PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESUS CONTRERAS-BOCANEGRA, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent,

------------------------------ AMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRATION PROJECT OF THENATIONAL LAWYERS GUILD; POSTDEPORTATION HUMAN RIGHTS PROJECT; ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK,

Amici Curiae. No. 10-9500

Opinion On Rehearing En Banc

Edward L. Carter, (J. Christopher Keen, w ith him on the briefs) Keen Law Offices, Orem, Utah, for Petitioner. FILED United States Court of Appeals Tenth Circuit 

### January 30, 2012

Elisabeth A. Shumaker Clerk of Court- 2 - Greg D. Mack, Senior Litiga tion Counsel, (Alison R. Drucke r, Senior Litigation Counsel, with him on the brief) United States Depart ment of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. Trina A. Realmuto, National Immigration Pr oject, Boston, Massachusetts, (Beth Werlin and Mary Kenney, American Immigration Coun cil, Washington, D.C ., with her on the briefs) for amici curiae.

Before BRISCOE , MCKAY , KELLY , LUCERO , MURPHY , HARTZ , O’BRIEN , TYMKOVICH , GORSUCH , HOLMES , and MATHESON , Circuit Judges.

LUCERO , Circuit Judge.

We granted en banc rehearing of this ca se to determine whether the so-called postdeparture bar regulation at 8 C. F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Na tionality Act (“INA”). The amended Act grants noncitizens the right to f ile one motion to reopen their immigration proceedings. However, the Bo ard of Immigration Appeals (“Board”) contends that it lacks jurisdiction to consider motions to re open filed by individu als who have already departed the United States, despite the fact th at such a limitation appears nowhere in the statutory text. In Rosillo-Puga v. Holde r, 580 F.3d 1147, 1156 (10th Cir. 2009), a divided panel of this court upheld the post-departure bar as an authorized exerci se of the Attorney General’s rulemaking authority. The panel in the case presently before us considered itself bound by that precedent. After Rosillo -Puga was decided, the tide turned, and six- 3 - circuits have consecutively invalidated the regulation. Rather than stand alone in upholding the post-depar ture bar, we choose to overturn Rosillo-Puga and its progeny. We hold that the subject regulation impermis sibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).

I Jesus Contreras-Bocanegra, a native an d citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, Contreras received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Secu rity detained Contreras 1 upon his return from a visit to Mexico and placed him in removal procee dings on the ground that his conviction rendered him inadmissible. An Immigration Judge (“IJ”) ordered him removed from the United States, and the Board affirmed the order. This court subsequently denied Contreras’ petition for review. See Contreras-Bocanegra v. Ho lder, 376 F. App’x 817, 823 (10th Cir. 2010). A few days after the Board dismisse d his appeal, the government removed

Contreras to Mexico. Contre ras obtained new representati on and, from Mexico, filed a timely motion to reopen his removal proceedi ngs based on ineffec tive assistance of

1 We follow the petitioner’s lead in referring to himself by his first surname only.- 4 - counsel. 2 The Board denied Contreras’ motion on jurisdictional grounds, concluding pursuant to the post-departure bar that it lack ed authority to review a motion to reopen filed by a noncitizen outside of the United States. Contreras petitioned for review of the Board’s decision, ar guing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229 a(c)(7) to file a motion to reopen. As noted, the Contreras panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar. Cont reras-Bocanegra v. Holder, 629 F.3d 1170, 1172 (10th Cir. 2010) (rely ing on Rosillo-Puga, 580 F.3d at 1156). We then granted rehearing en banc to rec onsider our decision in Rosillo-Puga.

II

A

For more than half a century, the motion to reopen was a creature of administrative prudence rather than a statutor y right. Shortly afte r establishing the Board in the early 1940s, the Atto rney General authorized it to reopen concluded immigration proceedings at its discretion. 8 C.F.R. § 90.9 (19 41) (authorization to hear motions); 8 C.F.R. § 150.8 (1941) (discreti on to reopen). In 1952, the Attorney General limited that discretion by prohibiting the Board from review ing a motion to reopen “made by or in

