Jose Lisboa v. ERIC H. HOLDER, Jr. Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0636n.06
No. 09-4521
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSE LISBOA,
Petitioner-Appellant,
v.
ERIC H. HOLDER, Jr.
Attorney General,
Respondent-Appellee.
On Petition for Review of an Order of the
Board of Immigration Appeals
O P I N I O N
Before: COLE and ROGERS, Circuit Judges; and SARGUS, District Judge.*
SARGUS, District Judge. This case involves an appeal from a decision by the Board of
Immigration Appeals (“BIA”) overruling an Immigration Court’s grant of Petitioner/Appellant Jose
Lisboa’s motion to reopen removal proceedings. Because the BIA incorrectly concluded that it
lacked jurisdiction to consider Lisboa’s claims for relief, we vacate and remand this action to the
BIA for further proceedings.
I.
Jose Lisboa (“Lisboa”) is a citizen of Brazil. At the age of seven, Lisboa entered the United
States with his parents, and became a Lawful Permanent Resident of the United States. In 1994, he
married Kimberly Klimlzak, a United States citizen, with whom he has one daughter.
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting*
by designation.

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A few years after the birth of their daughter, Lisboa and Kimberly divorced. Following their
divorce, Lisboa was criminally charged in state court with conspiracy to commit felonious assault,
conspiracy to commit possession of drugs, and possession of criminal tools. Pursuant to a plea
agreement, he pleaded guilty to one count of aggravated assault in violation of Ohio Revised Code
§ 2903.12, and one count of domestic violence in violation of § 2919.25. As a consequence of his1
plea, Lisboa was sentenced to ten years of community control. He agreed to leave the United States
voluntarily within forty-five days and not to seek reentry for at least ten years. Before he could
voluntarily depart, however, Lisboa was arrested and placed in removal proceedings.
An Immigration Court found Lisboa removable on the basis of his criminal convictions and
entered an order of removal. Lisboa appealed that order to the BIA but later withdrew his appeal,2
submitted to removal, and departed the United States.
After his removal, Lisboa filed a motion for a new trial in his state criminal case. In that
motion, Lisboa argued, among other contentions, that he did not enter into a knowing and voluntary
plea because he thought that he could prevent deportation and that he was denied effective assistance
of counsel because his attorney failed to advise him that he could be deported. He also filed a3
collateral attack in the state trial court, challenging his convictions. Like his motion for a new trial,4
Lisboa’s collateral attack contended that he received ineffective assistance of counsel regarding the
plea agreement and removal. After an oral hearing, the state trial court denied both motions. Lisboa
Lisboa entered his plea agreement on September 24, 2004.1
Removal was effected pursuant to INA § 237(a)(2)(A)(ii), codified at 8 U.S.C. § 1227(a)(2)(A)(ii), which2
authorizes removal for conviction of a crime of moral turpitude, and INA § 237(a)(2)(E)(i), codified at 8
U.S.C. § 1227(a)(2)(E)(i), which authorizes removal for conviction of a crime of domestic violence, stalking
or child abuse.
The motion for new trial was filed on April 21, 2006.3
Lisboa filed his petition for post-conviction relief on September 5, 2006.4
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then appealed to the Ohio Court of Appeals in Cuyahoga County. Before that court, Lisboa asserted
the following assignments of error:
I. Appellant was denied his right to due process under the Fourteenth Amendment
to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
II. Appellant was denied effective assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution; and Article I, Section 10
of the Ohio Constitution.
III. The trial court erred in failing to grant Appellant’s motion for new trial.
The state court of appeals did not reach Lisboa’s claims of asserted error but instead
determined that the sentence imposed exceeded the statutory maximum. Because the plea served
as consideration for the sentence to which Lisboa agreed, the court vacated both the sentence and
the underlying plea.
Within fifty-five days of that decision, Lisboa filed a motion in the Immigration Court to5
reopen his removal proceedings on the ground that the convictions serving as the basis for his
removal had been vacated. Lisboa argued that the Immigration Court had the authority to reopen
removal proceedings despite Lisboa’s post-removal departure because the statutory provisions of
the INA give an alien the right to file one motion to reopen irrespective of the alien’s presence in
the United States. See INA § 240(c)(7)(A), codified at 8 U.S.C. § 1229a(c)(7). In Lisboa’s view,6
the regulation barring the filing of post-departure motions to reopen, 8 C.F.R. § 1003.2(d), was
The Ohio Court of Appeals entered its order vacating Lisboa’s convictions on February 14, 2008. Lisboa5
filed his motion to reopen with the Immigration Court on April 10, 2008.
