Jose Euceda Hernandez v. Eric Holder, Jr.

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, CARLOS T. BEA and MORGAN B. CHRISTEN) GRANTED; VACATED; REMANDED. Judge: MBC Authoring. FILED AND ENTERED JUDGMENT. [8914654]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE MIGUEL EUCEDA HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

No. 12-71862
Agency No.
A096-064-471

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 28, 2013—Pasadena, California
Filed December 24, 2013
Before: Diarmuid F. O’Scannlain, Carlos T. Bea,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen

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HERNANDEZ V. HOLDER
SUMMARY*

Immigration
The panel granted Jose Miguel Euceda Hernandez’s
petition for review of the Board of Immigration Appeals’
dismissal of his motion to reopen for lack of jurisdiction
pursuant to its “place-of-filing” rule.
The panel held that the Board’s interpretation of its
place-of-filing rule, providing that a motion to reopen must
be filed with the immigration judge when the Board dismisses
an appeal on jurisdictional grounds, is only a procedural
claims-processing rule and not a jurisdictional bar to the
Board’s authority to consider a motion to reopen. The panel
vacated the Board’s order and remanded for proceedings
consistent with the opinion.

COUNSEL
Isaiah Costas-Barofsky (argued) and Alexis Diamond
(argued) under the supervision of Andrew Knapp,
Southwestern Law School, Los Angeles, California, for
Petitioner.
Yedidya Cohen (argued), Stuart F. Delery, S. Nicole
Nardone, and Anthony P. Nicastro, Department of Justice,
Washington, D.C., for Respondent.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
CHRISTEN, Circuit Judge:
Jose Miguel Euceda Hernandez, a citizen of Honduras,
filed a motion to reopen removal proceedings with the Board
of Immigration Appeals (“the Board”) after the Board
dismissed his appeal for lack of jurisdiction. The Board
dismissed his motion to reopen for lack of jurisdiction
pursuant to its “place-of-filing” rule. Euceda Hernandez
petitions for review. We have jurisdiction over this appeal
under 8 U.S.C. § 1252(a)(1). We grant the petition and
remand this case to the Board.
I. BACKGROUND
Euceda Hernandez, a citizen of Honduras, entered the
United States in 1992. In October 2002, he filed an
application for asylum with the Immigration and
Naturalization Service (“INS”). The INS issued a notice to
appear in December 2002, charging that Euceda Hernandez
was removable under 8 U.S.C. § 1182(a)(6)(A)(i) for having
entered the United States without admission or parole.
Euceda Hernandez conceded removability but sought
cancellation of removal or, alternatively, voluntary departure.
In August 2004, an immigration judge denied Euceda
Hernandez’s application for cancellation of removal. Any
appeal was due by September 8, 2004.
Euceda Hernandez, proceeding pro se, sent notice of
appeal on September 8, 2004. The appeal was received and
filed on September 9, 2004. The Board ruled that the
immigration judge’s decision had become final because

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Euceda Hernandez’s appeal was one day late. The Board
dismissed Euceda Hernandez’s appeal for lack of jurisdiction.
The Board’s order also informed Euceda Hernandez that the
Board could entertain a motion to reconsider, but that any
other motion, including a motion to reopen, had to be filed
with the immigration judge.
Notwithstanding the Board’s instructions, Euceda
Hernandez attempted to re-file his notice of appeal with
Board in December 2004, along with a motion to accept a late
filing. The Board treated Euceda Hernandez’s filing as a
motion to reconsider “[i]nasmuch as it asserts the appeal,
filed one day late, should be accepted as timely.” But the
Board ruled that Euceda Hernandez’s filing, construed as a
motion to reconsider, was itself untimely, and the Board
denied the motion to reconsider.
In April 2011, Euceda Hernandez, still pro se, filed a
motion to reopen with the Board. He alleged ineffective
assistance of counsel during proceedings before the
immigration court in 2004. The Board determined it did not
have jurisdiction over the motion to reopen pursuant to its
interpretation of 8 C.F.R. § 1003.2(a). The Board’s
interpretation, sometimes dubbed its “place-of-filing” rule,
provides that a motion to reopen must be filed with the
immigration judge when the Board dismisses an appeal on
jurisdictional grounds and does not enter a decision on the
merits. See In re Mladineo, 14 I. & N. Dec. 591, 592 (BIA
1974); In re Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998). In
accordance with this rule, the Board instructed Euceda
Hernandez to file his motion to reopen with the immigration
court. But Euceda Hernandez was undeterred, and he filed a
nearly verbatim motion to reopen with the Board in March
2012. In an order dated May 14, 2012, the Board reiterated

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its conclusion that it did not have jurisdiction to decide
Euceda Hernandez’s motion to reopen and it again instructed
Euceda Hernandez that his motion had to be filed with the
immigration court.
Euceda Hernandez petitions for review of the Board’s
May 14, 2012 order.
II. STANDARD OF REVIEW
We review an agency’s determination of its own
jurisdiction de novo. Reynoso-Cisneros v. Gonzales,
491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam).
III.

DISCUSSION

Euceda Hernandez argues that 8 U.S.C. § 1229a(c)(7)
permits an alien to file one motion to reopen, and that because
the statute does not limit the place of filing explicitly, the
location of the filing cannot be a jurisdictional limitation.
8 U.S.C. § 1229a(c)(7) does permit an alien to file one motion
to reopen but it does not speak to the Board’s authority to
entertain the motion. 8 U.S.C. § 1229a(c)(7)(A). The
agency’s interpretation of the statute is set out in 8 C.F.R.
§ 1003.2(a). That regulation provides that “[t]he Board may
at any time reopen or reconsider on its own motion any case
in which it has rendered a decision,” but “[a] request to
reopen or reconsider any case in which a decision has been
made by the Board . . . must be in the form of a written
motion to the Board.” (Emphasis added). Therefore, under
the regulation, if the Board has rendered a “decision,” a party
seeking to reopen must file a motion with the Board.

