 (10th Cir. 2009); Rosillo-Puga v. Holder, 580 F.3d 1147, 17 1159-60 (10th Cir. 2009); Ovalles v. Holder, 577 F.3d 288, 18 296-97 (5th Cir. 2009). 19 interpreted 8 C.F.R. § 1003.2 in a fashion similar to the 20 BIA supports the conclusion that the Board s view in In re 21 Armendarez-Mendez is not plainly erroneous. 22 See Toora v. Holder, 603 F.3d 282, That our Court and others have Second, although certain language from In re 27 1 Armendarez-Mendez cuts broadly, we need only examine the 2 merits of the Board s position with respect to the situation 3 presented here. 4 removal proceedings became final, he filed a motion to 5 reopen that asked the BIA to invoke its sua sponte 6 authority. 7 General s decision to provide the BIA with such authority 8 was a valid use of his rulemaking power under the INA. 9 petitioner has not argued that the sua sponte power itself Approximately five years after petitioner s There is no dispute here that the Attorney And 10 is inconsistent with the statute. 11 surprise, as there was no statutory basis for his motion. 12 Be that as it may, the BIA s position in In re Armendarez- 13 Mendez has more force in the context of a motion in which an 14 alien asks the BIA to rely on jurisdiction that comes from a 15 regulation rather than a statute. 16 possesses the authority to vest sua sponte jurisdiction in 17 the BIA and it is undisputed here that he does then it 18 stands to reason that he would also have the authority to 19 limit that jurisdiction and define its contours through, 20 among other things, the departure bar. 21 22 This comes as no If the Attorney General Third, when the text of § 1003.2 is viewed as a whole, it is not unreasonable to interpret the departure bar as a 28 1 limitation on the BIA s sua sponte authority. Cf. In re 2 Ames Dep t Stores, Inc., 582 F.3d 422, 427 (2d Cir. 2009) 3 (noting that statutory interpretation calls for an 4 examination of the specific context in which [the] language 5 is used, and the broader context of the statute as a whole 6 (internal quotation marks omitted)). 7 1003.2, which is titled General, refers to the Board s 8 authority to not only reopen a proceeding sua sponte, but 9 also to resolve motions to reopen or reconsider filed by Paragraph (a) of § 10 either DHS or the party affected by the decision. 11 C.F.R. § 1003.2(a). 12 conferred upon the BIA by the Attorney General in 13 § 1003.2(a), which may be exercised at any time, is not 14 absolute. 15 BIA s sua sponte authority is subject to the restrictions 16 of . . . section [1003.2]. 17 departure bar, codified within this section at paragraph 18 (d), may reasonably be interpreted as a restriction[] on 19 the [g]eneral sua sponte provision in paragraph (a). 20 see also Navarro-Miranda, 330 F.3d at 676. 21 least insofar as the BIA s sua sponte authority is concerned 22 and we need not go any further in this case the Board s Id. 8 However, the [g]eneral authority Rather, paragraph (a) makes clear that the Id. 29 The more-specific Id.; Therefore, at 1 interpretation of the departure bar as a jurisdictional 2 limitation is not plainly inconsistent with the terms of 8 3 C.F.R. § 1003.2 when the regulation is read as a whole. 4 Finally, the BIA s construction is supported by the 5 historical evolution of this regulation. At least since the 6 Alien Registration Act of 1940, Congress has delegated to 7 the Attorney General broad authority to establish rules and 8 regulations to enforce the nation s immigration laws. 9 Pub. L. No. 670, § 37(a), ch. 339, 54 Stat. at 675. See Relying 10 on that congressional delegation, the Attorney General 11 established the departure bar in 1952 and later empowered 12 the BIA to reopen immigration proceedings sua sponte. 13 1954, the Board has taken the position that the departure 14 bar operates as a limitation on its jurisdiction to consider 15 motions to reopen. 16 This limitation must be understood in connection with the 17 BIA s position within the larger immigration bureaucracy. 18 In re Armendarez-Mendez, 24 I. & N. Dec. at 656. 