FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASBIR SINGH TOOR,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 10-73212

Agency No.

A056-361-534

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 4, 2015—Pasadena, California

Filed June 17, 2015

Before: Stephen Reinhardt, N. Randy Smith,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Reinhardt
2 TOOR V. LYNCH

SUMMARY*

Immigration

The panel granted Jasbir Singh Toor’s petition for review

of the Board of Immigration Appeals’ decision dismissing his

appeal of an Immigration Judge’s order denying his motion

to reopen or reconsider on the ground that the IJ and BIA

lacked jurisdiction under the regulatory departure bars

because he voluntarily departed the United States during

removal proceedings.

The panel held that two pre-IIRIRA regulations

concerning motions to reopen or reconsider made before an

IJ (8 C.F.R. § 1003.23(b)(1)) and before the BIA (8 C.F.R.

§ 1003.2(d)), referred to as the departure bars, are invalid

irrespective of the manner in which the noncitizen departed. 

The panel analyzed the unpublished decision in Toor’s case

under Chevron because it was directly controlled by Matter

of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008),

which held that the departure bars apply after IIRIRA even

though the regulations predated IIRIRA. The panel held that

the text of IIRIRA made clear that the statutory right to file a

motion to reopen or reconsider is not limited by whether the

individual had departed, and that the bar is invalid

irrespective of how the noncitizen departed the United States.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
TOOR V. LYNCH 3

COUNSEL

Marie L. Kayal (argued), The Law Office of Marie L. Kayal,

Burlingame, California, for Petitioner.

Ann C. Varnon (argued), Trial Attorney; Tony West,

Assistant Attorney General; Cindy S. Ferrier, Assistant

Director; and Sunah Lee, Trial Attorney, Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C., for Respondent.

OPINION

REINHARDT, Circuit Judge:

In 1996, Congress passed the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA), which inter alia

provides all noncitizens a statutory guarantee that they may

file “one motion to reconsider a decision that the alien is

removable from the United States,” 8 U.S.C.

§ 1229a(c)(6)(A), and “one motion to reopen proceedings,”

8 U.S.C. § 1229a(c)(7)(A). See Dada v. Mukasey, 554 U.S.

1, 14 (2008) (“[T]he statutory text is plain insofar as it

guarantees to each alien the right to file ‘one motion to

reopen proceedings under this section.’” (citation omitted)). 

That guarantee was limited in some ways — with number,

content, and time restrictions — but not in any respect by

whether the noncitizen had departed the United States prior

to filing such motions.

Two regulations that predate the passage of IIRIRA —

hereinafter referred to as the regulatory departure bar —

provide that a noncitizen who is the subject of immigration
4 TOOR V. LYNCH

proceedings may not make a motion to reopen or reconsider

“subsequent to his or her departure from the United States.” 

See 8 C.F.R. § 1003.23(b)(1) (concerning motions to reopen

or reconsider made before an Immigration Judge); 8 C.F.R.

§ 1003.2(d) (concerningmotion to reopen or reconsider made

before the Board of Immigration Appeals (BIA)). In Matter

of Armendarez-Mendez, 24 I & N Dec. 646, 660 (BIA 2008),

the BIA held that the regulatory departure bar survives the

passage of IIRIRA. Here, we consider whether the BIA was

correct, or whether the regulatory departure bar conflicts with

IIRIRA’s statutory guarantee that noncitizens may file one

motion to reopen and one motion to reconsider irrespective of

whether they previously departed the United States.

This is not the first time we have examined the regulatory

departure bar. As a matter of regulatory interpretation, we

have held that the departure bar does not apply to noncitizens

who departed the United States either before removal

proceedings have commenced, see Singh v. Gonzales,

412 F.3d 1117 (9th Cir. 2005), or after removal proceedings

were completed, see Lin v. Gonzales, 473 F.3d 979 (9th Cir.

2007). In considering the relationship between the regulatory

departure bar and IIRIRA, we have held that the regulatory

departure bar is invalid as applied to a noncitizen who is

involuntarily removed from the United States. See ReyesTorres v. Holder, 645 F.3d 1073 (9th Cir. 2011); Coyt v.

