Navarro-Miranda v. Ashcroft

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 6, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________

No. 01-60945 con. w/02-60126 _____________________

MANUEL NAVARRO-MIRANDA

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL

Respondent

_________________________________________________________________

Petitions for Review of an Order of the Board of Immigration Appeals _________________________________________________________________

Before KING, Chief Judge, and DAVIS, Circuit Judge, and ROSENTHAL, District Judge.*

KING, Chief Judge:

This court’s opinion, 323 F. 3d 325 (5th Cir. 2003) is

hereby withdrawn, and the following opinion is substituted:

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

* District Judge of the Southern District of Texas, sitting by designation. his motion to reopen his removal proceedings. As for Navarro-

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

2 that driving while intoxicated was not an aggravated felony. Id.

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. In this motion (but not

in his motion to reopen), Navarro reiterated a claim, first made

to the Board in his brief on direct appeal from the immigration

judge’s order of removal, that he is eligible for consideration

by the Attorney General for discretionary relief from deportation

in light of the Supreme Court’s decision in INS v. St. Cyr, 533

U.S. 289 (2001). On January 25, 2002, the Board declined to

reconsider its decision. The Board reasoned that, at the time

3 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-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.” The Board did not address his St.

Cyr argument, presumably because it was not raised in his motion

to reopen.

Navarro appeals the decision denying his motion to

reconsider 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

4 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

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

5 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.”).

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–

6 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.

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 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)

7 (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).

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. We do

not, therefore, address his argument (made in his motion for

reconsideration but not in his motion to reopen) that under St.

Cyr he should be eligible to apply to the Attorney General for

discretionary relief.

8 IV. 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.