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Interpreting the previous version of 8 C.F.R.
§ 1003.2(a)¯which contained the same filing requirement¯
the Board ruled that there is no “decision” by the Board when
the Board dismisses an appeal solely for lack of jurisdiction;
instead, “the attempted appeal is nugatory and the decision of
the immigration judge remains undisturbed.” In re Mladineo,
14 I. & N. Dec. 591, 592 (BIA 1974). In Mladineo, the Board
held that if “a motion is made to reopen or reconsider . . . ,
there appears to be no reason why the immigration judge
should not adjudicate it, as he does in other cases where there
was no appeal from his prior order.” Id.
In In re Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998), the
Board decided that it would entertain motions to reconsider
dismissals of untimely appeals to the extent the motions
challenged the finding of untimeliness or requested
consideration of the reasons for untimeliness. Id. But Lopez
recharacterized the Mladineo decision as one that rested on
jurisdiction. Id. In doing so, Lopez purported to modify the
Board’s claims-processing rule into an interpretation of the
regulation that limited the Board’s own jurisdiction: “we now
modify our holding in Matter of Mladineo, supra, and hold
that the Board retains jurisdiction over a motion to reconsider
its dismissal of an untimely appeal to the extent that the
motion challenges the finding of untimeliness or requests
consideration of the reasons for untimeliness.” Id. (emphasis
added).
An agency’s interpretation of its own regulation is
“controlling unless plainly erroneous or inconsistent with the
regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997)
(internal quotation marks omitted). Euceda Hernandez argues
that the Board’s interpretation, as articulated in Mladineo and
Lopez, is inconsistent with the text of 8 C.F.R. § 1003.2(a)

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because the regulation permits the Board to reopen or
reconsider any “decision” upon receipt of a written motion;
whether that decision is on the merits is immaterial. Euceda
Hernandez overlooks that a jurisdictional dismissal is not a
“decision” at all under the Board’s reasoning—it is a
statement that the adjudicatory body lacks authority to render
a decision.
Euceda Hernandez maintains that the Board’s place-offiling rule lacks a “discernible or acceptable purpose.” See
Judulang v. Holder, 132 S. Ct. 476, 490 (2011) (“We must
reverse an agency policy when we cannot discern a reason for
it.”). The rule ensures that the only body to have addressed
the merits of a petitioner’s application also adjudicates any
potential motion to reopen. The rule is therefore “tied . . . to
the . . . appropriate operation of the immigration system.” Id.
at 485.
Euceda Hernandez also argues that Congress implicitly
disapproved of the place-of-filing rule when it declined to
codify the rule in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. But Congress’s
silence as to the rule in Mladineo is uninformative. It is
equally likely that Congress saw no problem with the rule and
therefore elected to maintain the status quo by not addressing
it.
Nevertheless, we conclude that Euceda Hernandez is
correct that the Board’s place-of-filing rule is a procedural
claims-processing rule, not a jurisdictional bar to the Board’s
authority to consider a motion to reopen. The originating
statute, 8 U.S.C. § 1229a(c)(7), does nothing to diminish the
Board’s jurisdiction or authorize the Board to diminish its
own jurisdiction. See Union Pac. R.R. v. Bhd. of Locomotive

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Eng’rs, 558 U.S. 67, 83–84 (2009) (“Congress gave the
[National Railroad Adjustment] Board no authority to adopt
rules of jurisdictional dimension.”); Arbaugh v. Y & H Corp.,
546 U.S. 500, 514–16 (2006).
This case cannot be meaningfully distinguished from
Irigoyen-Briones v. Holder, 644 F.3d 943, 947–49 (9th Cir.
2011). There, our court considered whether the 30-day time
limit for filing a notice of appeal with the Board under
8 C.F.R. § 1003.38(b) is jurisdictional. We noted that under
8 C.F.R. § 1003.1(c), the Board could decide to exercise
jurisdiction over an appeal even if the notice of appeal was
filed after the 30-day deadline. Id. at 946, 949. We
concluded that “[b]y reviewing cases where the lateness is
extraordinary, the agency interprets its own regulation as a
non-jurisdictional claim-processing rule.” Id. at 949.
The situation in this case is the same. In Mladineo, the
Board used its certification authority under 8 C.F.R.
§ 1003.1(c) to consider a motion to reopen that should have
been filed with the immigration judge under the place-offiling rule. Mladineo, 14 I & N. Dec. at 592 (taking the case
on certification under § 1003.1(c) and denying the motion on
the merits). The Board could not have done this if the placeof-filing rule were jurisdictional. We conclude that the placeof-filing rule is not jurisdictional in character.
Because the Board’s place-of-filing rule is only a claimsprocessing rule, we conclude the Board erroneously relied on
it to rule that it did not have jurisdiction.1 We vacate the

1

Therefore, we need not reach Euceda Hernandez’s remaining
arguments.

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Board’s order and remand for proceedings consistent with
this opinion.
IV.

CONCLUSION

We GRANT the petition for review, VACATE the
Board’s May 14, 2012 order, and REMAND for proceedings
consistent with this opinion.