Section 1229a(c)(7) governs motions to reopen and provides that, with exceptions that do not apply to this6
case, “An alien may file one motion to reopen proceedings under this section.” 8 U.S.C. § 1229a(c)(7)(A).
Section 1229a(c)(7)(B) prescribes the content of such motions: “The motion to reopen shall state the new
facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” Section 1229a(c)(7)(C) sets the time limit for the filing of a motion to reopen.
It provides that, with exceptions that do not apply to this case, “the motion to reopen shall be filed within 90
days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C).
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invalid because it conflicted with clear statutory language permitting each alien subject to a removal
order to file one motion to reopen without differentiating between an alien who is physically present
in the United States and one who is abroad. In support of his position, Lisboa cited William v.7
Gonzales, 499 F.3d 329 (4th Cir. 2007), a case from the United States Court of Appeals for the
Fourth Circuit, which held the post-departure bar invalid as contrary to the statutory language.8
Lisboa then argued that the Immigration Court had authority to reopen the proceedings “at any time”
pursuant to its regulatory sua sponte authority. See 8 C.F.R. § 1003.23(b). The argument here9
appears to be that the authority to reopen “at any time” encompasses motions filed by aliens whose
removal from the United States has been effected. The government did not file a responsive brief.10
The Immigration Court granted Lisboa’s motion to reopen, terminated the charges of removability
against Lisboa, and granted Lisboa’s motion to vacate the removal order and terminate removal
The post-departure bar provides in pertinent part: “A motion to reopen or a motion to reconsider shall not7
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.” 8 C.F.R. § 1003.2.
Lisboa did not address the time limitations bar to the statutory motion. Although at least one court has8
interpreted William’s holding to be based in part upon the determination that the vacatur of the alien’s
conviction in that case restarted the 90-day period for filing, see Ovalles v. Holder, 577 F.3d 288, 295-96 (5th
Cir. 2009), Lisboa, for whatever reason, addressed only the post-removal bar, and not the time limitation, as
an impediment to his motion.
In relevant part, the regulation governing an immigration judge’s sua sponte authority to reopen removal9
proceedings provides:
An Immigration Judge may upon his or her own motion at any time . . . reopen or reconsider
any case in which he or she has made a decision, unless jurisdiction is vested with the Board
of Immigration Appeals. . . . A motion to reopen must be filed within 90 days of the date of
entry of a final administrative order of removal, deportation, or exclusion . . . . A motion to
reopen or to reconsider shall not be made by or on behalf of a person who is the subject of
removal, deportation, or exclusion proceedings subsequent to his or her departure from the
United States.
8 C.F.R. § 1003.2(b)(1).
According to the government, the Immigration Court Clerk’s Office erroneously informed the government10
that no motion had been filed.
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proceedings. The Immigration Court rejected Lisboa’s contention that he was entitled to file a
motion to reopen as of right pursuant to 8 U.S.C. § 1229a(c)(7) irrespective of his post-removal
absence from the United States. The Immigration Court agreed, however, that it could reopen the11
matter sua sponte pursuant to 8 C.F.R. § 1003.23(b) if Lisboa demonstrated an “exceptional
situation” warranting relief, as required by In re J-J-, 21 I. & N. Dec. 976 (B.I.A. 1997). Relying
upon prior BIA decisions, the Immigration Court found that the vacatur of Lisboa’s convictions
constituted exceptional circumstances. In particular, the Immigration Court cited In re Rodriguez-
Ruiz, 22 I. & N. Dec. 1378 (B.I.A. 2000), for the proposition that courts generally give full faith and
credit to state court actions that vacate an alien’s criminal conviction, and it cited In re Adamiak, 23
I. & N. Dec. 878 (B.I.A. 2006), and In re Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003), for the
proposition that a state criminal conviction or plea that is vacated because of substantive defects in
the underlying proceedings, and not for rehabilitative or immigration purposes, is also vacated for
immigration purposes.
