### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

Nos. 11-60549 & 11-60706

GIBRIEL LARI, also known as Lari Gibriel,
Petitioner
v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent.

Petitions for Review of an Order of the Board of Immigration Appeals

Before JOLLY, DeMOSS, and STEWART, Circuit Judges. CARL E. STEWART, Circuit Judge: Gibriel Lari is a Ghanaia n c itizen who, in 2010, was charged with being removable because he was an alien present in the United States without being admitted or paroled. That same year, Lari applied for asylum. After conducting

a hearing, an Immigration Judge denied Lari’s request for asylum, withholding

o f r emoval, and Convention Against Torture protection. Lari appealed th e Immigration Judge’s decision to the Board of Immigration Appeals. In July 2011, the Board dismissed Lari’s appeal. On August 2, 2011, Lari filed a motion to reconsider, which was denied by the Board the following month. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 7, 2 012 Lyle W . Cayce Clerk Case: 11-60549 Document: 00512001605 Page: 1 Date Filed: 09/27/2012Nos. 11-60549 & 11-60706

In denying his motion, the Board concluded that it lacked jurisdiction over his motion because Lari was removed on August 23, 2011. Lari has filed two petitions for review. The first petition seeks review of the dismissal of his appeal; the second petition requests review of the denial of his motion to recons i d er. For the following reasons, we deny his first petition and grant his second petition for review. I. A. Gibriel Lari is a native an d c i t i z e n of Ghana. Prior to April 2008, Lari worked as a representative for a shipping company in China. This company was

u s e d by Ghanaians to ship products they purchased in China back ho m e t o Ghana. In April 2008, the shipping c o mpany went out of business. According to Lari, the company failed because the owner was stealing both the go o ds his company was entrusted to ship and the money that was paid for shipping. After the company’s dissolution, Lari left China and went to Thailand. One month into his stay in Thailand, Lari packed his bags and flew to Mexico. During his time in Mexico, Lari met a woman online and, while vis i t i ng her, was kidnapped. The kidnappers requested a ransom that was subsequently paid by Lari’s mother. After the payment of th e ransom, Lari was released inside the United States in March 2009. According to his testimony, he entered the United States in Tucson. Lari spent a couple of months in Tucson before moving to Phoenix. He had di f f iculties obtaining work in Phoenix given his lack of proper documentation and, after spending a couple months there, decided to head to New York. On his way to New York, he was stopped at a Border Patrol checkpoint. A Notice to Appear was issued on July 20, 2010. In it, the Department of Homeland Securi ty alleged that Lari (1) was not a citizen or national of the

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United States; (2) was a native and citizen of Ghana; (3) arrived in the United States at or near Tucson on or about May 15, 2010; and (4) was neither inspected

nor admitted by a Customs and Border Protection Officer of the Department of Homeland Security. Based on th e s e allegations, Lari was charged with being removable because he was an “alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Secretary of [the] Department of Homeland Security.” B. 1. After he was placed in removal proceedings, Lari attended a group removal hearing on September 15, 2010. Once he finished accepting pleadings and requests from individuals who were represented by counsel, the Immigration Judge addressed those individuals w h o w ere unrepresented, including Lari. The Immigrat i o n J udge began by advising them of, among other things, their right to an attorney, to a hearing, and to appeal his decision to the Board. The Immigration Judge then provided them a chance to declare their intention of obtain i n g a lawyer. He subsequently asked the group the following three questions: (1) “If any of you were born in the United States of America or any of

our territories overseas would you please stand at this time?”; (2) “If your mother

or your father is or has ever been a citizen of the United States would you please stand[? ] ” ; a n d ( 3 ) “If you are going to claim you are a citizen or national of the U n i t e d States would you please stand at this time?” No one stood in response to these questions. Onc e th i s brief line of inquiry ended, the Immigration Judge addressed several individuals who were charged with removability on several s e p a r a t e groun d s . At the conclusion of that portion of the proceedings, he turned his

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attention to those individuals who, like Lari, had been “charged with being physically present in the United States without admission o r p a role by an Immigration officer.” After announcing this charge, th e I m mi gr atio n Judge then asked members of the group to stand if they contested the charge or thought it was incorrect. No one stood in response to this question. Also in this portion of the hearing, the Immigrat ion Judge asked the remaining individuals a series of four questions to find out if any of them were eligibl e t o a p p ly for relief from deportation. For the fourth question, he asked if any of these individuals had a “well-founded fear of persecutio n” o r feared “torture at the hands of th e government or anyone else that they [could not] control in [their] home country[.]” At this point, Lari stood up to affirmatively respond to the question. The Immigration Judge then asked Lari to have a seat at a table and told Lari he wanted to talk to him in private about his response. After discussing voluntary departure with the other remaining members of the original group, the Immigration Judge turned his attention back to Lari who, by then, had already filed an application for asylum. During their brief 1 discussion, Lari told the Immigration Judge that he was a native and citizen of Ghana and that he had entered the United States in May 2010. The Immigration Judge then set an expedit e d a s ylu m h e arin g for December 27, 2010.

