Comment on Rosillo-Puga v. Holder

Aaron Hall[1]

In Rosillo-Puga v. Holder, the Tenth Circuit Court of Appeals ruled that 8 C.F.R. § 1003.23(b)(1) bars an alien who has been physically removed from the United States from filing a motion to reopen or reconsider his removal proceedings.[2]  Rosillo-Puga involved an alien the court ordered removed for having a conviction for battery in Indiana.  The immigration judge ruled that the battery conviction constituted an aggravated felony and a crime of domestic violence for purposes of immigration law.  The alien was removed to his native country of Mexico.  Subsequently, in another case, the Seventh Circuit Court of Appeals ruled that a conviction for battery in Indiana was not an aggravated felony or a crime of domestic violence for purposes of immigration law.[3]  Rosillo-Puga subsequently filed a motion to reconsider his order of removal.

The Tenth Circuit analyzed the interplay between the statute found at 8 U.S.C. § 1229a(c)(6)(A) and the regulation promulgated by the Attorney General at 8 C.F.R. § 1003.2(d).  The subsection of the statute, “Motions to reconsider,” reads, “The alien may file one motion to reconsider a decision that the alien is removable from the United States.”[4] The statute subsequently imposes a time limit and a substantive requirement for the motion to reconsider.[5]  The regulation provides:

A motion to reopen or . . . 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 reconsider, shall constitute a withdrawal of such motion.[6]

The alien in Rosillo-Puga argued that the above regulation should be declared invalid because it conflicts with the statute by restricting the ability to file a motion to reconsider or a motion to reopen to those aliens within the United States without any statutory support for doing so.  In support of his position, the alien relied on the Fourth Circuit’s determination in William v. Gonzales that the statute unambiguously gave an alien the right to file one motion to reopen, regardless of whether he is within or without the country.[7]  The Fourth Circuit in William held that the portion of the regulation which barred the filing of a motion to reopen by an alien who has departed the country subject to an order of removal to be invalid.

The Tenth Circuit rejected the Fourth Circuit’s position and instead agreed with the dissent in William and ruled that the statute was silent on whether an alien who had departed the country could file a motion to reopen or reconsider:

Specifically, we agree that, at the first step of the required Chevron analysis, the statute is simply silent on the issue of whether it meant to repeal the post-departure bars contained in the Attorney General’s regulations. We certainly cannot derive a clear meaning from the language about "an alien" or "the alien" having the opportunity to file "one" motion for reopening or reconsideration.[8]

Because the Tenth Circuit found the silence to be an ambiguity, it deferred to what it found to be a permissible construction of the statute by the agency.[9]

The point of departure between the William and Rosillo-Puga decisions is thus whether the statutory provisions granting an alien the right to file one motion to reopen or reconsider are ambiguous on the question of whether an alien who has been removed from the country can file such a motion.  If the statute is ambiguous, Chevron deference must be afforded.  If the statute is not ambiguous, courts must apply the unambiguously expressed intent of Congress.

The statute here simply provides that the “alien may file one motion to reconsider a decision that the alien is removable from the United States.”[10]  The statute then goes on to provide substantive requirements for the motion to reconsider and a time limit for filing.  Congress therefore codified limitations on the availability of a motion to reconsider and included no geographical limit.

The plain language of the statute contains no ambiguity on the geographical location of the alien.  The Rosillo-Puga decision is a misapplication of the Chevron doctrine in that it puts the cart before the horse.  The decision delves into an attempt to determine congressional intent as to whether Congress implicitly approved of or intentionally declined to codify a prior regulation on filing motions to reopen after deportation without finding any actual ambiguity within the statute itself.  Judge Lucero’s dissent in Rosillo-Puga recognizes this essential problem with the majority’s decision:

My colleagues’ reasoning conflicts with the thrust of Chevron: we are to initially look at the plain language of an act, and if there be any doubt, only then are we to look to the intent of Congress using additional tools of statutory construction. On the issue before us, a plain reading of the text of the statute compels the conclusion that § 1229a(c)(6)(A) and (7)(A) unambiguously guarantee all aliens the right to file one motion to reconsider and one motion to reopen.[11]

Judge Lucero’s dissent also provides the better analysis of the import of the Supreme Court’s decision in Dada v. Mukasey[12] to the issue at hand in Rosillo-Puga.  In Dada, the Supreme Court held that an alien must be permitted to withdraw his consent to a voluntary departure if necessary to safeguard the statutorily-guaranteed motion to reopen or reconsider.  The Dada court held that an alien must be allowed to withdraw his consent to a voluntary departure because the statute at 8 U.S.C. § 1229a(c)(7)(A) is clear and unambiguous in mandating that an alien must be allowed to file one motion to reopen.[13]  The Dada decision, according to Judge Lucero’s dissent, led to the “inescapable conclusion” that “an alien cannot be forced by regulation to forfeit a motion guaranteed by statute.”[14]

The Rosillo-Puga majority’s assertion that Dada implicitly holds that the regulations against filing motions to reconsider or reopen from abroad are valid is unconvincing.  The Supreme Court assumed the validity of the regulations in Dada because neither regulation was challenged.  The Dada court went so far as to explicitly state that it was not considering the validity of the regulations barring motions to reopen after departure from the country: “This regulation, however, has not been challenged in these proceedings, and we do not consider it here.”[15]  The attempt to use Dada as the court implicitly holding that the regulations are valid is thus contrary to the language of the decision.

The Tenth Circuit in Rosillo-Puga found ambiguity only after searching legislative history and the history of the regulations to try to discern congressional intent in enacting 8 U.S.C. § 1229a(c)(6)(A) and (7)(A).  After finding this ambiguity, the court found that it must defer to the agency interpretation under Chevron

A plain reading of the statute finds no ambiguity.  While codifying limitations on the substance and time limits for filing, Congress provided no geographical limitation.  If we were to accept the Tenth Circuit’s position that silence on this limitation is ambiguity, then we leave open the potential for arguments that Congress was also silent and therefore ambiguous on infinite other subsets of aliens’ right to file motions to reopen or reconsider.

The underpinning of the rationale for Chevron deference is that an agency has the expertise to interpret ambiguous statutory provisions within its orbit.  Here, there is no argument that the agency regulations are interpreting ambiguous statutes.  The plain language of the statute is clear and the agency exceeds its authority in precluding aliens from filing motions to reconsider or reopen from outside the country.


[1] Aaron Hall graduated from the University of Colorado School of Law in 2008.  He currently practices immigration law as an associate attorney with the Joseph Law Firm, P.C. in Aurora, Colorado.

[2] 580 F.3d 1147, 1150 (10th Cir. 2009).

[3] Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003).

[4] 8 U.S.C. § 1229a (c)(6)(A).

[5] See 8 U.S.C. §§ 1229a(c)(6)(B), (C).

[6] 8 C.F.R. § 1003.2(d).

[7] William v. Gonzales, 499 F.3d 329, 332 (4th Cir. 2007).

[8] Rosillo-Puga, 580 F.3d at 1156-1157.

[9] See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

[10] 8 U.S.C. § 1229a(c)(6)(A).

[11] Rosillo-Puga, 580 F.3d at 1163–64 (Lucero, J., dissenting) (citation omitted).

[12] See Dada v. Mukasey, 554 U.S. 1 (2008).

[13] See id. at 14-15.

[14] Rosillo-Puga, 580 F.3d at 1169.

[15] Dada, 554 U.S. at 22.