The Government appealed to the BIA seeking to overturn the Immigration Court’s decision
to reopen Lisboa’s removal proceedings. The BIA vacated the Immigration Court’s decision and
reinstated the order of removal. In reaching its decision, the BIA first concluded that the
Immigration Court lacked jurisdiction to reopen the removal proceedings because of Lisboa’s post-
removal departure. In the alternative, the BIA concluded that, even if there was an exception to the
departure bar for sua sponte reopenings, the Immigration Court erred in reopening removal
The Immigration Court determined that William was inapplicable because Lisboa’s case is subject to Sixth11
Circuit precedent, not the precedent of the Fourth Circuit (which governed the William petitioner’s case).
(A.R. 323.) The Immigration Court also stated that William was distinguishable because Lisboa’s motion
to reopen was not timely filed after his removal. (A.R. 323.) The Immigration Court did not elaborate on
the timeliness issue and appears to have disregarded the timing defect in the William petitioner’s motion,
which was filed approximately two months after the 90-day deadline required by 8 U.S.C. § 1229a(c)(7)(C)
and 8 C.F.R. § 1003.2(c)(2). See William, 499 F.3d at 331 (noting that the William petitioner was removed
on July 11, 2005 and the motion to reopen was filed more than five months later, on December 21, 2005).
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proceedings because Lisboa’s case did not present exceptional circumstances warranting sua sponte
reopening. Proceeding pro se, Lisboa filed a motion for reconsideration of the BIA order reinstating
the removal order. In that motion, Lisboa asked the BIA to review his case in light of his claim that
he received ineffective assistance of counsel in his criminal proceedings.12
Immediately after filing his motion for reconsideration, Lisboa filed a petition for review in
this Court. The BIA had jurisdiction over this matter pursuant to 8 C.F.R. § 1003.1(b)(3), which
confers appellate jurisdiction over decisions of immigration judges in removal proceedings. This
Court has jurisdiction under 8 U.S.C. § 1252(a), which vests in the Court of Appeals exclusive
jurisdiction to review final orders of removal. Lisboa’s petition for review was timely filed in this
Court within thirty days of the BIA’s order. INA § 242(b), 8 U.S.C. § 1252(b)(1). Venue lies in this
Court because the proceedings before the Immigration Judge were completed in Cleveland, Ohio,
within this judicial circuit. 8 U.S.C. § 1252(b)(2).
We review for abuse of discretion the BIA’s decision to grant or deny a motion to reopen.
Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). The BIA abuses its discretion when the
decision to deny the motion “was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination against a
particular race or group.” Id. (citation and internal quotation marks omitted). Although the overall
standard of review is for abuse of discretion, relevant legal issues implicated by the BIA’s decision
are subject to de novo review. Id.
In vacating the Immigration Court’s decision and reinstating the order of removal, the BIA
first concluded that the Immigration Court lacked jurisdiction to reopen the removal
Although Lisboa filed a petition for review in this Court before the BIA issued a decision on the motion for12
reconsideration, this Court nevertheless has jurisdiction to consider the petition for review. See Stone v.
I.N.S., 514 U.S. 386, 398-400 (1995).
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proceedings because Lisboa had departed the United States subject to an order of removal. In the
BIA’s view, the post-departure bar at 8 C.F.R. § 1003.23(b)(1) “prohibited the Immigration Judge
from reopening the [alien’s] removal proceedings—even sua sponte—after his departure from the
United States under a final administrative order of removal.” (A.R. 41 (citing In re Armendarez-
Mendez, 24 I. & N. Dec. 646 (BIA 2008)).) Title 8 of the Code of Federal Regulations, Section
1003.23(b)(1) contains the provision widely referred to as the post-departure bar. This regulatory
provision provides in relevant part: “A motion to reopen . . . shall not be made by or on behalf of
a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or
her departure from the United States.” 8 C.F.R. § 1003.23(b)(1).13
The BIA rejected Lisboa’s reliance on William, 499 F.3d 329, in arguing that the regulatory
post-departure bar was contrary to the statute. According to the BIA, its decision in In re
Armendarez-Mendez had previously considered the same arguments presented in William and had
rejected them. As of the time of its decision in this case, the BIA observed that this Court had not
held contrary to Armendarez-Mendez’s position that the post-departure bar was a “‘jurisdictional’
principle” preventing the agency from reopening removal proceedings for aliens already removed.