19 divesting the BIA of authority over persons removed from the 20 country, the Attorney General preserved the jurisdictional 21 primacy of DHS and the State Department over the inspection 22 and admission of aliens from abroad. Since See In re G-y-B, 6 I. & N. Dec. at 160. 30 Id. By 1 Congress, through decades of silence on this subject 2 despite repeated amendments to the INA, 11 has acquiesced in 3 the BIA s understanding of the authority granted to it by 4 the Attorney General. 5 v. Schor, 478 U.S. 833, 846 (1986); United Airlines, Inc. v. 6 Brien, 588 F.3d 158, 172-73 (2d Cir. 2009); see also 7 William, 499 F.3d at 344 (Williams, C.J., dissenting) 8 ( Given the INA s silence with respect to the departure bar, 9 I understand Congress s failure to explicitly repeal 8 See Commodity Futures Trading Comm'n 10 C.F.R. § 1003.2(d) as acquiescence to its continued 11 operation. ). 12 Pub. L. No. 82-414, 66 Stat. at 163, Congress provided no 13 limitations on the scope of the BIA s authority to consider 14 motions to reopen until the Immigration Act of 1990, Pub. L. 15 No. 101-649, § 545(d)(1), 104 Stat. at 5066. 16 Congress left it to the Attorney General to consider in the 17 first instance the policy decisions regarding appropriate 18 limitations to be imposed on these motions. Although the INA was enacted in 1952, see 11 Even then, See id. When See, e.g., IIRIRA, Pub. L. No. 104-208, 110 Stat. at 3009-546 (Sept. 30, 1996); Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. at 4978 (Nov. 29, 1990); Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6 1986); Immigration and Nationality Act Amendments of 1976, Pub. L. No. 94-571, 90 Stat. 2703 (Oct. 20, 1976); Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911. 31 1 the Attorney General responded to that legislative mandate 2 in 1996, she saw fit to retain the departure bar. 3 C.F.R. § 3.2 (1996). 4 See 8 In the same year, 1996, Congress revised the INA by 5 passing the IIRIRA. See Pub. L. No. 104-208, div. C, 110 6 Stat. at 3009-546. 7 of the INA that precluded judicial review of a BIA decision 8 after an alien leaves the country, see id. § 306, 110 Stat. 9 at 3009-607, the Act was silent as to both the departure bar Although the IIRIRA repealed the portion 10 and the BIA s sua sponte authority. There is nothing 11 incongruous about retaining the latter but excising the 12 former, for judicial review of an alien s petition for 13 review with respect to a final order of removal is not the 14 same as BIA review of a motion to reopen. 15 F.3d at 343 (Williams, C.J., dissenting) (emphases in 16 original). 17 after the alien leaves the United States, Congress empowered 18 us to oversee, inter alia, the manner in which the BIA 19 polices its jurisdictional boundaries. 20 congressional silence in the IIRIRA regarding § 1003.2 is 21 not inconsistent with the BIA s position. 22 all of these reasons, we cannot conclude that In re William, 499 By allowing courts to review BIA decisions even 32 In any event, the Therefore, for 1 Armendarez-Mendez, as it applies to the facts of this case, 2 is plainly erroneous. 3 There is some superficial tension between our 4 conclusion and a recent decision of the Seventh Circuit. 5 See Marin-Rodriguez, 2010 WL 2757321, at *3-4. 6 Marin-Rodriguez, the petitioner filed a motion for 7 reconsideration approximately one month after the BIA 8 dismissed his appeal. 9 case, the motion was timely under the INA. See id. at *1. In Thus, unlike in this See 8 U.S.C. § 10 1229a(c)(7)(C)(i). 11 remanded to the IJ, apparently unaware at the time that the 12 petitioner had been removed from the country while the 13 motion was pending. 14 at *1. 15 its own, which the BIA granted based on the departure bar. 16 Id. 17 The Board granted the motion and See Marin-Rodriguez, 2010 WL 2757321, The DHS then filed a motion for reconsideration of Because the petitioner s only motion for 18 reconsideration was timely under the INA, the facts of 19 Marin-Rodriguez resemble those considered by the Fourth 20 Circuit in William. 