[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14163

Non-Argument Calendar

________________________

Agency No. A070-607-107

RAFAEL MONTELONGO-CASTILLO, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 3, 2013)

Before BARKETT, MARCUS, Circuit Judges, and HUCK,* District Judge.

PER CURIAM: 

 

*

Honorable Paul C. Huck, United States District Judge for the Southern District of 

Florida, sitting by designation.

Case: 12-14163 Date Filed: 09/03/2013 Page: 1 of 3 
2

Rafael Montelongo-Castillo (“Montelongo”) seeks review of an order by the 

Board of Immigration Appeals (“BIA”) dismissing his motion to reopen

deportation proceedings. After review of the record, we affirm.1

 

Montelongo, a native and citizen of Mexico, was ordered deported from the 

United States in 1994, prior to the enactment of the Illegal Immigration Reform 

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub .L. No. 104-208, 110 

Stat. 3009. Montelongo reentered the United States without inspection in 1997, 

and in August 2012, pled guilty to illegal reentry in violation of 8 U.S.C. §§ 

1325(a) and 1326(b)(2). In January 2012, he filed a motion to reopen his 

deportation proceedings. The Immigration Judge (“IJ”) denied the motion, holding 

that she lacked jurisdiction to entertain the motion pursuant to the “departure bar” 

regulation, which prevents an IJ or the BIA from considering a motion to reopen 

filed by a person who has departed the United States, 8 C.F.R. §§ 1003.23(b)(1), 

1003.2(d). The BIA affirmed the IJ’s denial. Montelongo filed a second motion to 

reopen, requesting that the BIA reverse the denial based on our decision in Lin v. 

U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012), in which we held that the 

administratively-created departure bar impermissibly conflicted with the statutory 

right to file a motion to reopen removal proceedings codified in IIRIRA. The BIA 

 1 We review the denial of a motion to reopen for abuse of discretion. Ali v. U.S. Att’y 

Gen., 443 F.3d 804, 808 (11th Cir. 2006). However, questions of law are reviewed de novo. 

Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1233 n.3 (11th Cir. 2012).

Case: 12-14163 Date Filed: 09/03/2013 Page: 2 of 3 
3

denied the motion, concluding that Lin did not apply to Montelongo’s case because 

he was seeking to reopen pre-IIRIRA deportation proceedings, not removal 

proceedings. 

“The ‘general rule’ is that the 1996 amendments do not apply to aliens who 

are in deportation proceedings prior to April 1, 1997.” Cunningham v. U.S. Att’y 

Gen., 335 F.3d 1262, 1266 (11th Cir. 2003) (citing IIRIRA § 309(c)(1)(B)). 

IIRIRA explicitly mandates that “[deportation] proceedings (including judicial 

review thereof) shall continue to be conducted without regard to such 

amendments.” IIRIRA § 309(c)(1)(B). Because Montelongo’s deportation 

proceedings concluded in 1994, his case is governed by the pre-1996 Immigration 

and Nationality Act, which did not include a statutory right to file a motion to 

reopen.

2

 Consequently, our decision in Lin, which was based exclusively on the 

statutory text of IIRIRA and did not posit any independent right to file a motion to 

reopen, is also inapplicable to Montelongo’s case. Accordingly, because 

Montelongo left the United States, the BIA correctly determined that it lacked

jurisdiction to consider his motion to reopen pursuant to the departure bar. 

AFFIRMED. 

 

2 The BIA was authorized by administrative regulations from its outset in 1940 to reopen 

closed cases. See Lin, 681 F.3d at 1238-39; 8 C.F.R. § 90.10 (1940). However, this authority 

was discretionary. No pre-1996 regulations or statutes gave aliens a right to file a motion to 

reopen.

Case: 12-14163 Date Filed: 09/03/2013 Page: 3 of 3