In the asylu m app licatio n h e f i led on the dat e of the group rem oval hearing, Lari 1 st ated t h a t h e wa s a Mus lim fr om Gh ana and belon ged to the Chada ethn ic group
. He als o indi cat ed thathi s las t addres s bef orec om ing t o t he Unit ed Sta tes w as in Accr a, Gh ana. Altho ugh he did not pr ovide any st atut ory bas is for a s yl um, he did chec k a box indi cat ing that he wa s se eking wi thho ldi ng of rem oval unde r the Convent ion Agains t Tort ure. As the bas is for his clai me d fea r of ret urning to Gh ana, Lari st ated , “[ I] [f ]ea r tor tur e fr om the com pany failure and I wo uld be held acc ount able for this fai lure .” L a ter in his pet itio n, he dec lare d that he belie ved he wo uld be tor tur ed in Gh ana beca use he wo uld be held acc ount able fort he “uns ucc es sf

ul [c oncl usi on] of

t he com pany bus ines s ope rat ions .” 4 Case: 11-60549 Document: 00512001605 Page: 4 Date Filed: 09/27/2012Nos. 11-60549 & 11-60706 2. Despite b ein g s ch e dul e d for December 27, 2010, Lari’s asylum hearing was held on February 16, 2011. At the beginni n g o f the hearing, the Immigration Judge stated the following: This case began with the issuance of a Notice to Appea r by the Department of Homeland Security on July 20, 2010; subsequently filed with the Court the next day. During the course of a Master Calendar hearing conduced on September 15, 2010, [Lari] admitted the factual allegations contained in the Notice to Appear. The Court does not accept concessions of deportability from unrepresented Respondents, but based on the un-controverted admissio n s the Court finds [Lari] is physi c al l y present in [the] United States without admission or parole by an Immigration officer in violation of 21(a)(6)(A)(i) of the Immigration and Nationality Act.
After proceeding to take an inventory of the exhibits before him, the Immigration J u d g e m oved on to asking Lari questions about his application. During t h i s questioning, Lari told the Immigration Judge about the problems experienced by the company he worked for in China, his stops in Thailand and Mexico, and the circumstances surrounding his arrival in the United States. Lari also provided addi t i o n al details regarding his fear of returning to Ghana. In response to the Immigration Ju dge’s questioning, Lari stated that the customers who lost their money and goods were looking for the u n s c r upulous

owner of the shipping company, but could not find him. Because the customers could n ot locate the owner, Lari stated that these people were holding him responsible for their losses. Lari testified that s o m e o f these customers threatened either to torture or kill him. 3. D e s p i te finding Lari’s testimony “direct, plausible, and credible,” th e Immigration Judge denied relief and ordered that Lari be removed. Lari then appealed the Immigration Judge’s decision. On appeal to the Board, Lari raised

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a number of alleged substantive and procedural def ects in the proceedings before the Immigration Court. The Board rejected Lari’s arguments and dismissed his appeal on July 14, 2011. Two weeks later, Lari filed a motion to reconsider. While his motion was pending, Lari was removed from the United States. Given his removal, the Board applied the departure regulation, 8 C.F.R. § 1003.2(d), concluded that it lacked jurisdiction over the motion to reconsider, and denied Lari’s m o t i o n on this basis. Two petitions are presently before us. The f i r s t petition for review involves the Board’s dismissal of Lari’s appeal. The second relates to the denial of his motion to reconsider. II. A. Lari’s two petitions raise distinct issues. In his first petition, Lari asserts that he was not properly found to be removabl e . According to him, the Immigration Judge did not take the required plea di n g prior to sustaining the

c h a r g e of removability. In addition, Lari contends that he was erroneou s l y denied asylum, withholding of removal, and Convention Against T o rt ure protection. As his final set of arguments in his first petition, Lari maintains that the Immigration Judge violated several statutory and regulatory provisions in conducting his removal proceedings. L a ri ’ s second petition involves a narrow question of law: whether the departure regulation provides a valid ba s i s for denying his motion to reconsider. After briefing on these two petitions was completed, the Attorney General filed a motion to remand the proceedings related to Lari’s first petition. In this motion, the At t o r n ey General raised questions regarding the adequacy of the pleading that was used to sustain Lari’s charge of removability. In light of these

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questions, we will refrain from addressing the substance of Lari’s first petition. We will instead focus our attention on his second petition. B. The Board applied the following regulation in denying Lari’s motion to reconsider: A motion to reopen o r 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. Any departure from the United States, including the deportation or removal of a p e r son who is the subject of exclusion, deportation, or removal proceedings, occur ri ng after the filing of a motion to reopen or a m o tion to reconsider, shall constitute a withdrawal of such motion.
8 C. F

. R

. § 1 0 03.2(d). This regulation, which has an analogue applicable to proceedings before an Immigration Court, see8 C.F.R. § 1003.23(b)(1), is what has thus far been referred to as the departure regulation. In a companion case, we c o n c l u ded that, under Chevron , the departure regulation could not be applied to statutorily authorized motions to reopen. See Garcia Carias v. Holder , 11-60550. In this case, we follow a similar analysis and hold that the d e p a rt ure regulation also cannot be applied to statutorily authorized motions to reconsider. 1. When it comes to the Board’s interpretation of immigration statutes, we defer t o th e extent prescribed by the two-step analysis set forth in Chevron