21 Seventh Circuit rejected the Fourth Circuit s 22 understanding of the INA. See 499 F.3d at 334 n.5. But the Marin-Rodriguez, 2010 WL 33 1 2757321, at *2. Referring to the Supreme Court s analysis 2 in Dada v. Mukasey, the Marin-Rodriguez court reasoned as 3 follows: 4 5 6 7 8 9 10 11 12 13 14 15 If the Supreme Court sees no incompatibility between a statutory right to apply for [voluntary departure] and an implied-withdrawal approach [to situations where an alien seeks to reopen his removal proceedings after agreeing to voluntarily depart], it is hard to fault the Board for adopting a similar view. Thus an alien with a right to move for reconsideration [under the INA] may give up that right by a specified act [such as departing from the country]. Id. 12 16 validity of the particular condition the Board has 17 attached on motions to reopen i.e., physical presence in 18 the United States must be ascertained on other grounds. Nevertheless, the court went on to reason that the 12 In Dada, the Supreme Court confronted the tension between: (1) the time period that an alien is afforded to leave the country if he agrees to depart voluntarily, which may be as short as sixty days, see 8 U.S.C. § 1229c(b)(2); and (2) the ninety-day time period that an alien is afforded to file a motion to reopen his removal proceedings, see 8 U.S.C. § 1229a(c)(7)(C)(i). The Court held that to safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. Dada, 128 S. Ct. at 2319. The Court also suggested that [a] more expeditious solution to the issue in that case might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture. Id. at 2320. However, the departure bar was not placed in issue by the parties in Dada, and the Court expressly declined to consider it. See id. 34 1 Id. 2 With the issue thus framed, the court went on to hold 3 that, [a]s a rule about subject-matter jurisdiction, 4 § 1003.2(d) is untenable. 5 although the INA authorizes the Board to reconsider or 6 reopen its own decisions, the statute does not make that 7 step depend on the alien s presence in the United States. 8 Id. 9 statute undergirds a conclusion that the Board lacks Id. at *3. It reasoned that, [S]ince [the IIRIRA was passed in] 1996 nothing in the 10 jurisdiction which is to say, adjudicatory competence 11 to issue decisions that affect the legal rights of departed 12 aliens. 13 Circuit then cited Union Pacific Railroad v. Brotherhood of 14 Locomotive Engineers, 130 S. Ct. 584 (2009), for the 15 proposition that an administrative agency is not entitled 16 to contract its own jurisdiction by regulations or by 17 decisions in litigated proceedings. 18 WL 2757321, at *3. 19 dispositive in favor of the holding in William though on 20 a rationale distinct from the [F]ourth [C]ircuit s. 21 *3. 22 Id. (internal citation omitted). The Seventh Marin-Rodriguez, 2010 In the court s view, Union Pacific was Id. at Properly understood, the analysis in Marin-Rodriguez 35 1 does not conflict with ours. The point is made clear by 2 reference to the source of BIA jurisdiction that was invoked 3 by the petitioner in each case. 4 petitioner s motion for reconsideration was explicitly 5 authorized by the INA; Congress, by enacting the IIRIRA, 6 gave the BIA jurisdiction to consider one such motion if it 7 is filed within ninety days after the removal decision 8 becomes final. 9 case, however, petitioner was not eligible to avail himself In Marin-Rodriguez, the See 8 U.S.C. § 1229a(c)(7)(C)(i). In this 10 of this statutory entitlement under the INA. 11 support of his motion, he invoked the regulation in which 12 the Attorney General authorized the BIA to consider motions 13 to reopen sua sponte. 14 Instead, in See 8 C.F.R. § 1003.2(a). Consequently, we need not decide if the Attorney 15 General, by promulgating § 1003.2, has improperly 16 contract[ed] the jurisdiction given to the BIA by Congress 17 pursuant to the IIRIRA. 18 at *3. 19 note 2. 20 always has been a creature of regulations promulgated by 21 the Attorney General pursuant to a valid delegation from 22 Congress. Marin-Rodriguez, 2010 WL 2757321, We leave that question for another day. See supra The sua sponte power that is at issue here is and See 8 U.S.C. § 1103(g)(2). 