Balerio Rubalcaba v. Garland, No. 17-70845 (9th Cir. 2021)
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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of sua sponte reopening petitioner's immigration proceedings based on the departure bar provision in 8 C.F.R. 1003.23(b)(1). Petitioner argued that an IJ should not be prevented from reopening a noncitizen's case on the IJ's own motion based solely on the noncitizen's departure during or after prior proceedings.
The panel joined the Tenth Circuit and held that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ's discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, the BIA erred in determining that the departure bar prevented the IJ from reopening petitioner's immigration proceedings sua sponte. The panel remanded to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible.
Court Description: Immigration. The panel granted Jaime Balerio Rubalcaba’s petition for review of a decision of the Board of Immigration Appeals, vacated the BIA’s decision, and remanded, holding that the “departure bar” provision in 8 C.F.R. § 1003.23(b)(1) does not apply in the context of sua sponte reopening. Section 1003.23(b)(1) allows an immigration judge (“IJ”) to reopen a case on his or her own motion—sua sponte reopening—or pursuant to a motion to reopen filed by either party. At all times relevant to this case, the provision of 8 C.F.R. § 1003.23 known as the “departure bar” provided: “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.” Rubalcaba was removed from the United States in 1995. In 2016, after his subsequent return, he requested that an IJ reopen his case sua sponte to allow him to apply for adjustment of status. The BIA relied exclusively on the departure bar in affirming the IJ’s denial of sua sponte reopening. In the published decision of Matter of Armendarez- Mendez, 24 I. & N. Dec. 646 (BIA 2008), the BIA construed the departure bar rule as imposing a limitation on its BALERIO RUBALCABA V. GARLAND 3 jurisdiction to entertain motions filed by noncitizens who had departed the United States, and concluded that it applied to sua sponte reopening. This court rejected this interpretation in Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015), as applied to timely motions for reopening, concluding that the BIA’s interpretation impermissibly conflicted with clear and unambiguous statutory language permitting a noncitizen to file one motion to reopen within ninety days of a final order of removal. Because the petitioner’s motion to reopen had been timely in Toor, the court did not decide whether an untimely motion that relied on sua sponte reopening authority would be subject to the departure bar. The panel joined the Tenth Circuit in holding that the departure bar does not limit an IJ’s sua sponte reopening authority. Applying the framework for evaluating an agency’s interpretation of its own regulations announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the panel concluded that 8 C.F.R. § 1003.23(b)(1) is not “genuinely ambiguous.” Rather, the panel concluded that the plain language of the regulation makes clear that the departure bar limits only “motions to reopen,” not an IJ’s sua sponte authority. First, the panel observed that the regulation distinguishes between an IJ’s sua sponte reopening authority and a noncitizen’s ability to file a motion to reopen, and explained that the plain text of the departure bar applies only to a motion to reopen or reconsider and says nothing about sua sponte authority. Second, the panel concluded that the structure of 8 C.F.R. § 1003.23(b)(1) confirms the understanding that the departure bar clearly does not apply to sua sponte authority. Third, the panel concluded that the history of the regulation reinforced its conclusion. Finally, the panel concluded that its interpretation is consistent with the purpose of the regulation: giving the agency flexibility in truly unusual 4 BALERIO RUBALCABA V. GARLAND cases in which a noncitizen cannot meet the regulatory requirements for a “motion to reopen” but the agency determines that reopening is still justified. Having concluded that the regulation is not genuinely ambiguous, the panel explained that was the end of its inquiry under Kisor, and accordingly, it did not defer to the BIA’s contrary interpretation. The panel recognized that the Second, Third, and Fifth Circuits have reached the opposite conclusion, but noted that these circuits did not have the benefit of Kisor. Prior to Kisor, courts evaluated an agency’s interpretation of its own regulations using the deferential standard set out in Auer v. Robbins, 519 U.S. 452 (1997), under which an agency’s interpretation was controlling unless plainly erroneous or inconsistent with the regulation. However, as the Tenth Circuit concluded in holding that the departure bar was not genuinely ambiguous, the panel explained that Kisor requires the court to “dig deeper” in determining whether a regulation is genuinely ambiguous.
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