Holder, 593 F.3d 902 (9th Cir. 2010).

We have not, however, addressed whether the regulatory

departure bar may be validly applied to a noncitizen who

voluntarily departs the United States during removal

proceedings. Although we have never upheld the invocation

of the regulatory departure bar in a precedential decision, we

have reserved that question. See Coyt, 593 F.3d at 907 n.3
TOOR V. LYNCH 5

(“Other circuits have considered whether 8 C.F.R.

§ 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) . . . can be applied

to any removal — voluntary or involuntary — a question we

need not, and do not, reach in this case.”); Cardoso-Tlaseca

v. Gonzales, 460 F.3d 1102, 1106 n.2 (9th Cir. 2006). Now,

we address the question, and consistent with every other

circuit that has addressed it, we hold the regulatory departure

bar invalid irrespective of how the noncitizen departed the

United States.1

1 The other circuit courts that have addressed this issue have approached

it in two ways. The First, Third, Fourth, Fifth, Tenth, and Eleventh

Circuits have held that the regulatory departure bar clearly conflicts with

IIRIRA, and therefore fails at step one of Chevron. See Santana v.

Holder, 731 F.3d 50 (1st Cir. 2013); Prestol Espinal v. Atty. Gen.,

653 F.3d 213 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329 (4th Cir.

2007); Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012);

Contreras-Bocanegra v. Holder, 678 F.3d 811 (10thCir. 2012) (en banc);

Lin v. U.S. Atty. Gen., 681 F.3d 1236 (11thCir. 2012). The Second, Sixth,

and SeventhCircuits have held that the BIA’s application ofthe regulatory

departure bar as a jurisdictional rule is an impermissible contraction of its

own jurisdiction. See Luna v. Holder, 637 F.3d 85 (2dCir. 2011); Pruidze

v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder,

612 F.3d 591 (7th Cir. 2010). Although the two rationales “may not be

altogether separate,” Contreras-Bocanegra, 678 F.3d at 816, we need not

and do not opine on the rationale adopted by the Second, Sixth, and

Seventh Circuits because we resolve the case as a matter of statutory

interpretation. (The Eighth Circuit has not yet decided the validity of the

regulatory departure bar. See Ortega-Marroquin v. Holder, 640 F.3d 814,

820 (8th Cir. 2011).)

Some circuit courts have upheld the validity of the regulatory

departure bar when applied to motions to reopen or to reconsider filed

untimely, and thus out of compliance with IIRIRA. See Zhang v. Holder,

617 F.3d 650, 660–65 (2d Cir. 2010); Ovalles v. Holder, 577 F.3d 288,

295–96 (5th Cir. 2009); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676

(5th Cir. 2003). Because Petitioner’s motion was timely and, it appears,
6 TOOR V. LYNCH

I.

Jasbir Singh Toor (Petitioner), a native and citizen of

India, was admitted to the United States as a lawful

permanent resident on a conditional basis in 2003. In 2005,

the former Immigration and Naturalization Service (INS)

approved his petition to remove the conditions on his

residence. On August 23, 2007, the Department of Homeland

Security (DHS) initiated removal proceedings against

Petitioner, charging that he was removable for fraudulently or

willfully misrepresenting a material fact on a visa petition in

violation of INA § 212(a)(6)(C)(I), and for lacking a valid

entry document at the time of his application for admission in

violation of INA § 212(a)(7)(A)(i)(I). On November 3, 2008,

an Immigration Judge (IJ) sustained both charges of

removability. Two days later, the IJ granted Petitioner until

December 19, 2008, to apply for all forms of relief from

removal. Petitioner did not do so, and on February 3, 2009,

the IJ considered all requests for relief waived and

abandoned, and ordered Petitioner removed to India.

Petitioner filed a timely motion to reopen or reconsider

his removal proceedings, in which he argued that the IJ could

not validly order him removed to India because Petitioner had

already “departed the United States and arrived in India on

April 3, 2008” before the IJ ordered him removed. The IJ

denied Petitioner’s motion, holding that, pursuant to 8 C.F.R.

