Petitioner Xue Yong Zhang seeks review of a May 22, 2009 decision by the Board of Immigration Appeals dismissing his appeal of an Immigration Judge's January 22, 2009 order, which terminated his reopened removal proceedings on the basis that he had already been removed from the United States. Because we conclude that the BIA is entitled to deference regarding its interpretation of the regulation governing motions to reopen, we hold that the BIA did not err by dismissing petitioner's appeal for want of jurisdiction. We further hold that the nunc pro tunc relief sought by petitioner is not warranted on these facts.
The opinion of the court was delivered by: Wesley, Circuit Judge
Before: MINER, CABRANES, and WESLEY, Circuit Judges.
Petitioner Xue Yong Zhang ("petitioner" or "Zhang") seeks review of a May 22, 2009 decision by the Board of Immigration Appeals ("BIA" or "Board"), which dismissed his appeal of an Immigration Judge's January 22, 2009 decision for want of jurisdiction. In 2003, the order calling for petitioner to be removed, as well as a finding by the Immigration Judge ("IJ") that petitioner had submitted a frivolous asylum application, became final. Five years later, in July 2008, petitioner filed a motion to reopen those proceedings and a request for a stay of removal. The motion was procedurally defective under the Immigration and Nationality Act ("INA"), see 8 U.S.C. § 1229a(c)(7), but petitioner asked the BIA to invoke its "sua sponte authority," see 8 C.F.R. § 1003.2(a).
The BIA declined to issue the stay, but it later granted the motion to reopen and remanded the proceedings to the IJ. However, by the time the BIA granted the motion, petitioner had already been removed. On remand, the IJ terminated the proceedings when she learned that petitioner was no longer physically present in the United States. In the decision challenged by petitioner here, the BIA vacated its prior order reopening the removal proceedings, reasoning that it lacked jurisdiction to consider petitioner's motion at that time because he had already been removed. In support of that conclusion, the Board cited the "departure bar" regulation, 8 C.F.R. § 1003.2(d), and its decision in In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008).
In his petition for review, petitioner contends that the departure bar, as applied by the BIA in this case, is invalid because it conflicts with the language of the regulation governing the BIA's sua sponte authority. Petitioner also asserts, in the alternative, that the BIA should have granted his motion to reopen, nunc pro tunc, as of the date that it denied his request for a stay of removal. This equitable relief, petitioner argues, would have avoided the application of the departure bar.
Although we are sympathetic to petitioner's plight, we are not persuaded, as a legal matter, by either contention. The BIA has taken the position in a precedential decision that the departure bar, where applicable, deprives it of jurisdiction to consider a motion to reopen that asks the Board to invoke its sua sponte authority. See In re Armendarez-Mendez, 24 I. & N. Dec. at 660. We conclude that the BIA's construction of this regulation is not plainly erroneous and is therefore entitled to deference. Consequently, the BIA did not err in relying on In re Armendarez-Mendez and deciding that it lacked jurisdiction to reopen petitioner's removal proceedings after he had been removed from the country.
We decline to resolve, however, whether the departure bar also precludes relief under the doctrine of nunc pro tunc. We need not take that additional step because, assuming, arguendo, that nunc pro tunc relief is not jurisdictionally foreclosed, petitioner is not entitled to that equitable remedy in this case. Accordingly, the petition is denied.
Zhang was born in China in 1978 and first came to the United States in October 1999. Because Zhang lacked valid entry documents when he arrived, the agency formerly known as the Immigration and Naturalization Service ("INS")*fn1 detained him and commenced removal proceedings. Petitioner conceded that he was subject to removal, and subsequently filed an application for withholding of removal, asylum, and relief under the Convention Against Torture. In his application, Zhang expressed "fear that [he would] be fined and sentenced to jail for at least a year" if he returned to China because he "violated the family planning policy and also left the country illegally without an exit permit."
After accepting briefing relating to the applications, IJ Noel Ferris conducted a merits hearing on April 4, 2001 in New York City. Before petitioner began his testimony, the IJ warned him that knowingly filing a frivolous asylum application would lead him to be "barred forever from receiving any benefits under the Immigration and Nationality Act." The IJ also defined in clear terms the meaning of the word "frivolous." Following these warnings, Zhang indicated that he understood the IJ's admonition and that he wished to proceed with the adjudication of his asylum application.
