United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 8, 2003 February 28, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III Clerk FOR THE FIFTH CIRCUIT
_____________________
No. 01-60945 con. w/02-60126 _____________________
MANUEL NAVARRO-MIRANDA
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petitions for Review from the Board of Immigration Appeals
_________________________________________________________________
Before KING, Chief Judge, and DAVIS, Circuit Judge, and ROSENTHAL, District Judge.*
KING, Chief Judge:
Petitioner Manuel Navarro-Miranda seeks review of two
decisions by the Board of Immigration Appeals concerning his
deportation following a felony conviction for driving while
intoxicated. We deny Navarro-Miranda’s petition for review of
his motion to reopen his removal proceedings. As for Navarro-
* District Judge of the Southern District of Texas, sitting by designation. Miranda’s petition for review of the denial of his motion to
reconsider, we dismiss it as untimely filed.
I. FACTS AND PROCEDURAL BACKGROUND
Manuel Navarro-Miranda (“Navarro”) was convicted on January
22, 1997, of driving while intoxicated. This was Navarro’s third
DWI conviction in a six-year period, making it a felony under
Texas law. TEX. PENAL CODE ANN. § 49.09(b) (1995). The
Immigration and Naturalization Service (“INS”) initiated removal
proceedings against Navarro in November 1998. The INS alleged
that Navarro was removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
because his DWI conviction was an aggravated felony as defined by
8 U.S.C. § 1101(a)(43)(F).
At a hearing, Navarro conceded that he was removable under
§ 1227(a)(2)(A)(iii). The immigration judge issued an order of
removal concluding that Navarro’s DWI conviction was an
aggravated felony. Navarro appealed this decision to the Board
of Immigration Appeals (“BIA” or “the Board”), which agreed that
the DWI conviction was an aggravated felony and affirmed the
decision. Navarro sought no further review of the decision and
was ultimately deported to Mexico.
On September 25, 2001, Navarro filed a motion with the BIA
requesting the Board to reopen his case sua sponte based on the
Fifth Circuit’s intervening decision in United States v. Chapa-
Garza, 243 F.3d 921 (5th Cir. 2001). In Chapa-Garza, we held
that driving while intoxicated was not an aggravated felony. Id.
2 at 927. Navarro argued that, because he had been deported on the
grounds that his DWI conviction was an aggravated felony, the
Board should now reopen his removal proceedings and, in light of
this change in the law, grant him relief from the removal order.
On November 6, 2001, the BIA denied Navarro’s petition as
moot. The Board held that it lacked jurisdiction to consider a
motion to reopen or a motion to reconsider made by a person who
has already been deported. See 8 C.F.R. § 3.2(d) (2002):
A motion to reopen or a motion to reconsider 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.
Id. Navarro timely petitioned this court for review of that
decision.
Navarro also filed with the Board a motion to reconsider its
decision denying his motion to reopen. On January 25, 2002, the
Board declined to reconsider its decision. The Board reasoned
that, at the time Navarro’s final order of removal was issued,
his DWI conviction was considered to be an aggravated felony.
Accordingly, his removal order was legally executed and his
removal proceedings were completed. As a result, Navarro’s
motion to reopen was ineffective because he was moving to reopen
proceedings which were no longer pending. The Board also noted
that it lacked the authority to compel the INS either to “re-
3 admit the respondent to the United States as a lawful permanent
resident or to parole him into this country so that he can seek
reinstatement of his lawful permanent resident status.”
Navarro appeals this decision as well. His petition for
review was mailed on February 21, 2002. However, it was not
received and filed until February 26, 2002.
II. NAVARRO’S MOTION TO REOPEN THE REMOVAL PROCEEDINGS
At the time of his original deportation hearing, Navarro
conceded that he was removable under the law that made his DWI
conviction an aggravated felony. After the Board issued its
removal order, Navarro could have petitioned this court for
review of the decision; he failed to do so. Once Navarro was
deported, therefore, his removal proceedings were completed and
final. See Stone v. INS, 514 U.S. 386, 398 (1995) (“Deportation
orders are self-executing orders, not dependent upon judicial
enforcement.”).