36 The Attorney 1 General s power to limit this aspect of the BIA s 2 jurisdiction is subsumed within his more expansive power to 3 create it. 4 departure bar as a limitation on its sua sponte 5 jurisdiction, as opposed to its jurisdiction to consider 6 timely motions to reopen under the INA, cannot be said to be 7 untenable. Therefore, the BIA s understanding of the 8 In reaching this conclusion, we are mindful of the 9 admonition from Union Pacific that the word jurisdiction 10 has been used by courts . . . to convey many, too many, 11 meanings, and that profligate use of the term is to be 12 avoided. 13 for a Better Env t, 523 U.S. 83, 90 (1998)). 14 Pacific, the Supreme Court considered the nature of 15 provisions in the Railway Labor Act ( RLA ) that required 16 parties to labor disputes to attempt to reach a settlement 17 in conference before submitting the matter to arbitration 18 before the National Railroad Adjustment Board ( NRAB ). 19 id. at 591-92 & n.3 (citing 45 U.S.C. § 152 Second, Sixth). 20 The NRAB had characterized the in conference requirement 21 as a limitation on its jurisdiction, and the Supreme Court 22 disagreed. 130 S. Ct. at 596 (quoting Steel Co. v. Citizens 37 In Union See 1 Congress vested the NRAB with jurisdiction over all 2 disputes between carriers and their employees growing out 3 of grievances or out of the interpretation or application of 4 agreements concerning rates of pay, rules, or working 5 conditions. 6 339 U.S. 239, 240 (1950) (emphasis added) (quoting 45 U.S.C. 7 § 153 First (i)). 8 authority to adopt rules of jurisdictional dimension. 9 Union Pac., 130 S. Ct. at 597 (citing 45 U.S.C. § 153 First Slocum v. Delaware, Lackawanna & W. R.R. Co., Moreover, Congress gave the [NRAB] no 10 (v)). 11 the Court held that the RLA s in conference requirement 12 did not limit the NRAB s statutory jurisdiction and the NRAB 13 lacked authority to characterize it in that fashion. 14 id. at 598. 15 processing rule, and any defenses based on non-compliance 16 with it are forfeitable. 17 Based largely on the absence of such a delegation, See As such, the requirement is merely a claim- Unlike in Union Pacific, this is not an instance where 18 a statute vests an agency with broad authority that the 19 agency has declined to exercise. 20 jurisdiction is established in the statute that created it 21 and the NRAB s rulemaking authority is rather limited, 22 Congress delegated the authority to define some aspects of 38 Whereas the NRAB s 1 the BIA s jurisdiction to the Attorney General. Compare 45 2 U.S.C. § 153 First (v) (authorizing the NRAB to adopt such 3 rules as it deems necessary to control proceedings before 4 the respective divisions and not in conflict with the 5 provisions of this section ), with 8 U.S.C. § 1103(g)(2) 6 (authorizing the Attorney General to establish such 7 regulations, prescribe such forms of bond, reports, entries, 8 and other papers, issue such instructions, review such 9 administrative determinations in immigration proceedings, 10 delegate such authority, and perform such other acts as the 11 Attorney General determines to be necessary for carrying out 12 this section (emphasis added)). 13 case that the delegation to the Attorney General includes 14 the authority to promulgate regulations defining indeed, 15 expanding the BIA s jurisdiction to consider motions to 16 reopen otherwise-final removal proceedings. 17 has not argued that the manner in which the Attorney General 18 has chosen to define the BIA s jurisdiction conflicts with 19 the INA or leads to some sort of interpretive problem under 20 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 21 Inc., 467 U.S. 837 (1984). 22 analytical approach taken by the Supreme Court in Union It is undisputed in this And petitioner Thus, we are mindful of the 39 1 Pacific, as well as that of the Seventh Circuit in Marin- 2 Rodriguez, but the holdings in those cases are inapposite. 3 Therefore, we hold that the BIA is not plainly 4 erroneous in its position, expressed in In re Armendarez- 5 Mendez, that the departure bar limits its sua sponte 6 jurisdiction. 