2 Contreras alleges his removal proceeding s were marred by a series of errors by counsel. Although Contreras was eligible, his attorney di d not apply for a waiver of removal. Contreras’ attorney also neglec ted to serve proposed exhibits on opposing counsel; as a result, the IJ ex cluded this evidence. Most disturbingly, when Contreras appealed the IJ’s removal order to the Board, his attorney failed to file an appellate brief.- 5 - behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States.” 8 C.F. R § 6.2 (1952). The At torney General later imposed evidentiary requirements on motions to reopen, see 8 C.F.R § 3.8(a) (1962), and restricted the number of and time for filing su ch motions, see 8 C.F.R. § 3.2(c)(2) (1997). Although the Atto rney General has amended the mo tion to reopen regulation several times, the content of the post-departure bar re mains substantially the same today. See 8 C.F.R. § 1003.2(d). When Congress amended the INA to prov ide federal courts of appeals with jurisdiction to review final orders of deporta tion in 1961, it created a statutory counterpart to the post-departure bar that precluded judicial review of removal orders of noncitizens who were not physically present in the countr y. Act of Sept. 26, 1961, Pub. L. No. 87- 301, § 5(a), 75 Stat. 65 0, 653 (1961) (codified at 8 U.S.C. § 1105a(c) (1964)) (“An order of deportation or of ex clusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order.”). For the next three decades, departure from the United States thus ended all immigrati on proceedings, both administrative and judicial. The Illegal Immigration Reform a nd Immigrant Responsibility Act of 1996 (“IIRIRA”) enacted two key changes to this scheme. First, Congress adopted several amendments to “expedite the removal of aliens .” Kucana v. Holder, 120 S. Ct. 827, 838 (2010). IIRIRA mandated that the government deport noncitiz ens no later than 90 days after the entry of a removal order. 8 U. S.C. § 1231(a)(1); s ee also 8 U.S.C. §- 6 - 1229c(a)(2)(A), (b)(2) (limiting voluntary depa rture period to 60 or 120 days). At the same time, Congress lifted the ban on pos t-departure judicial review, allowing noncitizens who had departed or been removed from the United States to seek review of

their removal orders from abroad. See 8 U.S.C. § 1105a(c) (1996) (repealed). Second, IIRIRA codified the right to f ile one statutory motion to reopen. See 8 U.S.C. § 1229a(c)(7) (“An alie n may file one motion to re open proceedings under this section. . . .”). In the words of the Suprem e Court, this change “transformed the motion to reopen from a regulatory procedure to a stat utory form of relief.” Dada v. Mukasey, 554 U.S. 1, 14 (2008). Congr ess also codified most of the pre-IIRIRA regulatory limitations on motions to reopen. See § 1229a(c)(7)(A) (codifying the numeric limitations previously found at 8 C.F.R. § 3. 2(c)(2) (1997)); § 12 29a(c)(7)(B) (codifying substantive and evidentiary requirements previous ly found at 8 C.F.R § 3.2(c)(1) (1997)); § 1229a(c)(7)(C)(i) (codifying the filing deadli ne formerly at 8 C.F.R. § 3.2(c)(2) (1997)). Notably, however, Congr ess did not codify the regulat ory post-departure bar. Nevertheless, when the Attorney Gene ral issued regulations implementing IIRIRA, it repromulgated the post-departu re bar, placing a geographic limitation on the newly created statutory right to file a motion to reopen. See Inspection and Expedited Removal of Alie ns; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,321 (Mar. 6, 1997) (codified at 8 C.F.R. § 1003.2(d)). That regulation, currently in effect,

commands:- 7 - A motion to reopen or a motion to rec onsider 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 fro m the United States. Any departure from the United States, incl uding the deportation or removal of a person who is the subject of excl usion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. 8 C.F.R. §1003.2(d). Necessarily, we must determine the validity of this regulation’s incursion into the statutory right to file a motion to reopen.

B

We first confronted this issue in Rosillo -Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009). Rosillo-Puga filed a mo tion to reopen or reconsider his immigration case three years after his removal. The IJ denied his motion, relying on the post-departure bar, and the Board affirmed. Rosillo-Puga petitioned this court for review of the Board’s decision, arguing that the post-departure bar was an invalid restriction on his statutory right to file a motion to reopen. We disagr eed and held that the post-departure bar did “not contravene” § 1229a(c )(7). 580 F.3d at 1156. 3 We concluded that the statute was “not clear and unambiguous” as to whethe r a motion to reopen could be filed by a

3 Although we noted that Rosillo-Puga’s long-delayed motion clearly fell outside the deadline prescribed by 8 U. S.C. § 1229a(c)(7), we did not rest solely on that basis. See 580 F.3d at 1158; see also id. at 116 1 (O’Brien, J., concurring) (expressing a preference to rest on untimeliness grounds but joining the majority opinion to ensure resolution). Although Contreras’ timely motion adheres to the requirements of § 1229a(c)(7), the panel in the instant case found itself bound by Rosillo-Puga’s broader holding. Contreras-Bocanegra, 629 F.3d at 1172 (“Any fact ual distinction between our Rosillo-Puga line of cases and this case is not relevant to those prior cases’ precedential value.”).- 8 - departed noncitizen, and that the regulatio n’s limitation was reasonable. 580 F.3d at 1156-57 (analyzing the issue under two-step test dictated by Chevron U.S.A v. Natural Res. Def. Council, Inc., 467 U. S. 837 (1984)); see also Me ndiola v. Holder, 585 F.3d 1303, 1311 (10th Cir. 2009) (re affirming Rosillo-Puga). When this court issued Rosillo-Puga, only one other circuit had addressed the validity of the post-departure bar regulation. See William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (invalidating the post -departure bar regulation). 4 In Rosillo-Puga, the panel majority agreed with the vi ews of the dissenting judge in William and created a circuit split. Since that time, five additional circuits have entered into the fray, each aligning with the majority outcome in William. The Third and Ninth Circuits held, as the William court did, that the post-departure bar regul ation is an impermissi ble interpretation of § 1229a(c)(7) under Chevron. See Prestol Es pinal v. Att’y Gen., 653 F.3d 213, 217-24 (3d Cir. 2011); Martinez Coyt v. Holder, 593 F.3d 902, 905-07 (9th Cir. 2010). 5 The Sixth Circuit also determined that the post- departure bar regulation “cannot clear the first step of Chevron.” Pruidze v. Holder, 632 F. 3d 234, 240 (6th Cir. 2011) (“Congress left