§ 1003.23(b)(1) — the regulatory departure bar applicable to

proceedings before an Immigration Judge — the IJ had no

jurisdiction to entertain Petitioner’s motion to reopen or

reconsider because Petitioner had “voluntarily left the United

otherwise in compliance with IIRIRA, we need not and do not address that

issue in this case. See note 7, infra.
TOOR V. LYNCH 7

States while his removal proceedings were pending.”2 The

BIA dismissed Petitioner’s appeal. Like the IJ, the BIA

explained that it had no jurisdiction to consider Petitioner’s

motion because the regulatory departure bar — located for

the BIA at 8 C.F.R. § 1003.2(d) — precludes a noncitizen

from moving the BIA to reopen or reconsider his removal

proceedings subsequent to his departure from the United

States, and Petitioner had “self-deported from the United

States during the pendency of administrative proceedings.” 

The instant petition for review followed.

II.

We have jurisdiction to review questions of law presented

in a petition for review. 8 U.S.C. § 1252(a)(2)(D). “We

review the BIA’s denial of motions to reopen or to reconsider

for abuse of discretion, ‘although [de novo] review applies to

the BIA’s determination of purely legal questions.’” CanoMerida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002) (quoting

Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir. 2002)). The

subject of this appeal — the validity of the regulatory

departure bar — presents a purely legal question of statutory

interpretation to which we apply de novo review, “giving

appropriate deference to the agency if warranted.” ArteagaDe Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir. 2012).

2 The IJ also held that even if it had jurisdiction to consider Petitioner’s

motion, the motion would fail on the merits. The BIA, however, did not

reach the merits of Petitioner’s motion, and it is not, therefore, a subject

of this appeal. Indeed, the government concedes that we cannot affirm the

BIA on the merits alone, but rather must “remand the case to the Board for

further proceedings on the merits of the motion” if we reverse the BIA’s

jurisdictional holding.
8 TOOR V. LYNCH

III.

Separate sections in the Federal Register provide

essentially an identical limitation on motions to reopen or to

reconsider filed before an IJ, on the one hand, and the BIA,

on the other. The regulation pertaining to motions to reopen

or to reconsider made before an IJ states, in relevant part:

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. § 1003.23(b)(1). The regulation pertaining to

motions to reopen or to reconsider made before the BIA

states:

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.

8 C.F.R. § 1003.2(d). These regulations compose the

regulatory departure bar. In this case, the IJ and the BIA

refused to exercise jurisdiction over Petitioner’s motion to

reopen and reconsider because he had voluntarily departed

the United States during his immigration proceedings, and

therefore was barred by the regulatory departure bar from

making a motion to reopen or to reconsider.

Petitioner argues that the regulatory departure bar

conflicts with the statutory right to file a motion to reopen
TOOR V. LYNCH 9

and a motion to reconsider provided in the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA). In Matter of Armendarez-Mendez, 24 I & N

Dec. 646, 660 (BIA 2008), the BIA held that the regulatory

departure bar, which predated the passage of IIRIRA,

“remains in full effect” after IIRIRA. The BIA explained that

it saw “nothing in the language or legislative history of . . .

IIRIRA that would lead [it] to conclude that [IIRIRA] was

intended to override the existing regulatoryscheme governing

the filing and adjudication of motions in removal

proceedings.” Id. at 657.

“We apply Chevron deference to the Board’s

interpretations of ambiguous immigration statutes, if the

Board’s decision is a published decision” or an unpublished

decision “directly controlled by [a] published decision.” 

Guevara v. Holder, 649 F.3d 1086, 1089–90 (9th Cir. 2011)

(quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010))

(internal quotation marks omitted). In this case, the BIA

issued an unpublished decision, but it was directly controlled

by Matter of Armendarez-Mendez, a published decision. 

Therefore, we apply Chevron deference. Under Chevron, we

first ask “whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear, that is the

end of the matter . . . .” Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984). If, however,

“the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s

answer is based on a permissible construction of the statute.” 

Id. at 843.