This Court recently held in Pruidze v. Holder, 632 F.3d 234, 235 (6th Cir. 2011), that the
BIA has jurisdiction to consider motions to reopen filed by aliens who have departed the United
States subject to an order of removal. Pruidze is dispositive of whether the BIA has jurisdiction to
consider Lisboa’s motion to reopen despite his post-removal departure from the United States. In
Pruidze, the petitioner was found removable based upon a state court conviction for a controlled-
This provision applies to immigration courts. A substantively identical provision applies to the BIA. See13
8 C.F.R. § 1003.2(d) (“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.”).
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substance crime. 632 F.3d at 235. Shortly after he was removed from the United States, the
petitioner filed a motion in state court to reopen his criminal proceedings on the ground that he had
entered a guilty plea without benefit of counsel. Id. The state court set aside the conviction and
redocketed the case. Id., at 235. The petitioner timely moved the BIA to reopen his removal
proceedings on the ground that the state court had set aside the conviction that formed the basis for
his removal. Id. The BIA denied the motion. Id. Relying on Armendarez-Mendez, a BIA14
decision upon which the Government heavily relies in this action, the BIA held that it lacked
jurisdiction to hear the petitioner’s motion. Id. According to the BIA, the post-removal departure
bar at 8 C.F.R. § 1003.2(d) divested the BIA of jurisdiction to consider motions to reopen filed by
aliens who are abroad. Id.
On review, the Pruidze court rejected the proposition that the BIA’s post-departure bar erects
a jurisdictional barrier to entertaining a motion to reopen by a removed alien located outside the
United States. Id. According to Pruidze, no statutory provision or caselaw supported the BIA’s
conclusion that it could “contract its power to hear claims that fall plainly within its statutory
jurisdiction.” Id. at 240 (citing Union Pac. R.R. v. Bhd of Locomotive Eng’rs, 130 S. Ct. 584 (2009);
Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006)).
Although the BIA’s decision in this case rested upon its belief that the post-departure bar at
8 C.F.R. § 1003.2(b)(1) divested the Immigration Court of jurisdiction, the regulations use identical
language. Thus, in light of Pruidze, the BIA’s decision in this action must be vacated to the extent
that it denied relief based upon an erroneous conclusion that the Immigration Court lacked
jurisdiction to consider Lisboa’s motion to reopen. This conclusion does not necessarily mean that
The timeframe in Pruidze was significantly shorter than that in the case before us. The petitioner’s removal14
in Pruidze was effected on April 29, 2009. He filed his motion to reopen his criminal proceedings six days
later. The state court set aside his conviction on May 12, 2009. On May 29, 2009, the petitioner filed his
motion to reopen removal proceedings. Pruidze, 632 F.3d at 235.
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the departure bar is always an invalid regulation in the context of a decision by the BIA or
Immigration Court not to reopen removal proceedings under its sua sponte authority. As Pruidze
noted:
Whether the regulation itself –essentially a mandatory claim-processing rule to the
effect that the [BIA] categorically will reject motions to reopen filed by aliens who
have left the country or will always treat such motions as withdrawn upon the alien’s
departure—is valid is a different matter, one that has divided the lower courts,
compare Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) [(finding § 1003.2(d)
inapplicable to involuntary departures)], and Contreras-Bocanegra v. Holder, 629
F.3d 1170, 2010 WL 5209228 (10th Cir. 2010), with William v. Gonzales, 499 F.3d
329 (4th Cir. 2007) [(invalidating 8 C.F.R. § 1003.2(d) in its entirety)], and one on
which this court has taken a partial position, see Madrigal v. Holder, 572 F.3d 239
(6th Cir. 2009) (holding that the departure rule does not apply to the involuntary
removal of aliens).
Pruidze, 632 F.3d at 238. It does mean, however, that the BIA cannot disclaim jurisdiction on the
ground that the alien is outside the United States, which is the basis for the BIA’s decision here.
The BIA’s alternative conclusion was based on the assumption that if the IJ had jurisdiction
to reopen, such jurisdiction was limited to sua sponte reopenings. On remand, the BIA must
exercise its jurisdiction to determine whether or not to uphold the reopening, whether the reopening
is considered to be on Lisboa’s motion or sua sponte.
III. Conclusion
For the foregoing reasons, we vacate the BIA’s order and remand for further proceedings.
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