Mendiola v. Holder, No. 08-9565 (10th Cir. Oct. 28, 2009)
Petitioner Eddie Mendiola is a Peruvian citizen who became a lawful permanent resident of the U.S. in 1989. In 2004, the Department of Homeland Security commenced removal proceedings against him, as a result of, among other things, two felony convictions for possession of steroids. The Immigration Judge ordered him removed and the Board of Immigration Appeals affirmed that decision; a petition for review was denied by the 10th Circuit. In March 2005, while the petition was pending, petitioner was removed to Peru. He then returned illegally and was detained. In 2007, while in custody, petitioner filed a motion to reopen with the BIA. This motion was denied as jurisdictionally barred and untimely. On appeal to the 10th Circuit, the BIA decision was affirmed.
Petitioner, after obtaining new counsel, filed a second motion to reopen with the BIA, arguing ineffective assistance of counsel and that his second possession conviction had been reduced to a misdemeanor. Once again, the BIA denied the motion, restating that it lacked jurisdiction and the motion was untimely. It also noted that according to statute, an alien may only file one motion to reopen.
At appeal, the issue was framed as whether BIA is properly deprived of jurisdiction to entertain a motion to reopen by 8 C.F.R. 1003.23(b)(1). This section reads, as quoted in the opinion:
“A motion to reopen or a motion to reconsider [before the BIA] 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.”
The Court began by recounting the legislative and regulatory history of the post-departure bar. In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which repealed judicial post-departure review first instituted by the Attorney General in 1952, but also instituted numerical and time limits on motions to reopen before an Immigration Judge and BIA. The next year, the Attorney General issued new regulations, which retained the post-departure bar. The 10th Circuit concluded in Rosillo-Puga v. Holder, a case decided after briefing in the instant case, that the regulatory post-departure bar is a valid exercise of the Attorney General’s rule-making power, and does not contravene 8 U.S.C. 1229a(c)(7), which grants an alien the right to file one motion within 90 days. (It should be noted that, according to the instant decision, the 4th Circuit has come to the opposite conclusion, concluding that the statute unambiguously provides all aliens with the right to file one motion to reopen within the time limit, and that the regulatory post-departure bar conflicts with the statute and is invalid.)
The Court found that the language of 1003.23(b)(1) mirrored the statutory language at issue in Rosillo-Puga. Relying on that case’s precedent, and stressing stare decisis, the Court reasserted the conclusion that “Congress’s provision for one motion to reopen within 90 days of removal in those statutory subsections does not alter the valid continued operation of the regulatory post-departure bar to motions to reopen.” Because it found that the BIA’s jurisdiction had been divested by the post-departure bar, the Court did not need to reach the issue of whether equity would require a tolling of the time and numerical limitation as a result of ineffective assistance.