7 deference with respect to that view, it did not err in 8 concluding that § 1003.2(d) deprived it of authority to 9 consider petitioner s motion to reopen after he was removed Accordingly, because the Board is entitled to 10 from the country. 11 C. 12 Nunc Pro Tunc Relief Petitioner also argues that, as a matter of equity, he 13 is entitled to nunc pro tunc relief in order to avoid the 14 application of the departure bar. 13 15 relief is warranted because the BIA erred by denying his 16 motion for a stay of removal on July 17, 2008. 17 been granted, petitioner contends, he would not have been 18 removed from the country prior to the Board s order granting 13 He asserts that this Had the stay The phrase nunc pro tunc means, literally, now for then. Iouri v. Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006) (internal quotation marks omitted). When a matter is adjudicated nunc pro tunc, it is as if it were done as of the time that it should have been done. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004); accord Blake v. Carbone, 489 F.3d 88, 94 n.5 (2d Cir. 2007). 40 1 his motion to reopen. 2 appropriate remedy is that the BIA s September 10, 2008 3 order, which reopened his removal proceedings and remanded 4 the case for clarification of the IJ s finding that his 5 asylum application was frivolous, should have been granted 6 nunc pro tunc to the date of the erroneous denial of his 7 motion for a stay of removal. 8 9 Therefore, in petitioner s view, the (Pet r Br. 22.) It is . . . beyond question that an award of nunc pro tunc may, in an appropriate circumstance, be granted as a 10 means of rectifying error in immigration proceedings. 11 Edwards v. INS, 393 F.3d 299, 309 (2d Cir. 2004) (emphasis 12 added, footnote omitted). 13 tunc is a far-reaching equitable remedy applied in 14 certain exceptional cases, typically aimed at 15 rectify[ing] any injustice [to the parties] suffered by 16 them on account of judicial [or agency] delay. 17 Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006) (quoting 18 Iavorski, 232 F.3d at 130 n.4 and Weil v. Markowitz, 829 19 F.2d 166, 175 (D.C. Cir. 1987)). 20 decided whether the doctrine of nunc pro tunc is available 21 as a means of providing equitable relief where the BIA is 22 divested of jurisdiction by the departure bar to consider an However, the doctrine of nunc pro 41 Iouri v. We have not previously 1 alien s motion to reopen. To our knowledge, the BIA has not 2 expressed a view on this question, either. 14 3 we need not resolve that issue in this case. 4 arguendo, that the departure bar does not foreclose 5 equitable relief, petitioner has not demonstrated that a 6 nunc pro tunc remedy is warranted. Nevertheless, Even assuming, 7 Petitioner relies principally on Edwards v. INS. 8 There, the BIA denied three aliens an opportunity to apply 9 for § 212(c) relief, i.e., a waiver of deportation, 15 10 based on an interpretation of the INA that we later deemed 14 The availability of nunc pro tunc relief to a removed alien, at least under certain circumstances, would be consistent with some aspects of the BIA s analysis in In re Bulnes-Nolasco, 25 I. & N. Dec. at 59-60. 15 The phrase § 212(c) relief, as used in Edwards, referred to waivers of deportation under the INA, 8 U.S.C. § 1182(c) (1994) (repealed 1996). Aliens were required to demonstrate three criteria in order to be eligible for § 212(c) relief: 1) that they possessed lawful permanent resident status; 2) that they had been lawfully domiciled in the United States for seven or more years; and 3) if they had been convicted of an aggravated felony or felonies, that they had served less than five years in prison on those aggravated felony offenses. Edwards, 393 F.3d at 307. In the IIRIRA, Congress replaced § 212(c) relief with a new form of discretionary relief known as cancellation of removal. Edwards, 393 F.3d at 302 & n.4 (citing 8 U.S.C. § 1229b). 42 1 to be legally erroneous, see St. Cyr v. INS, 229 F.3d 406, 2 418 (2d Cir. 2000), aff d 533 U.S 289, 326 (2001); Henderson 3 v. INS, 157 F.3d 106, 130 (2d Cir. 1998). 4 F.3d at 303-06. 