Notwithstanding the finality of his proceedings, Navarro
argues that the Board should reopen them on its own motion under
§ 3.2(a) and grant him relief. See 8 C.F.R § 3.2(a) (“The Board
may at any time reopen or reconsider on its own motion any case
in which it has rendered a decision.”). Navarro concedes that,
because he has already been deported, the BIA lacks jurisdiction
to consider any motion filed on his behalf to reopen his removal
proceedings. See 8 C.F.R. § 3.2(d) (2002). However, Navarro
argues that the intervening change in the law imposes a duty on
4 the BIA to reopen the case on its own motion and reexamine the
removal order in light of Chapa-Garza.
The Board considered Navarro’s motion to be “moot”; the
execution of the removal order resolved any remaining case or
controversy between Navarro and the INS. As a result, the Board
interpreted its § 3.2(a) power to reopen on its own motion as
being subject to the § 3.2(d) requirement that the alien not have
been deported. Because the Board considers § 3.2(d) to be
jurisdictional, it concluded that Navarro’s deportation deprived
the Board of any further jurisdiction over motions brought
relating to his removal proceedings.
Thus, the Board has concluded that § 3.2(d) trumps the power
granted by § 3.2(a) where the alien has been deported; Navarro
challenges this interpretation. The question of the interplay
between § 3.2(a) and § 3.2(d) has not been considered in any
jurisdiction.
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United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 8, 2003 February 28, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III Clerk FOR THE FIFTH CIRCUIT
_____________________
No. 01-60945 con. w/02-60126 _____________________
MANUEL NAVARRO-MIRANDA
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petitions for Review from the Board of Immigration Appeals
_________________________________________________________________
Before KING, Chief Judge, and DAVIS, Circuit Judge, and ROSENTHAL, District Judge.*
KING, Chief Judge:
Petitioner Manuel Navarro-Miranda seeks review of two
decisions by the Board of Immigration Appeals concerning his
deportation following a felony conviction for driving while
intoxicated. We deny Navarro-Miranda’s petition for review of
his motion to reopen his removal proceedings. As for Navarro-
* District Judge of the Southern District of Texas, sitting by designation. Miranda’s petition for review of the denial of his motion to
reconsider, we dismiss it as untimely filed.
I. FACTS AND PROCEDURAL BACKGROUND
Manuel Navarro-Miranda (“Navarro”) was convicted on January
22, 1997, of driving while intoxicated. This was Navarro’s third
DWI conviction in a six-year period, making it a felony under
Texas law. TEX. PENAL CODE ANN. § 49.09(b) (1995). The
Immigration and Naturalization Service (“INS”) initiated removal
proceedings against Navarro in November 1998. The INS alleged
that Navarro was removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
because his DWI conviction was an aggravated felony as defined by
8 U.S.C. § 1101(a)(43)(F).
At a hearing, Navarro conceded that he was removable under
§ 1227(a)(2)(A)(iii). The immigration judge issued an order of
removal concluding that Navarro’s DWI conviction was an
aggravated felony. Navarro appealed this decision to the Board
of Immigration Appeals (“BIA” or “the Board”), which agreed that
the DWI conviction was an aggravated felony and affirmed the
decision. Navarro sought no further review of the decision and
was ultimately deported to Mexico.
On September 25, 2001, Navarro filed a motion with the BIA
requesting the Board to reopen his case sua sponte based on the
Fifth Circuit’s intervening decision in United States v. Chapa-
Garza, 243 F.3d 921 (5th Cir. 2001). In Chapa-Garza, we held
that driving while intoxicated was not an aggravated felony. Id.
2 at 927. Navarro argued that, because he had been deported on the
grounds that his DWI conviction was an aggravated felony, the
Board should now reopen his removal proceedings and, in light of
this change in the law, grant him relief from the removal order.
On November 6, 2001, the BIA denied Navarro’s petition as
moot. The Board held that it lacked jurisdiction to consider a
motion to reopen or a motion to reconsider made by a person who
has already been deported. See 8 C.F.R. § 3.2(d) (2002):
A motion to reopen or a motion to reconsider 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.
Id. Navarro timely petitioned this court for review of that
decision.
Navarro also filed with the Board a motion to reconsider its
decision denying his motion to reopen. On January 25, 2002, the
Board declined to reconsider its decision. The Board reasoned
that, at the time Navarro’s final order of removal was issued,
his DWI conviction was considered to be an aggravated felony.
Accordingly, his removal order was legally executed and his
removal proceedings were completed. As a result, Navarro’s
motion to reopen was ineffective because he was moving to reopen
proceedings which were no longer pending. The Board also noted
that it lacked the authority to compel the INS either to “re-
3 admit the respondent to the United States as a lawful permanent
resident or to parole him into this country so that he can seek
reinstatement of his lawful permanent resident status.”