Here, we hold that Congress has directly spoken to the

precise question at issue; the text of IIRIRA makes clear that

the statutory right to file a motion to reopen and a motion to
10 TOOR V. LYNCH

reconsider is not limited by whether the individual has

departed the United States.3 The regulatory departure bar,

therefore, fails at the first step of Chevron. In so holding, we

join every circuit that has resolved this issue under Chevron. 

See Santana v. Holder, 731 F.3d 50, 61 (1st Cir. 2013);

Prestol Espinal v. Atty. Gen., 653 F.3d 213, 218 (3d Cir.

2011); William v. Gonzales, 499 F.3d 329, 334 (4th Cir.

2007); Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir.

2012); Contreras-Bocanegra v. Holder, 678 F.3d 811, 819

(10th Cir. 2012) (en banc); Lin v. U.S. Atty. Gen., 681 F.3d

1236, 1241 (11th Cir. 2012). We recognize that the Second,

Sixth, and Seventh Circuits have held that the regulatory

departure bar is an impermissible contraction of the BIA’s

jurisdiction. See Luna v. Holder, 637 F.3d 85 (2d Cir. 2011);

Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011);

Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010). 

Without necessarily disagreeing with those courts, we choose

3 Our decision is in no way inconsistent with Singh v. Gonzales,

412 F.3d 1117 (9th Cir. 2005), or Lin v. Gonzales, 473 F.3d 979 (9th Cir.

2007). In those cases, we simply interpreted the text of the regulatory

departure bar and held that as written the bar applies only to noncitizens

who depart the United States during removal proceedings — not before

or after. In both cases, we held that the regulatory departure bar could not

be applied to the petitioners before us because they did not depart during

removal proceedings. In neither case did we uphold the application of the

regulatory departure bar. We were not asked to resolve nor did we resolve

the precise issue before us now — whether the regulatory departure bar

was overruled by IIRIRA. Singh and Lin, therefore, were cases

exclusively concerned with regulatory interpretation. We acknowledged

that fact in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) — the first case

in which we addressed the relationship between IIRIRA and the regulatory

departure bar — when we reserved the very question that we answer in

this case: whether the regulatory departure bar “can be applied to any

removal — voluntary or involuntary.” Coyt, 593 F.3d at 907 n.3. We

could not have done so if that question had already been resolved by Singh

and Lin.
TOOR V. LYNCH 11

to resolve this case under Chevron because that is the

approach taken by six of the nine circuits to have considered

the question, and the one that our cases in this area of the law

have taken. See Reyes-Torres v. Holder, 645 F.3d 1073, 1076

(9th Cir. 2011); Coyt v. Holder, 593 F.3d 902, 905 (9th Cir.

2010).

Our inquiry “begins with the statutory text, and ends there

as well,” because the text is “clear and unambiguous.” 

Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th

Cir. 2009) (quoting McDonald v. Sun Oil Co., 538 F.3d 774,

780 (9th Cir. 2008) (internal quotation marks omitted)). 

IIRIRA states inter alia that an “alien may file one motion to

reconsider a decision that the alien is removable from the

United States,” 8 U.S.C. § 1229a(c)(6)(A), and that an “alien

may file one motion to reopen proceedings under this

section,” 8 U.S.C. § 1229a(c)(7)(A). The statute does not

limit these rights to “aliens who have not departed the United

States during their immigration proceedings,” as the

regulatory departure bar would require. The statutory rights

are, instead, guaranteed to each “alien.” The regulatory

departure bar conflicts with this clear statutory command.

See Dada, 554 U.S. at 15 (“The statutory text is plain insofar

as it guarantees to each alien the right to file ‘one motion to

reopen proceedings under this section.’” (citation omitted));

Santana, 731 F.3d at 56 (“[T]he provision unambiguously

confers upon ‘an alien’ the authority and the right to file a

motion to reopen, in language that admits of no exceptions.”);

William, 499 F.3d at 332 (“Because the statute sweeps

broadly in this reference to ‘an alien,’ it need be no more

specific to encompass within its terms those aliens who are

abroad.”); Garcia-Carias, 697 F.3d at 263 (“By its clear

terms, the statute does not distinguish between those aliens

who are abroad and those who remain in the United States —
12 TOOR V. LYNCH

the unmodified ‘alien’ captures both.”); ContrerasBocanegra, 678 F.3d at 816 (“The language does not

distinguish between noncitizens abroad and those in the

United States.”).