5 212(c) relief, each petitioner accrued more than five years 6 imprisonment, which rendered them independently ineligible 7 for the waiver under the INA as it existed at the time. 8 id. at 307 (citing 8 U.S.C. § 1182(c) (1994) (repealed 9 1996)). See Edwards, 393 After the BIA erroneously denied the § See Following the decisions in Henderson and St. Cyr, 10 the Edwards petitioners asked the BIA to reopen their 11 immigration proceedings and to reconsider whether they were 12 eligible for § 212(c) relief. 13 applications were denied, however, on the alternative basis 14 that each petitioner had been incarcerated for more than 15 five years. 16 See id. at 303. These See id. at 303-06. In Edwards, we rejected the application of the INA s 17 five-year bar and concluded that, under the doctrine of nunc 18 pro tunc, the petitioners were entitled to apply for § 19 212(c) relief based on the facts as they existed at the time 20 of their initial, erroneously denied applications. 21 at 312. 22 [should] ordinarily be available where agency error would See id. We held that an award of nunc pro tunc relief 43 1 otherwise result in an alien being deprived of the 2 opportunity to seek a particular form of deportation 3 relief. 4 would not result in an alien being deprived of the 5 opportunity to seek deportation relief where the alien would 6 have independently been barred at the time of the error from 7 applying for the form of relief at issue. 8 (emphasis in original). 9 Id. at 310-11. On the other hand, agency error Id. at 311 n.15 Petitioner seeks to attribute error to the BIA s denial 10 of his request for a stay of removal. 11 aspect of his motion, the Board reasoned that it ha[d] 12 concluded that there [was] little likelihood that the motion 13 [to reopen would] be granted. 14 there is no question that the BIA erred in issuing this 15 decision because the Board ultimately granted the motion to 16 reopen, notwithstanding its initial characterization of the 17 submission as having little likelihood of success. 18 Br. 24.) 19 In denying that Petitioner asserts that (Pet r This contention, though flawed as a matter of formal 20 logic, is not without intuitive appeal. 21 Ct. at 2320 (suggesting that it may constitute an abuse of 22 discretion for the BIA to deny a motion for a stay of 44 Cf. Dada, 128 S. 1 removal where the motion states nonfrivolous grounds for 2 reopening ). 3 principles of equity favored a nunc pro tunc remedy in 4 response to a significant error by the BIA. 5 309. 6 constitutional dimension: 7 denial of the opportunity to apply for § 212(c) relief may 8 constitute a due process violation. 9 United States v. Copeland, 376 F.3d 61, 70-71 (2d Cir. 2004) However, in Edwards we concluded that 393 F.3d at There, the significan[ce] of the error had a We noted that an erroneous Id. at 308-09 (citing 10 and United States v. Sosa, 387 F.3d 131, 138 (2d Cir. 11 2004)). 12 petitioner s application for a stay of removal, it must be 13 remembered that: 14 on the Board s entirely discretionary sua sponte 15 authority, Ali, 448 F.3d at 518; 16 and (2) because the 16 motion was based on a 2007 BIA decision, In re Y-L-, that 17 was issued after petitioner s 2001 merits hearing, the 18 motion did not, strictly speaking, call into question the 19 merits or procedure underlying the IJ s findings, cf. NLRB By contrast, in assessing the BIA s denial of (1) petitioner s motion to reopen relied 16 We note that questions relating to the manner in which the BIA exercises its sua sponte authority, which we lack jurisdiction to review, are distinct from questions relating to the BIA s understanding of the regulation governing the scope of this authority, which present interpretive issues that are squarely within our province. 45 1 v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) 2 ( Appellate courts ordinarily apply the law in effect at the 3 time of the appellate decision . . . . ). 4 light, the BIA s denial of petitioner s motion for a stay of 5 removal due to its belief that the motion was unlikely to 6 succeed was not, as petitioner suggests, necessarily an 7 abuse of discretion. 