Navarro appeals this decision as well. His petition for
review was mailed on February 21, 2002. However, it was not
received and filed until February 26, 2002.
II. NAVARRO’S MOTION TO REOPEN THE REMOVAL PROCEEDINGS
At the time of his original deportation hearing, Navarro
conceded that he was removable under the law that made his DWI
conviction an aggravated felony. After the Board issued its
removal order, Navarro could have petitioned this court for
review of the decision; he failed to do so. Once Navarro was
deported, therefore, his removal proceedings were completed and
final. See Stone v. INS, 514 U.S. 386, 398 (1995) (“Deportation
orders are self-executing orders, not dependent upon judicial
enforcement.”).
Notwithstanding the finality of his proceedings, Navarro
argues that the Board should reopen them on its own motion under
§ 3.2(a) and grant him relief. See 8 C.F.R § 3.2(a) (“The Board
may at any time reopen or reconsider on its own motion any case
in which it has rendered a decision.”). Navarro concedes that,
because he has already been deported, the BIA lacks jurisdiction
to consider any motion filed on his behalf to reopen his removal
proceedings. See 8 C.F.R. § 3.2(d) (2002). However, Navarro
argues that the intervening change in the law imposes a duty on
4 the BIA to reopen the case on its own motion and reexamine the
removal order in light of Chapa-Garza.
The Board considered Navarro’s motion to be “moot”; the
execution of the removal order resolved any remaining case or
controversy between Navarro and the INS. As a result, the Board
interpreted its § 3.2(a) power to reopen on its own motion as
being subject to the § 3.2(d) requirement that the alien not have
been deported. Because the Board considers § 3.2(d) to be
jurisdictional, it concluded that Navarro’s deportation deprived
the Board of any further jurisdiction over motions brought
relating to his removal proceedings.
Thus, the Board has concluded that § 3.2(d) trumps the power
granted by § 3.2(a) where the alien has been deported; Navarro
challenges this interpretation. The question of the interplay
between § 3.2(a) and § 3.2(d) has not been considered in any
jurisdiction. “Courts grant an agency’s interpretation of its
own regulations considerable legal leeway.” Barnhart v. Walton,
535 U.S. 212, 217 (2002). However, “[w]hile an agency
interpretation of a regulation is entitled to due deference, the
interpretation must rationally flow from the language of the
regulation.” Acadian Gas Pipeline Sys. v. FERC, 878 F.2d 865,
868 (5th Cir. 1989); see also INS v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999) (“[J]udicial deference to the Executive Branch is
especially appropriate in the immigration context.”).
5 After examining the regulations closely, we conclude that
the BIA’s interpretation of the provisions of § 3.2 is
reasonable. The BIA may reopen on its own motion “in exceptional
circumstances.” In re J– J–, 21 I. & N. Dec. 976 (1997). The
BIA has previously taken this step in response to a change in the
law concerning the alien’s removable offense. See In re Vasquez-
Muniz, 23 I. & N. Dec. 207 (2002) (reopening decision sua sponte
where Ninth Circuit subsequently reclassified alien’s conviction
for possession of a weapon by a felon as an aggravated felony);
see also In re X– G– W–, 22 I. & N. Dec. 71 (1998) (reopening sua
sponte after enactment of IIRIRA significantly changed applicable
asylum law). In neither case, though, had the alien been
deported at the time the Board reopened the case; motions to
reconsider pursuant to § 3.2(b) (Vasquez-Muniz) and § 3.2(c) (X–
G– W–) were untimely filed, and the Board exercised its § 3.2(a)
power to consider the motions.
Furthermore, § 3.2(a) is labeled as the “General” provision
of the statute. Section 3.2(d) deals specifically with cases in
which the alien has already been deported. As a fundamental rule
of statutory interpretation, specific provisions trump general
provisions. In re Nobleman, 968 F.2d 483, 487 (5th Cir. 1992).
Thus, the BIA’s reasoning that the prohibition on motions to
reopen stated in § 3.2(d) overrides its § 3.2(a) power to reopen
on its own motion is a reasonable interpretation of the language
of these two regulations.
