Circuit Split Alert: Chevron and the Reconsideration of Deportation Orders

By Webster C. Cash III

In a decision turning on application of the famed Chevron analysis, the Tenth Circuit recently clashed with their Fourth Circuit brethren in holding that federal law prohibits motions to reconsider alien deportation orders subsequent to removal from United States soil.  Rosillo-Puga v. Holder, 2009 No. 07-9564 (10th Cir. Sep. 15, 2009).

The plaintiff-petitioner Martin Puga, a citizen of Mexico, was granted conditional residency in the United States in July of 1995.  Two years later, Mr. Rosillo-Puga was convicted of battery and domestic violence by an Indiana state court.  In August of 2003, the Department of Homeland Security (DHS) initiated removal proceedings against Mr. Rosillo-Puga on grounds that his battery conviction qualified as an aggravated felony, a classification sufficient to trigger alien deportation under federal immigration statute.  During the first hearing, an Immigration Judge (IJ) ordered Mr. Rosillo-Puga be removed to Mexico.  Mr. Rosillo-Puga chose not to apply for relief from the removal order and also waived his right to appeal.  Later that year, Mr. Rosillo-Puga was deported to Mexico.

Three months after DHS removed Mr. Rosillo-Puga to Mexico, the Seventh Circuit ruled that a battery conviction under Indiana law “was not classified as an aggravated felony or a crime of domestic violence for immigration law purposes.”  In 2007, Mr. Rosillo-Puga filed a motion to reconsider his deportation on a mistake of law theory, arguing that the language of a Department of Justice regulation allowed reconsideration hearings “at any time” and that DHS officials had discretion to reopen the case sua sponte.  The IJ denied the motion on account of a separate Department of Justice regulation that forbids aliens to request reconsideration after being physically removed from the United States.  Mr. Rosillo-Puga appealed the decision to the Board of Immigration Appeals, which affirmed the IJ’s decision that the regulation precluded jurisdiction “over motions to reopen or reconsider made by aliens subsequent to their departure from the United States.”  Mr. Rosillo-Puga petitioned the Tenth Circuit for review of the administrative orders.

Because the case involved an agency’s interpretation and construction of a federal statute, the court proceeded to resolve the ambiguity through the Supreme Court’s analysis handed down in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).  The Chevron analysis is multifaceted, requiring federal courts to first consider “whether Congress has directly spoken to the precise question at issue.”  If Congress’ intent is unambiguous, then the inquiry is vitiated “and both the court and the agency” must give full effect to the will of Congress.  Conversely, if the statute is unclear “with respect to the specific issue,” then the court must decide if the agency rule “is based on a permissible construction of the statute.” 

Upon analyzing the relevant statute and regulations governing the case, the court determined the statute in question was not clear with respect to Congress’ intent on post-departure reviews.  Mainly, the court reasoned that while the statute mandates that “an alien may file one motion to reopen proceedings,” it is silent on the issue at hand by not specifically addressing post-departure hearings. With the first step of Chevron unfulfilled, the court then concluded that the regulation emerged from a valid construction of the statute because during Congressional revision of the statute, Congress failed to “explicitly repeal” the regulation.  Hence, the court determined that the Justice Department’s regulation was proper and in-line with the underlying purpose of the statute.

Interestingly, the holding rendered by the Tenth Circuit stands in direct contradiction with the Fourth Circuit’s disposition of a case grappling with the same exact legal issue.  In William v. Gonzales, 499 F.3d 329, 330 (4th Cir. 2007), a majority of the Fourth Circuit applied Chevron and determined that the statute was unambiguous in allowing “an alien with the right to file one motion to reopen, regardless of whether he is within or without the country.”  This approach was echoed in the Tenth Circuit’s dissenting opinion authored by Judge Lucero, whom pointed out that the statute is uniform in not creating any sub-classes of aliens disallowed from seeking “one motion to reopen.”  Additionally, both the Fourth Circuit and Judge Lucero’s dissent expressed concern that the Supreme Court’s recent decision in Dada v. Mukasey, 128 S. Ct. 2307 (2008), which held that “all aliens have a ‘statutory right’ to file one motion to reopen,” further undermines the Tenth Circuit’s approach to post-departure hearings.

While the reverberations of the Tenth Circuit’s approach to this case are yet to be felt, it is now undisputed that future opposing parties disputing the validity of post-departure hearings will now both possess substantial legal authority to support the foundations of their actions.