Rafael Rodriguez-Barajas v. Eric Holder, Jr.

Filing

PUBLISHED OPINION FILED. [09-60351 Vacated and Remanded] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/10/2010 [09-60351]

Rafael Rodriguez-Barajas v. Eric Holder, Jr.

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Case: 09-60351

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Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60351 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

R A F A E L RODRIGUEZ-BARAJAS, P e titio n e r, versu s E R I C H. HOLDER, JR., U.S. Attorney General, R esp on d en t.

P e t itio n for Review of an Order of the Board of Immigration Appeals

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

R a fa e l Rodriguez-Barajas petitions for review of a decision of the Board of I m m ig r a t io n Appeals ("BIA"), arguing that the BIA erred in holding that it la c k e d jurisdiction to hear his appeal because he had voluntarily left the country w h ile his habeas corpus petition was pending in federal court. We must decide w h e t h e r an alien subject to removal proceedings who voluntarily departs the U n ite d States after the BIA has issued a decision on his appeal, but while his ha-

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Date Filed: 10/19/2010

No. 09-60351 b e a s petition is pending, is deemed to have withdrawn his appeal pursuant to 8 C.F.R. § 1003.4 (2010). We conclude that the regulation does not apply to dep a r tu r e s occurring after a BIA decision on appeal and while a habeas petition is pending, so the BIA has jurisdiction to review Rodriguez-Barajas's appeal.

I. I n 1990, Rodriguez-Barajas was admitted into the United States as a lawfu l permanent resident. In 1998, he was convicted in state court of possession o f marihuana and sentenced to four years of deferred adjudication. In 2001, he a p p lie d for admission as a returning resident alien but was found ineligible for a d m is s io n because of his conviction. He was served with a notice to appear alle g in g he was subject to removal for the conviction. R od rigu ez-B a r a ja s appeared with counsel before an immigration judge and c o n c e d e d the allegations in the notice to appear. After a hearing, the immigrat io n judge ruled that Rodriguez-Barajas was ineligible for cancellation of rem o v a l because of his aggravated-felony conviction. The BIA dismissed his app e a l for failure to file a brief. R od rigu ez-B a raja s filed a habeas petition in federal district court challengin g the denial of his application for cancellation of removal. That petition was t r a n s fe r r e d to this court, which, in 2007, granted the Attorney General's motion t o remand to the BIA in light of Lopez v. Gonzales, 549 U.S. 47 (2006). On rem a n d , the government submitted documents showing that, during the pendency o f his habeas petition, Rodriguez-Barajas had voluntarily removed himself to M e x ic o . The BIA dismissed the appeal for lack of jurisdiction because, pursuant t o 8 C.F.R. § 1003.4, Rodriguez-Barajas's voluntary departure constituted a w it h d r a w a l of his appeal. Rodriguez-Barajas filed the instant petition for review in this court.

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No. 09-60351 II. W e review the BIA's rulings of law de novo. Alvarado de Rodriguez v. Hold e r , 585 F.3d 227, 233 (5th Cir. 2009). We may not affirm the BIA's decision exc e p t on the basis of the reasons it provided. Galvez-Vergara v. Gonzales, 484 F .3 d 798, 803 n.6 (5th Cir. 2007). We must defer to an agency's interpretation o f its own regulation "unless an `alternative reading is compelled by the regulat io n 's plain language or by other indications of the Secretary's intent at the time o f the regulation's promulgation.'"1 We grant the BIA's interpretation of its own r e g u la tio n s "considerable legal leeway." 2 T h e regulation on which the BIA relied states, in pertinent part: D e p a r tu r e from the United States of a person who is the subject of d e p o r t a t io n or removal proceedings . . . subsequent to the taking of a n appeal, but prior to a decision thereon, shall constitute a withd r a w a l of the appeal, and the initial decision in the case shall be fin a l to the same extent as though no appeal had been taken. 8 C.F.R. § 1003.4. Rodriguez-Barajas argues that § 1003.4 is not applicable, bec a u s e his departure after the BIA's decision on appeal, but while his habeas petit i o n was pending, was not "subsequent to the taking of an appeal, but prior to a decision thereon." N o court appears to have addressed whether the language "subsequent `to t h e taking of an appeal, but prior to a decision thereon" covers departures occurr in g after a decision by the BIA but while a habeas petition is pending. The gove r n m e n t argues that this case is controlled by Long v. Gonzales, 420 F.3d 516 (5 t h Cir. 2005). Long did not, however, address the issue we face, because the p e t it io n e r there departed the country before the BIA rendered a decision. Id. at