8 9 Viewed in that Moreover, there is no allegation of undue dely or misconduct by the BIA in resolving petitioner s motion to 10 reopen. If anyone can be faulted for delay, Iouri, 464 11 F.3d at 182, it is petitioner. 12 original findings to this Court after the BIA affirmed her 13 decision in 2003, and he did not file his motion to reopen 14 and the application for a stay of removal until after he was 15 placed in detention and his removal was imminent. 16 motion was also filed almost fifteen months after the 17 issuance of the BIA decision upon which it relied, In re Y- 18 L-. 19 characterized petitioner s 2008 submission as 20 opportunistic. 17 He did not appeal the IJ s The It was for these reasons that the BIA properly Cf. Azize v. Bureau of Citizenship & 17 In its September 10, 2008 order, the BIA took the view that petitioner s motion was opportunistic because he did not file [the] motion at the time [the Board] issued [In re Y-L-] and instead filed the motion only after he 46 1 Immigration Servs., 594 F.3d 86, 93 (2d Cir. 2010) (Jacobs, 2 C.J., dissenting) (reasoning that the petitioner s delay in 3 seeking relief militated against granting a nunc pro tunc 4 remedy); Edwards, 393 F.3d at 311 n.15 (noting that nunc pro 5 tunc relief may be rendered in appropriate by the existence 6 of unclean hands, or other equitable factors (emphasis in 7 original)). 8 petitioner s argument that, because his father was granted 9 asylum in 2006, he would be eligible for asylum as a This timing takes on added significance due to 10 derivative beneficiary under the Child Status Protection Act 11 ( CSPA ), see 8 U.S.C. § 1158(b)(3), if the IJ were to 12 vacate her finding that his prior application was frivolous. 13 Because petitioner has offered almost no documentation to 14 support this contention, we are unable to assess its merits. 15 However, potential eligibility for asylum under the CSPA 16 gave petitioner and his counsel every reason to pursue 17 challenges to the IJ s frivolousness finding both zealously 18 and expeditiously. 19 waited until the eleventh hour to file his motion for a stay 20 of removal. Petitioner did not do so and instead was placed in detention and his removal became imminent. The BIA s characterization is consistent with the fact that petitioner filed the motion on July 15, 2008 but was removed just seven days later, on July 22. 47 1 Finally, in Edwards it was crucial to our analysis that 2 the relief for which those petitioners sought to apply was 3 granted in a significant percentage of cases. 4 311. 5 instructions to grant the petitioner § 212(c) relief without 6 any further proceedings. 7 be said in this case. 8 that the BIA s September 10, 2008 order be entered, nunc pro 9 tunc, as of the date the Board denied his motion for a stay 393 F.3d at In fact, we remanded one of the cases with specific See id. at 312. But that cannot Petitioner has asked us to direct 10 of removal. 11 frivolousness finding. 12 remanded the removal proceedings for clarification, and 13 the Board specifically noted that it did not necessarily 14 disagree with the [IJ s] ultimate findings. 15 (emphasis added).) 16 However, that order did not vacate the IJ s Instead, the BIA reopened and (JA 19-20 As such, the link between the relief petitioner wishes 17 to pursue and the mechanism by which he hopes to obtain it 18 is far more attenuated than in Edwards. 19 mechanism to which petitioner seeks access through the 20 doctrine of nunc pro tunc is a remand to the IJ for 21 compliance with In re Y-L-. 22 more thorough explanation, he hopes to have the The procedural But he does not simply seek a 48 1 frivolousness finding vacated. 2 but speculation as to how, in the context of such a remand, 3 he would obtain that relief. 4 Petitioner offers nothing Balanced against this conjecture, we find little reason 5 in the record to think that the IJ would abandon her 6 frivolousness finding. 