CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is Removed

William v. Gonzales (4th Cir. Sept. 6, 2007)

Holding: The regulation barring motions to reopen filed after a person departs or is removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen filed post-departure.

The petitioner in this case was removed based on a conviction for a crime involving moral turpitude. Subsequently, the state court vacated the conviction that served as the basis of the removal charge, and the petitioner filed a motion to reopen his removal proceedings. The Board of Immigration Appeals dismissed the motion to reopen, finding that it lacked jurisdiction over the motion pursuant to 8 C.F.R. § 1003.2(d) because the petitioner had been removed. The petitioner filed a petition for review in the court of appeals challenging the validity of 8 C.F.R. § 1003.2(d) and alternatively, its application to his case.

Employing the Chevron analysis, the court considered whether the motion to reopen statute, INA § 240(c)(7)(A), spoke directly to the question of whether noncitizens outside the United States may file motions to reopen. The court found that INA § 240(c)(7)(A) "unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country." Therefore, the regulation containing the post departure bar conflicts with the statue and is invalid. The Fourth Circuit is the first court of appeals to reach this conclusion.

The court found that the overall structure of INA § 240 "reinforces" its reading of the motion to reopen statute. Specifically, the court noted that section 240 includes several limitations on motions to reopen, yet it does not except noncitizens who have departed the United States. In addition, section 240(c)(7)(C)(iv) - the special rules for battered spouses - provides that a person filing a motion to reopen to apply for relief as a victim of domestic violence must be "physically present in the United States at the time of filing the motion." Congress, however, did not include the "physical presence" requirement in the general motion to reopen provision. Because Congress knew how to include a physical presence requirement and did not do so, the court concluded that such a requirement is not a prerequisite to filing a motion to reopen pursuant to INA § 240(c)(7)(A).

Chief Judge Williams dissented from the majority opinion. She found that the motion to reopen language is silent as to the issue of departure, and therefore step one of the Chevron analysis is not satisfied. Moving to step two of the Chevron analysis, she found that 8 C.F.R. § 1003.2(d) is not "arbitrary, capricious, or manifestly contrary to the statute." Thus, she would defer to the government's construction of the statute.