. Khalid v. Holder , 655 F.3d 363, 366 (5th Cir. 2011) (c i t a t ion omitted). Under Chevron ’s first step, we must deter m i n e w h ether the statute at issue is ambiguous. “‘If the intent of Congress is clear,’–that is, th e s t a tute is unambiguous with respect to the question presented– ‘the court, as well as the agency, must give effect to the unambiguously express e d intent of Congress.’” Id. (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467

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U.S. 837, 842-43 (1984)). To determine whether a statute is ambiguous, we must employ the traditional tools of statutory in t e r p r etation. Id. (citation omitted). “Chief among these, of course, is the ‘plain language of the statute.’” Id. (quoting In re Dale , 582 F.3d 568, 573 (5th Cir. 200 9)). If a p r ovi s i on is ambiguous as to the question presented, the analysis proceeds to Chevron’s second step, which asks “whether the agency’s answer is based on a permissible construction of the statute.” Id. (citat i on omitted). In considering this second step , w e may evaluate “‘only whether the decision is arbitrary, capricious, or manifestly contrary’ to the statute, and may not

s ubstitute our own judgment ‘for a reasonable alternative formulated by the [Board].’” Id. (quoting Mortera-Cruz v . Gonzales , 409 F.3d 246, 253 (5th Cir. 2005)). 2. By statute, an alien has the right to file one motion to reconsider. 8 U.S.C. § 1229a(c)(6)(A); cf. Dada v. Mukasey , 554 U.S. 1, 15 (2008) (inte rpreting an analogous statutory provision as creating a right to pursue a motion to reopen). The statute specifically states the following: “The alien may file one motion to

recons ider a decision that the alien is removable from the United States.” 8 U.S.C. § 1229a(c)(6) (A)

. A s is evident by its clear terms, the statute does not distinguish between those aliens who are abroad and those who remain in the United States–the unmodified “alien” captures both. Congress could have, but did not, distinguish between the two classes of aliens in creating this right to file

a motion to reconsider. Under our reading, the statute is facially unambiguous. Because the s t a t u t e is facially unambiguous, we adhere to its plain meaning. See Cheshire v. Comm’r , 282 F.3d 326, 336-37 (5th Cir. 20 02) (“Unless the text of a statute is amb i gu o u s o n its face, this court adheres to that statute’s plain meaning.”). Giving the statute its plain meaning, w e c o n c lude that an alien’s ability to exercise his statutory right to file a motion to reconsider is not

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contingent upon his presence in th e U nited States. The departure regulation therefore cannot serve as a basis for d e nyi n g a l iens who have departed the United States their statutorily authorized right to file one motion to reconsider. 2 III. For these reasons, w e G RANT Lari’s second petition for review and REMAND to the Board for proceedings consistent with this opinion. In light of this remand, we DENY his first petition for review and thus leave unanswered the questions regarding whether Lari was properly found to have been removable. We also DENY any pending motions.

This conc lus ion is cons ist ent wi th the dec isi on of the only othe r cir cuit to add res s this 2 sp ecif ic iss ue. See Pres tol Espi nal v. Att’y Ge n. , 653 F.3d 213 (3d Cir. 2011) (in the cont ext of st atut oril y autho rized m o t i o ns for rec ons ide rat ion, holding that the “p os t- dep art ure bar re gu l a t i o n c o nfli cts wi th Congres s’ clea r inte nt for se veral reas ons ”)

. It is als o in harm ony wi th our rec ent dec isi on exam ining the rela tio nshi p betw een the dep ar tur e regula tio n and mo tio ns to reo pen brou ght unde r a text ually analogo us st atut ory pr ovis ion. See Ga rci a Cari as v. Ho lde r , 11-6 0550 (ho ldi ng that the dep art ure regula tio n coul d not be app lied to mo tio ns to reo pen brou ght unde r 8 U .S .C. § 1229a(c) (7) (A) ). 9 Case: 11-60549 Document: 00512001605 Page: 9 Date Filed: 09/27/2012Nos. 11-60549 & 11-60706

Harold R. DeMoss, Jr., Circuit Judge, dissenting: For the same reasons identified in my dissent to the majority’s opinion in Garcia-Carias v. Holder , No. 11-60550, I dissent from the majority’s decision in this case. Here, the majority h o l d s th a t the departure bar to motions for

1 reconsideration fails Chevron step one in light of 8 U.S.C. § 1229a(c)(6)(A). The majority opinion relies entirely on the plain language of the statute, which it notes is “textually analogous” to the statute at issue in G a rcia-Carias

. As discussed in my dissent in Garcia-Carias , I find the majority’s view untenable and therefore respectfully dissent.

We hear d Ga rci a- Cari as and t his cas e as com pani on cas es . In Ga rci a- Cari as , a 1 majo rit y of this pane l held that the dep art ure bar to mo tio ns to reo pen is invalid unde r Chev roninli ght of 8 U .S .C. § 1229a(c) (7) (A)

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