Placing these statutory rights in their proper context

confirms that IIRIRA invalidated the regulatory departure

bar. IIRIRA limits the right to file a motion to reopen and a

motion to reconsider by number, time, and content, but not in

any respect by whether the individual has departed the United

States. Specifically, the statute provides that a noncitizen

may file “one” motion to reconsider, 8 U.S.C.

§ 1229a(c)(6)(A), it “must be filed within 30 days of the date

of entry of a final administrative order of removal,” id.

§ 1229a(c)(6)(B), and it “shall specify the errors of law or

fact in the previous order and shall be supported by pertinent

authority,” id. § 1229a(c)(6)(C). Similarly, unless the

statute’s exception for victims of domestic violence applies,

a noncitizen is limited to “one” motion to reopen, id.

§ 1229a(c)(7)(A), which must “be filed within 90 days of the

date of entry of a final administrative order,” id.

§ 1229a(c)(7)(C)(i), and “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,” id. § 1229a(c)(7)(B). In contrast, the statute does

not contain any requirement that the noncitizen filing a

motion to reconsider or a motion to reopen remain physically

present in the United States during the immigration

proceedings. Indeed, it contains no departure-related

restriction of any kind.

“When Congress provides exceptions in a statute, . . .

[t]he proper inference . . . is that Congress considered the

issue of exceptions and, in the end, limited the statute to the
TOOR V. LYNCH 13

ones set forth.” United States v. Johnson, 529 U.S. 53, 58

(2000). As the Tenth Circuit explained, “[t]his principle is

particularly pertinent in the IIRIRA context, given that

Congress was undoubtedly aware of the pre-existing

regulatory post-departure bar.” Contreras-Bocanegra,

678 F.3d at 817. Applied here, therefore, the “proper

inference” is thatCongress considered whether to bar motions

to reopen or to reconsider from noncitizens who had departed

the United States, and chose not to do so. The statute

contains several exceptions to the general grant of a right to

file a motion to reopen and a motion to reconsider, but does

not contain any related to whether the noncitizen previously

departed the United States. The regulatory departure bar

unambiguously conflicts with this decision by Congress. See

Garcias-Carias, 697 F.3d at 264 (“The fact that Congress

created limitations on the exercise of the motion to reopen,

yet did not place a geographic restriction, supports a reading

. . . that does not deny departed aliens their right to file a

motion to reopen.”); Lin, 681 F.3d at 1240 (“Congress clearly

considered and included some restrictions on the ability to

file a motion to reopen but chose not to make a limitation

based on the alien’s physical location.”).

Moreover, subsequent enactments by Congress further

demonstrate that it knew how to include a physical-presence

requirement on motions to reopen, yet did not do so for all

noncitizens who make such a motion — contrary to the

regulatory departure bar, which applies to all noncitizens. 

See Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (“[T]he meaning of one

statute may be affected by other Acts, particularly where

Congress has spoken subsequently and more specifically to
14 TOOR V. LYNCH

the topic at hand.”). With changes enacted in 20004and

2006,5 Congress provided that the number and time

limitations on filing a motion to reopen do not apply to

battered spouses, children, and parents, 8 U.S.C.

§ 1229a(c)(7)(C)(iv), as long as such individuals are

“physically present in the United States at the time of filing

the motion,” id. § 1229a(c)(7)(C)(iv)(IV). No other physicalpresence requirement exists in the statute governing motions

to reopen and motions to reconsider.

The addition of a physical-presence requirement confirms

that the omission of a departure bar from the statute

governing motions to reopen and motions to reconsider was

deliberate. “Where Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)

(citation omitted) (internal quotation marks omitted). Here,

Congress included a physical-presence requirement in the

section of the statute concerning tardy or successive motions

to reopen filed by battered spouses, children, and parents, but

did not include any presence-related requirements elsewhere

in the statute. Therefore, we must presume that Congress

intentionally excluded a presence-related requirement from

its general grant of a statutory right to file a motion to reopen

and a motion to reconsider. See Santana, 731 F.3d at 56

4

See Victims of Trafficking and Violence Protection Act of 2000, Pub.