7 merits hearing regarding petitioner s applications for 8 relief from removal, the IJ issued warnings about the 9 consequences of filing a frivolous application for asylum. At the outset of the April 4, 2001 10 (JA 178.) The BIA recently clarified the guidance it 11 offered in In re Y-L- by noting that [s]ufficient notice 12 [of the possibility of a frivolousness finding] is afforded 13 when the [IJ] explains the consequences of filing a 14 frivolous asylum application, either at the time the asylum 15 application is filed or prior to commencement of the merits 16 hearing. 17 After receiving this notice, petitioner indicated that he 18 understood the IJ s warnings and elected to proceed with his 19 application. 20 IJ indicated to petitioner that the manner in which he was 21 answering questions was adversely affecting her assessment 22 of his credibility. In re B-Y-, 25 I. & N. Dec. 236, 242 (BIA 2010). (JA 179, 182-83.) Early in his testimony, the (See JA 197-98 ( The law provides that 49 1 if you only give vague answers you may well be denied 2 [asylum] for that reason alone because it may impair your 3 believability. ); see also id. at 198.) 4 petitioner was being cross-examined, the IJ made a finding 5 on the record that one of his responses was not credible, 6 believable or factually accurate. 7 Subsequently, while (JA 224.) Immediately following petitioner s testimony, the IJ 8 ruled on the record that his asylum application was 9 entirely frivolous. (JA 229.) The IJ reasoned as 10 follows: I believe the lies you have told to the [c]ourt 11 are material and I believe they were told to the [c]ourt 12 purely to secure an [i]mmigration benefit. 13 added).) 14 decision that reviewed petitioner s testimony, nearly line 15 by line; identified numerous statements that she viewed as 16 misrepresentations; and characterized his testimony, on the 17 whole, as absurd. (JA 88; see also id. at 76 ( It is the 18 [c]ourt s opinion that [Zhang] just plain made this up. ); 19 id. at 77 ( [T]his is the vaguest testimony I have heard in 20 a long time and . . . [Zhang] gave the [c]ourt the 21 impression repeatedly during this hearing that he had 22 memorized a story and was afraid he would miss a bit . . . (Id. (emphases After the hearing, the IJ issued a nineteen-page 50 1 . ).) 2 petitioner had submitted a frivolous application for asylum 3 . . . supported entirely by . . . perjurious testimony. 4 (JA 90.) 5 IJ s decision as its own. 6 review of that conclusion. 7 In the conclusion of the decision, the IJ found that On direct appeal, the BIA affirmed and adopted the Petitioner did not seek judicial Thus, although it is largely undisputed that the IJ s 8 frivolousness finding ran afoul of the intervening 9 procedural protections articulated by the BIA in In re Y-L-, 10 petitioner has done little to challenge the IJ s findings 11 that: 12 elements of his asylum application; and (2) he committed 13 such perjury purely to secure an [i]mmigration benefit. 14 See 8 C.F.R. § 1208.20 ( [A]n asylum application is 15 frivolous if any of its material elements is deliberately 16 fabricated. ). 17 could obtain vacatur of the IJ s frivolousness finding in a 18 remand pursuant to In re Y-L- runs headlong into a record 19 that strongly suggests that the IJ would not abandon that 20 conclusion. 21 22 (1) his testimony was perjurious as to material Therefore, petitioner s speculation that he * * * In sum, the putative error that petitioner has 51 1 identified is different in kind than the significant error 2 that we remedied in Edwards by applying the doctrine of nunc 3 pro tunc. 4 government engaged in misconduct or undue delay when 5 resolving petitioner s motion to reopen. 6 delay in filing the motion was at least partially to blame 7 for the fact that the Board did not resolve it before he was 8 removed. 9 exceedingly unlikely to result in the relief that he Moreover, there is no allegation that the Petitioner s own Finally, the remand that petitioner seeks is 10 ultimately hopes to obtain. 11 circumstances of this case, we are not persuaded that 12 principles of equity warrant nunc pro tunc relief. III. 13 14 15 Therefore, under the CONCLUSION For the foregoing reasons, the petition for review is denied. 52

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