UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CARLOS ENRIQUE 

RUBIO-MONTANO; GLORIA 

LETICIA REGALDO-HORTA, 

 Petitioners, 

v. 

ERIC H. HOLDER, JR., 

United States Attorney General, 

 Respondent. 

No. 13-9518 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and 

BACHARACH, Circuit Judge. 

 

 Carlos Enrique Rubio-Montano and Gloria Leticia Regaldo-Horta 

(“Petitioners”), a married couple who are natives and citizens of Mexico, seek review 

of the denial of their motion for reconsideration by the Board of Immigration Appeals 

(“BIA”). We deny the petition. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 4, 2013

Elisabeth A. Shumaker 

Clerk of Court
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I 

 Petitioners were admitted to the United States in September 2001 as 

nonimmigrant visitors authorized to remain until March 25, 2002. They stayed 

beyond that date without permission and took up residence in Oklahoma with the 

intent to stay permanently. In 2005, they were placed in removal proceedings. They 

conceded removability but successfully obtained an administrative closure of the 

proceedings to pursue a private bill in Congress to gain citizenship. After their effort 

proved fruitless, the removal proceedings were reopened, and in 2010 they appeared 

before an Immigration Judge (“IJ”). They did not seek any form of relief from 

removal but instead filed a motion to terminate the proceedings on the ground that, 

under the Law of Nations, they are de facto Oklahoma citizens, and there is no power 

enumerated in the Constitution that gives the federal government jurisdiction to 

remove Oklahoma citizens who were lawfully admitted to the United States. 

Therefore, they argued, the federal government could not authorize the Immigration 

Court to hold removal proceedings, and only the State of Oklahoma could remove 

them. The government responded that the Immigration Court had exclusive 

jurisdiction under 8 U.S.C. § 1252(g). 

The IJ rejected Petitioners’ arguments, observing that the Constitution gives 

Congress the authority to “establish an uniform Rule of Naturalization,” U.S. Const. 

art. I, § 8, cl. 4 (“Naturalization Clause”), and Congress has done precisely that in 
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enacting a plenary and exclusive federal statutory immigration framework. The IJ 

therefore determined he had jurisdiction and ordered Petitioners removed. 

Petitioners appealed to the BIA, largely reiterating their previous arguments 

but also suggesting that naturalization and removal were separate powers. The 

purpose of the Naturalization Clause, Petitioners argued, was to ensure uniform 

citizenship requirements among the states. Petitioners claimed that the 

Naturalization Clause grants no removal power to the federal government. The 

government responded with a motion for summary affirmance. The BIA affirmed, 

citing Arizona v. United States, 132 S. Ct. 2492 (2012), and Toll v. Moreno, 

458 U.S. 1 (1982), for the proposition that the federal government has broad 

authority over immigration and alien status. That power, the BIA said, derives from 

the Naturalization Clause and the federal government’s “inherent power as sovereign 

to control and conduct relations with foreign nations.” The BIA concluded that the 

federal government has exclusive power “to promulgate laws governing the 

admission and removal of aliens,” and therefore the Immigration Court had 

jurisdiction under § 1252(g). 

Petitioners did not seek judicial review of the BIA’s decision. They instead 

filed a motion for reconsideration. In addition to restating their previous arguments, 

they contended that Arizona was inapplicable because it did not concern the precise 

jurisdictional issue Petitioners raised. They also claimed that, based on the 
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government’s failure to file a response brief, the BIA should have deemed their 

appeal unopposed and terminated the removal proceedings. 

The BIA denied reconsideration, finding no error in its previous decision and 

concluding that a substantial portion of the motion consisted of the same arguments 

advanced in the underlying appeal. The BIA also rejected the argument that it should 

have considered the motion unopposed because “section 4.12(a) of the [BIA’s] 

Practice Manual expressly provides that ‘the failure of the opposing party to 

affirmatively oppose an appeal does not automatically result in the appeal being 

sustained,’” and, in the alternative, the government had opposed the motion by filing 

a motion for summary affirmance. 

II 

 To the extent Petitioners seek to challenge the BIA’s underlying order 

upholding the IJ’s decision, we lack jurisdiction to review that order because they 

“did not timely file a petition for review from that order within thirty days as 

required by 8 U.S.C. § 1252(b)(1).” Infanzon v. Ashcroft, 386 F.3d 1359, 1361 

(10th Cir. 2004). Their petition is timely with respect to the BIA’s order denying 

their motion for reconsideration, and we therefore have jurisdiction to review that 

denial. We review the denial of a motion for reconsideration for abuse of discretion, 

Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003), and any legal or 

constitutional questions de novo, Lorenzo v. Mukasey, 508 F.3d 1278, 1282 

(10th Cir. 2007). “The BIA abuses its discretion when its decision provides no 
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rational explanation, inexplicably departs from established policies, is devoid of any 

reasoning, or contains only summary or conclusory statements.” Infanzon, 386 F.3d 

at 1362 (quotation omitted). 

 Petitioners have failed to demonstrate any error. We first reject Petitioners’ 

contention that the BIA ignored points of legal error raised in their motion. The BIA 

correctly denied reconsideration of any previously raised arguments. See Ahmed v. 

Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004); In re O-S-G, 24 I. & N. Dec. 56, 58 

(BIA 2006). Second, the BIA did not—as Petitioners argue—refuse to treat their 

motion as unopposed. Instead, it properly applied § 4.12(a) of its Practice Manual, 

which states in relevant part that “the [BIA] may consider the opposing party’s 

silence in adjudicating the appeal, [but] the silence does not dictate the disposition of 

the appeal.” 

Third, although the BIA did not explicitly provide an explanation for rejecting 

Petitioners’ argument that Arizona was inapplicable, the motion for reconsideration 

fails to demonstrate any error of law in the BIA’s disposition of the appeal. In 

relevant part, the Arizona Court stated that “[t]he Government of the United States 

has broad, undoubted power over the subject of immigration and the status of aliens.” 

Arizona, 132 S. Ct. at 2498. And prior to Arizona, the Supreme Court explained that 

the federal government, not the states, has the power to regulate admitted aliens 

before naturalization: 

The Federal Government has broad constitutional powers in determining 

what aliens shall be admitted to the United States, the period they may 
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remain, regulation of their conduct before naturalization, and the terms 

and conditions of their naturalization. Under the Constitution the states 

are granted no such powers; they can neither add to nor take from the 

conditions lawfully imposed by Congress upon admission, 

naturalization and residence of aliens in the United States or the several 

states. 

Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948) (citation omitted); see 

also Carlson v. Landon, 342 U.S. 524, 534 (1952) (“So long . . . as [legally admitted] 

aliens fail to obtain and maintain citizenship by naturalization, they remain subject to 

the plenary power of Congress to expel them under the sovereign right to determine 

what noncitizens shall be permitted to remain within our borders.”). The Court has 

further stated that “Federal authority to regulate the status of aliens derives from 

various sources,” including the Naturalization Clause and the Foreign Commerce 

Clause, as well as the federal government’s “broad authority over foreign affairs.” 

Toll, 458 U.S. at 10. Petitioners’ claim that their status as inhabitants of Oklahoma 

prevents the federal government from enforcing its immigration laws against them 

lacks any basis in precedent. Petitioners conceded that they were statutorily 

removable and the BIA properly concluded that it had jurisdiction over Petitioners. 

We therefore conclude that the BIA did not abuse its discretion in denying the motion 

for reconsideration. 

 
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III 

We DENY the petition for review. 

 Entered for the Court 

 

 Carlos F. Lucero 

 Circuit Judge