L. No. 106-386, § 1506(c), 114 Stat. 1464, 1528 (2000).

5

See Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, § 825(a)(2)(F), 119

Stat. 2960, 3063–64 (2006).
TOOR V. LYNCH 15

(“This provision shows that Congress knew how to impose a

geographic restriction when it wanted to, and further suggests

that the statute’s general provisions do not contain such a

limitation.”); Lin, 681 F.3d at 1240 (explaining that the

physical-presence requirement included in the statute leads to

an inference that Congress “intentionally chose not to require

such presence for a motion to reopen, except in the specified

circumstances.”).

Moreover, Congress must have understood that IIRIRA

invalidated the regulatory departure bar. As the Third Circuit

explained, there would have been “no need” for Congress in

its enactments subsequent to IIRIRA to provide a physicalpresence requirement for victims of domestic violence filing

motions to reopen if IIRIRA had left the regulatory departure

bar undisturbed. Prestol Espinal, 633 F.3d at 223. In fact,

the argument to the contrary — that the regulatory departure

bar survived IIRIRA, yet Congress nevertheless provided the

physical-presence requirement for victims of domestic

violence filing late or successive motions to reopen — would

require us to read the latter provision as mere surplusage, in

direct violation of the “fundamental canon of statutory

construction that a statute should not be construed so as to

render any of its provisions mere surplusage.” United States

v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003); see also

William, 499 F.3d at 333 (“We can go beyond simply

drawing an inference regarding Congress’ intent in this case,

for a finding that physical presence in the United States is

required before any motion to reopen may be filed would

render the physical presence requirement expressly written

into subsection (c)(7)(C)(iv)(IV) mere surplusage.”);

Garcias-Carias, 697 F.3d at 264 (“[A]n interpretation of the

statute that would impose a general physical presence

requirement would effectively read the aforementioned
16 TOOR V. LYNCH

provision regarding domestic abuse victims out of the

statute.”).

In sum, our conventional tools of statutory interpretation

yield one conclusion, and one conclusion alone — the

regulatory departure bar has been invalidated by Congress. 

However, notwithstanding the complete lack of statutory

authority for the regulatory departure bar and the compelling

statutory evidence that Congress legislated to the contrary,

the government argues that the regulatory departure bar may,

at least in the case of a voluntary departure, nevertheless

apply for two reasons, both of which we reject.

First, the government argues that because the regulatory

departure bar predated IIRIRA and IIRIRA did not explicitly

overturn it, Congress chose not to disturb the pre-existing

regulatory departure bar. The basic story, in the

government’s view, is the following: In 1990, Congress

directed the Attorney General to “issue regulations with

respect to . . . the period of time in which motions to reopen

and to reconsider may be offered in deportation proceedings,

which regulations include a limitation on the number of such

motions that may be filed and a maximum time period for the

filing of such motions.” Immigration Act of 1990, Pub. L.

No. 101-649, § 545(d), 104 Stat. 4978, 5066. In April 1996,

the Attorney General promulgated time and number

limitations as instructed, while also reaffirming the regulatory

departure bar. See Motions and Appeals in Immigration

Proceedings, 61 Fed. Reg. 18,900, 18,905 (Apr. 29, 1996). 

Later that year, Congress enacted IIRIRA, which codified the

time and number limitations that the Attorney General had

promulgated, and —according to the government — “did not

displace or otherwise disturb the post-departure bar.” As a
TOOR V. LYNCH 17

result, the government claims, the regulatory departure bar

remains valid after IIRIRA.

