Motion to Reopen After Departure from U.S./Sua Sponte Authority to Consider Belated Motions

CA7 affirmed denial of motion to reopen by departed alien, finding that petitioner’s motion was unquestionably time-barred where petitioner offered no basis to excuse a six-plus year delay in moving to reopen. (Munoz de Real v. Holder, 2/11/10).

A petition for review, a BIA's decision affirming IJ's denial of a Mexican national's motion to reopen removal proceedings on the ground that based on intervening developments in the law, the conviction of felony drunk driving was not a proper basis for removal, is denied as petitioner's motion to reopen was unquestionably time-barred.

Read Munoz de Real v. Holder, No. 09-1945

Appellate Information: On Petition for Review from an Order of the Board of Immigration Appeals Decided February 11, 2010

Judges: Before: Easterbrook. Chief Judge, and Kanne, Circuit Judges, and Kennelly, District Judge Opinion by District Judge Kennelly

In Munoz De Real v. Holder, 2010 WL 455404 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit, in denying a petition for review, upheld an order by the BIA which refused to a reopen a final removal order against a Mexican citizen who claimed that the order was rendered a “legal nullity” by virtue of a Seventh Circuit decision after his physical removal, which decision held that drunk driving offenses are not “crimes of violence.” The circuit court did not reach the legal issue of whether the fact of the alien's departure from the U.S. precluded his motion but ruled that IJ's declination to exercise her sua sponte authority to entertain the petitioner's belated motion was justified and therefore did not constitute an abuse of discretion.

In January 2001, the petitioner, a former legal permanent resident of the U.S., was convicted of operation of a motor vehicle while intoxicated (OWI), with a prior OWI, in violation of Indiana law. At the time of his conviction, this offense was considered an aggravated felony (crime of violence). Removal proceedings were commenced against him pursuant to INA § 237(a)(2)(iii) [8 USCA § 1227(a)(2)((iii)], and an IJ ordered his removal on April 11, 2001. The petitioner did not challenge the IJ's order, and he left the country shortly after its issue. In December 2007, he moved to reopen his removal proceedings, citing to the Seventh Circuit's opinion in Bazan-Reyes v. I.N.S., 256 F.3d 600 (7th Cir. 2001), decided in July 2001, and ruling that drunk-driving offenses are not crimes of violence and therefore not aggravated felonies for the purposes of determining an alien's removability. The IJ denied this motion in December 2008 for lack of jurisdiction pursuant to 8 CFR § 1003.23(b)(1) because the petitioner had departed the U.S. The IJ further ruled that there was no basis to reopen the proceeding sua sponte because the 2001 removal order was lawful and in accordance with the law at the time when it was issued and did not result in a “gross miscarriage of justice.” In affirming the IJ's ruling, the BIA relied on its precedent decision, Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 2008 WL 4490316 (B.I.A. 2008), which held that immigration courts lack jurisdiction over a motion to reopen filed by an alien who has departed the U.S.

The Circuit Court explained that, pursuant to the Supreme Court's recent decision in Kucana v. Holder, 2010 WL 173368 (U.S. 2010), it had jurisdiction to review the denial of a motion to reopen (MTR) a removal proceeding. It indicated that the Seventh Circuit had not yet considered the question of whether the aforesaid regulation, precluding aliens who had departed the U.S. following a removal order from filing an MTR, was in conflict with the general statute authorizing MTRs, INA § 240(c)(7)(A) [8 USCA § 1229a(c)(7)(A)]. It observed that the Fourth and Ninth Circuits have ruled that immigration courts may hear such MTRs on behalf of departed aliens but concluded that it did not need to determine the effect of the regulatory departure bar in the instant case.

The court pointed out that INA § 240(c)(7)(A) requires that an MTR be filed within 90 days of the entry of an order of removal and that this 90-day period expired over six years before the petitioner filed his MTR. The court noted that the petitioner had argued that he had received ineffective assistance of counsel from the attorney who handled his removal proceedings and that this factor should excuse his untimely filing of the MTR. The court responded that attorney negligence is not, without more, a basis to toll a statute of limitations. Moreover, it stated that the petitioner offered no basis to excuse a six-plus-year delay in moving to reopen.

In addressing the petitioner's contention that the IJ erred by not recognizing her sua sponte discretion to consider the belated MTR, the court considered that the IJ did in fact reach the question of whether to exercise such discretion to reopen the case but chose not to do so. It emphasized that the IJ found that there was insufficient evidence that the removal order was a gross miscarriage of justice such as to justify its reopening. The court determined that the petitioner had offered nothing to suggest that the IJ's finding in that regard was an abuse of discretion.