6 The BIA’s construction of § 3.2(d) as overriding § 3.2(a)
such that the Board lacks jurisdiction to reopen the removal
proceedings of a deported alien is a reasonable agency
interpretation of the regulations in question. The Board’s
conclusion that the case is moot is consistent with the well-
established principle that “a final civil judgment entered under
a given rule of law may withstand subsequent judicial change in
that rule.” Teague v. Lane, 489 U.S. 288, 308 (1989). We
therefore deny Navarro’s petition for review of his motion to
reopen.
III. NAVARRO’S CLAIM THAT HE SHOULD BE AFFORDED RELIEF UNDER THE DECISION IN INS v. ST. CYR
Navarro also claims that he should be eligible to apply to
the Attorney General for discretionary relief. Prior to 1996, an
alien subject to a removal order could, so long as he met certain
threshold requirements, petition the Attorney General for
discretionary relief from that order. 8 U.S.C. § 1182(c) (1994).
However, in 1996, the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act (“IIRIRA”), combined with the
enactment of the Anti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), narrowed the scope of the Attorney General’s
power to conduct such discretionary review. INS v. St. Cyr, 533
U.S. 289, 295 (2001). Inter alia, the Attorney General now
lacked the power to review removal orders issued on the grounds
that the alien had committed an aggravated felony. Id. at 295-96.
7 In St. Cyr, though, the Supreme Court held that § 1182(c)
remained available to aliens “whose convictions were obtained
through plea agreements and who, notwithstanding those
convictions, would have been eligible for [§ 1182(c)] relief at
the time of their plea under the law then in effect.” Id. at
326. Navarro argues that he would have met the requirements and
that, because he entered a guilty plea, we should grant him the
right to petition the Attorney General for relief. However,
unlike the petitioner in St. Cyr, Navarro’s removal order has
already been executed.
St. Cyr is silent on the question of whether aliens who have
already been deported should be eligible for § 1182(c) relief.
The petitioner in St. Cyr was a resident alien applying for
habeas corpus relief from a deportation order; as discussed
above, because the petitioner had not yet been deported, his
removal proceedings were not yet closed. Nothing in the St.
Cyr decision makes it retroactively applicable to closed cases.
As such, the general principle of non-retroactivity controls;
because Navarro’s removal was no longer still open on direct
review, any change in the law concerning eligibility for
discretionary waiver under § 1182(c) does not apply to Navarro’s
case.1 See Teague, 489 U.S. at 306-07.
1 The Department of Justice is currently circulating a proposed rule in response to the St. Cyr decision which would delineate which aliens may apply for relief under the former § 1182(c). See Section 212(c) Relief for Aliens With Certain
8 IV. NAVARRO’S PETITION FOR REVIEW OF THE DENIAL OF HIS MOTION FOR RECONSIDERATION
An alien has thirty days from the date of the final order of
removal to file a petition for review. 8 U.S.C. § 1252(b)(1)
(2000). This deadline is jurisdictional. Guirguis v. INS, 993
F.2d 508, 509 (5th Cir. 1993).
While Navarro mailed his petition for review of the denial
of his motion for reconsideration to this court within the
thirty-day deadline, that petition was not received and filed
until the deadline had passed. The statute clearly states that
the petition must be “filed” within the thirty-day period. In
Guirguis, the petitioner gave his petition to an immigration
detention officer to be mailed within the statutory period. Id.
at 509. When the petition did not arrive at the clerk’s office
to be filed until one day past the statutory period, we found it
to be untimely, refusing to apply the more lenient rules
available for pro se prisoners filing a notice of appeal.
Houston v. Lack, 487 U.S. 266, 276 (1988) (finding timely
petition for appeal given by pro se prisoner to prison official
within the statutory period).
Criminal Convictions Before April 1, 1997, 67 Fed. Reg. 52,627 (proposed August 13, 2002) (to be codified at 8 C.F.R. § 3.44). Adoption of this new regulation could affect the retroactivity of the St. Cyr decision; however, given that the rule is still in the proposal stage, we decline to interpret or otherwise rule on it. According to the law as it stands at this time, Navarro is ineligible to apply for relief under the rule announced in St. Cyr.
9 Given that we were unwilling to extend the period for a pro
se petitioner in detention, we see no reason to do so for a
petitioner who was assisted by counsel. Navarro’s petition for
review of the Board’s denial of reconsideration of his motion to
reopen his removal proceedings is dismissed as untimely.
V. CONCLUSION
We DENY Navarro’s petition for review of the Board’s order
denying his motion to reopen his removal proceedings. We DISMISS
as untimely Navarro’s petition for review of the denial of his
motion for reconsideration.