The government’s argument, however, merely begs the

question — did IIRIRA, in fact, not “displace or otherwise

disturb” the regulatory departure bar? Based on the

conventional tools of statutory interpretation as applied

above, the answer is “no.” Our precedent confirms this

answer. In both Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010),

and Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011),

we held that IIRIRA invalidated the regulatory departure bar

as applied to involuntary departures. Therefore, we have

already held that IIRIRA “displace[d] or otherwise

disturb[ed]” the regulatory departure bar. In short, we have

already rejected the premise of the government’s argument.6

The government’s contention is not only unpersuasive,

but would create troubling precedent. In short,

the government would place upon Congress,

when enacting a new statute against a

background regulatory scheme, the burden of

addressing each and every regulation that

existed before and expressly stating whether

it survives the change in the statute. That

argument is untenable. As the Tenth Circuit

6 Petitioner argues in part that our decisions in Coyt and Reyes-Torres

themselves resolve his case. We do not agree. Those decisions held that

IIRIRA was incompatible with the regulatory departure bar as applied to

involuntary removals. In this case, by contrast, Petitioner departed the

United States voluntarily. Indeed, as we have said, Coyt reserved the very

question at issue in this case: whether the regulatory departure bar “can be

applied to any removal — voluntary or involuntary.” Coyt, 593 F.3d at

907 n.3.
18 TOOR V. LYNCH

explained, “[t]o require an express repeal of a

discretionary regulation in this context would

upend the fundamental principle that

regulations should interpret statutes and not

the other way around.”

Santana, 731 F.3d at 58 (quoting Contreras-Bocanegra,

678 F.3d at 818) (footnote omitted).

Moreover, far from demonstrating that Congress chose to

leave intact the regulatory departure bar, the story presented

by the government more strongly suggests that Congress

deliberately invalidated it. The government acknowledges

that IIRIRA codified some regulatory limitations in existence

at the time, yet did not codify the regulatory departure bar. 

The correct inference from this fact is that Congress made a

“considered judgment” as to which regulatory limitations

would be integrated into the statutory scheme governing

motions to reopen and motions to reconsider, and the

departure bar was not one of them. See Prestol Espinal,

653 F.3d at 222 (“Congress did not codify the post-departure

bar notwithstanding its long history. Neither we nor the

agency should be permitted to override Congress’ considered

judgment.”).

Second, the government argues that “[t]he decision to bar

aliens who have left the United States from having their cases

reopened or reconsidered represented a categorical exercise

of discretion by the Attorney General.” To support this

argument, the government cites Lopez v. Davis, 531 U.S. 230,

244 (2001), which upheld the authority of an agency to make

categorical rules in place of case-by-case determinations.
TOOR V. LYNCH 19

This argument is unpersuasive as well. We have held that

“Lopez applies only when Congress has not spoken to the

precise issue and the statute contains a gap.” Rodriguez v.

Smith, 541 F.3d 1180, 1188 (9th Cir. 2008) (quoting

Wedelstedt v. Wiley, 477 F.3d 1160, 1168 (10th Cir. 2007)

(internal quotation marks omitted)). As explained above,

Congress has spoken to the precise issue here by providing a

statutory guarantee that all noncitizens may file a motion to

reopen and a motion to reconsider and by not limiting that

right to noncitizens who have remained in the United States. 

Moreover, even if Lopez applied, this argument would fail

because we may affirm the BIA based only on “the

explanations offered by the agency,” Arrington v. Daniels,

516 F.3d 1106, 1113 (9th Cir. 2008); see also SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943), and the BIA has “consistently

characterized the [departure bar] regulation as jurisdictional”

rather than a “categorical exercise of discretion,”

Contreras-Bocanegra, 678 F.3d at 819.7

IV.

That Petitioner departed the United States voluntarily,

rather than involuntarily, is immaterial. The regulatory

departure bar is invalid irrespective of the manner in which

the movant departed the United States, as it conflicts with

clear and unambiguous statutory text. The BIA erred by

refusing to exercise jurisdiction over Petitioner’s motion to

reopen and to reconsider on the basis of the regulatory

7 Because Petitioner’s motion to reopen or to reconsider was timely and,

it appears, otherwise compliant with IIRIRA, we do not address whether

the BIA may validly apply the regulatory departure bar to a motion that

does not meet the number, time, and content requirements specified in

IIRIRA. See note 1, supra.
20 TOOR V. LYNCH

departure bars. We therefore GRANT the petition for review

and REMAND for further proceedings consistent with this

opinion.