During his testimony at the merits hearing, petitioner asserted that he left China to escape political persecution based on China's family planning policies. Early in his testimony, the IJ warned petitioner that "vague" answers to questions from his attorney "impair[ed] [his] believability." Petitioner went on to explain that he married a woman in accordance with his cultural traditions, but that when she became pregnant the government informed them that both the marriage and the pregnancy were "illegal." Government officials then forced his wife to have an abortion and imposed a fine on the couple. Petitioner testified that he was incarcerated after he failed to pay the fine, but that he escaped custody and fled to the United States. The only documentary evidence petitioner produced in support of this testimony was a photograph that he described as depicting himself and his wife on their wedding day. The IJ did not allow petitioner to introduce the picture as evidence of the marriage, but she accepted petitioner's testimony describing the photo. Later, during the government's cross-examination of petitioner relating to statements during his credible fear interview, the IJ made an express finding that his testimony was not "credible, believable or factually accurate."
After petitioner's testimony was complete, the IJ issued an oral decision:
[N]ot only have I denied your applications[,] I have found your filing is entirely frivolous and therefore you will be barred for life from ever becoming legally resident in this country. . . . . . . .
I believe the lies you have told to the [c]ourt are material and I believe they were told to the [c]ourt purely to secure an [i]mmigration benefit.
In a decision issued on the same day, the IJ reviewed petitioner's testimony, characterized it as "absurd" and "just plain made . . . up from beginning to end," and concluded that petitioner had submitted "a frivolous application for asylum . . . supported entirely by . . . perjurious testimony." Petitioner filed an appeal, but the BIA affirmed the IJ's decision without an opinion on January 15, 2003. Petitioner did not seek review of that decision in this Court.
On July 15, 2008, Zhang filed a motion with the BIA seeking: (1) a stay of removal; and (2) to reopen his removal proceedings. Petitioner argued that "the BIA should exercise its sua sponte jurisdiction" to reopen the removal proceedings, see 8 C.F.R. § 1003.2(a), because the IJ's conclusion that his asylum application was frivolous was "invalid" based on the BIA's intervening decision in In re Y-L-, 24 I. & N. Dec. 151 (BIA 2007).
The BIA denied petitioner's motion for a stay of removal two days later, on July 17, 2008, based on its conclusion that "there [was] little likelihood that the motion [to reopen would] be granted." Petitioner was removed to China by the Department of Homeland Security ("DHS") on July 22, 2008. On September 10, 2008, apparently unaware of this fact, the BIA relied on its sua sponte authority to grant petitioner's motion to reopen. In that decision, the Board indicated that it did "not necessarily disagree with the [IJ's] ultimate finding" that petitioner had knowingly submitted a frivolous asylum application, but it remanded for "clarification" based on In re Y-L-.
On remand, on January 22, 2009, the IJ terminated the proceedings once she ascertained that petitioner was no longer physically present in the United States. Zhang's counsel appealed to the BIA. Counsel argued that the BIA had previously erred by denying his request for a stay, and that it should have granted his motion to reopen nunc pro tunc to a date prior to his removal to avoid the application of the departure bar. He also "preserve[d] for federal review" the argument that the departure bar conflicts with the provisions of the INA relating to motions to reopen.
On May 22, 2009, the BIA dismissed the appeal and vacated its September 10, 2008 order reopening petitioner's removal proceedings, reasoning that it "did not have jurisdiction" to grant that motion because petitioner had already been removed. In support of its jurisdictional holding, the BIA cited the departure bar, 8 C.F.R. § 1003.2(d), and In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). Following that decision, Zhang's counsel filed the instant petition for review.
This case requires us to consider the scope of the BIA's jurisdiction to reopen otherwise-final removal proceedings in response to a party's motion, where the motion to reopen is deficient under the INA and instead asks the Board to invoke its sua sponte authority. Specifically, we must decide whether the departure bar, 8 C.F.R. § 1003.2(d), divests the BIA of jurisdiction to grant an alien's motion to reopen based on the ...