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)). Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (quoting Barnhart v. Walton, 535 U.S. 212, 217 (2002)).
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No. 09-60351 5 1 8 . Rather, the issue in Long was whether § 1003.4 covered involuntary as well a s voluntary departures. Id. at 520-21. That we considered the petitioner in L o n g to have waived his appeal, id. at 520, tells us nothing about whether a petit io n e r does so if his departure follows the BIA's decision. W it h o u t any precedent on point, we turn to the plain language of § 1003.4, w h ic h says that if an alien departs "subsequent to the taking of an appeal, but p r io r to a decision thereon . . . the initial decision in the case shall be final to the s a m e extent as though no appeal had been taken." From this language, it is e v id e n t that the BIA's decision on appeal is "a decision" under the regulation des p it e being subject to habeas review. If, according to § 1003.4, the immigration ju d g e 's decision counts as a "decision," albeit an "initial" one, despite being subje c t to BIA review, then surely the BIA's decision to dismiss an appeal counts as " a decision" despite being subject to habeas review. And because the regulation m a k e s a distinction between "initial decision[s]" and those that are "final," it is m a n ife s t that a BIA decision on appeal is "a decision" even if it is not "final" in t h e sense that it is subject to habeas review. Therefore, departure after a BIA d e c is io n on appeal, while a habeas petition is pending, is not "prior to a decision" in the appeal. A contrary interpretation, in which "a decision" would occur only once the c a s e was conclusively decided, would also render the words "prior to a decision t h e r e o n " superfluous. This is so because once the case is conclusively decided, t h e r e is no longer an appeal to waive. Therefore, any departure subsequent to t h e taking of an appeal by a person subject to removal proceedings would constit u t e a waiver of the appeal. Comparing § 1003.4 to a similar provision, 8 C.F.R. § 1003.2(d) (2010), is a ls o instructive. Under § 1003.2(d), any departure from the United States after filin g a motion to reopen or reconsider by a person subject to removal proceedin g s precludes BIA jurisdiction to consider the motion. The government argues 4

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No. 09-60351 t h a t because the same policies underlie §§ 1003.2(d) and 1003.4, the two sections s h o u ld be interpreted analogously. But there is a critical difference between the t w o provisions: Section 1003.2(d) says that "[a]ny departure from the United S t a te s . . . occurring after the filing of a motion to reopen or a motion to recons id e r , shall constitute a withdrawal of such a motion." By contrast, § 1003.4 says t h a t a departure constitutes a withdrawal of an appeal only if it occurs "prior to a decision thereon." The presence of such limiting language in § 1003.4, but not in § 1003.2(d), suggests that the former regulation should not be interpreted to m ir r o r the latter. A contrary holding would also conflict with Nken v. Holder, 129 S. Ct. 1 7 4 9 , 1761 (2009), holding that the burden of removal alone does not by itself c o n s t it u t e irreparable injury for purposes of granting a stay of removal. The Court so held because the Illegal Immigration Reform and Immigrant Responsib ili t y Act of 1996 permitted judicial review of a petition by a removed alien.3 W it h o u t BIA jurisdiction on remand, consideration of a removed alien's habeas p e t it io n would be pointless, because the sole remedy available under habeas r e v ie w in the case of a removed alien is to vacate the removal order.4 Therefore, c o n tr a Nken, removal from the United States would result in irreparable injury, b e c a u s e an alien would not be able to obtain any relief from the BIA on remand a ft e r the order was vacated. T h e government admits that "there is a tension between this [c]ourt's juris d ic t io n over petitions for review and the regulation that controls the [BIA's] ju r is d ic t io n " and concedes that an alien removed while his habeas petition is

Nken, 129 S. Ct. at 1761 ("Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal."). Zalawadia v. Ashcroft, 371F.3d 292, 301 (5th Cir. 2004) ("[V]acating the deportation order is the beginning and end of the habeas authority we have . . . .").
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No. 09-60351 p e n d in g "could nonetheless pursue his appeal before the [BIA]" on remand. The g o v e r n m e n t argues that the BIA nevertheless does not have jurisdiction over R o d r ig u e z -B a r a ja s 's appeal, because his departure from the United States was v o lu n t a r y . The plain language of § 1003.4, however, makes no distinction bet w e e n voluntary and involuntary departures5 -- n e ith e r is covered by § 1003.4 if it does not occur "prior to a decision" on the appeal. I n sum, § 1003.4 unambiguously does not bar the BIA's jurisdiction over t h e appeal of an alien who departs, whether voluntarily or involuntarily, after t h e BIA has decided his appeal but while his habeas petition is pending.6 Therefo r e , the government's interpretation of the regulation is not entitled to defere n c e . Thomas Jefferson Univ., 512 U.S. at 512. T h e petition for review is GRANTED, the decision of the BIA is VACATE D , and this matter is REMANDED for further proceedings as needed.7

Long, 420 F.3d at 520 (stating that making a distinction between voluntary and involuntary departures "would require us to read into § 1003.4 an exception that it neither expressly nor implicitly provides"). We need not determine whether § 1003.4 bars BIA jurisdiction in the case of an alien's departure while his remanded appeal is pending before the BIA. We decide only that the BIA has jurisdiction on remand when an alien departs while his habeas petition is pending and before the case has been remanded to the BIA.
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The government argues, in the alternative, that

even assuming the [BIA] had jurisdiction to consider Petitioner's appeal, he is not eligible for any form of relief. Because he relinquished his lawful permanent resident status . . ., he is not eligible for cancellation of removal under INA section 240A(a) . . ., and he is not eligible for cancellation of removal under INA section 240a(b) . . ., because of his controlled substance conviction. We express no view on that assertion, which the BIA is free to consider on remand. By a postsubmission letter filed pursuant to Federal Rule of Appellate Procedure 28(j), Rodriguez-Barajas claims support from Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and Dada v. Mukasey, 554 U.S. 1 (2008). We likewise do not opine on the applicability, if any, of those decisions, nor do we limit the matters that the BIA may consider, as appropriate, on remand.

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