4 The Fifth Circuit had addre ssed a related but distinct question: whether the postdeparture bar impermissibly conflicted with a regulation that allows the Board to consider motions to reopen outside of the confines of § 1229a(c)(7). See Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009). That court answered in the nega tive, and expressly left open the question of whether the post-departure bar c ontravenes the statute. Id. at 299-300.

5 The Ninth Circuit limited its holding to cases where the petitioner had been involuntarily removed. See Martin ez Coyt, 593 F.3d at 907 n.3.- 9 - no gap to fill when it empowered the agency to cons ider all motions to reopen filed by an alien.”). In reaching this conclusion, the Sixth Ci rcuit relied on the Supr eme Court’s recent

instruction in Union Pacific Ra ilroad v. Brotherhood of Loco motive Engineers, 130 S. Ct. 584, 596-98 (2009), that an administrative agency may not contract the jurisdiction granted to it by Congress. Pruidze, 632 F.3d at 240. Two other circuits, the Second and the Seventh, have invalidated the post-dep arture bar regulation based solely on Union Pacific. See Luna v. Holder, 637 F.3d 85, 100 (2d Cir. 2011); Marin-Rodriguez v. Holder, 612 F.3d 591, 594 (7th Cir. 2010). Because we now join the Third, Fourth , and Ninth Circuits in invalidating the post-departure bar under Chevron, we need not decide whether that regulation also

violates the rule of Union Pacific. It is worth noting, however, th at these inquiries may not be altogether separate. See Prestol Es pinal, 653 F.3d at 218 n.4 (“Although the Supreme Court did not discuss Chevron in Unio n Pacific, it is not clear to us that the Chevron question and the jurisdictional questi on are entirely distinct.”). Both analyses require us to ask whether Congress intended the Board to entertain motions to reopen filed by all noncitizens, incl uding those who have departed from the United States.

III To test whether an agency’s regulation conflicts with its governing statute, we employ the two-step analysis mandated by Chevron. At the first step, we utilize “traditional tools of statutory construction” to ascertain whether “Congress had an- 10 - intention on the precise question at issue.” Chevron, 467 U.S. at 843 n.9. If Congress’ intent is clear, “that is the end of the matter.” Id . at 842. Only if “the statute is silent or ambiguous with respect to the specific issue,” do we proceed to the next step of asking whether an agency’s in terpretation is “based on a permissi ble construction of the statute.”

Id. at 843.

A Section 1229a(c)(7)(A) provides that “[ a]n alien may file one motion to reopen proceedings.” As the Supreme Court has observed, “the statut ory text is plain insofar as it guarantees to each alien the right to file one motion to reopen.” Dada, 554 U.S. at 15 (quotation omitted) (emphasis added). The language does not distinguish between

noncitizens abroad and those in the United States. Rather, it refers unequivocally to the term “alien,” defined elsewhere by the INA as “any person not a citizen or national of the United States.” 8 U.S.C. § 11 01(a)(3). Departed noncitizens are accordingly “a subset of the group (i.e. ‘aliens’) which [t he statute] vests with the right to file these motions.” William, 499 F.3d at 332. On its face, ther efore, the statute “lea ves no room for the postdeparture bar.” Prestol Espi nal, 653 F.3d at 218. The structure of § 1229a(c)(7) reinforces this plain-text reading. Although the statute limits a noncitizen’s right to file fo r reopening in a number of specific ways, geography is not among those limitations. In fact, Congress codi fied every pre-IIRIRA regulatory limitation on filing a motion to reopen except the post-departure bar. See § 1229a(c)(7)(A) (numeric limitations); § 12 29a(c)(7)(B) (substantive and evidentiary- 11 - requirements); § 1229a(c)(7)(C)(i) (filing deadline ). “As a general principle of statutory interpretation, if a statute sp ecifies exceptions to its genera l application, other exceptions not explicitly mentioned are excluded.” Unit ed States v. Goldba um, 879 F.2d 811, 813 (10th Cir. 1989); see also United States v. Johnson, 529 U.S. 53, 58 (2000) (“When Congress provides exceptions in a statute, it doe s not follow that courts have authority to create others. The proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.”). This principle is particularly pertinent in the IIRIRA context, given that Congress was undoubtedly aware of the pre-existing regulatory post-depa rture bar. By deliberately omitting that geographic exception to the rule that a noncitizen “may file one motion” to reopen, while codifying other exceptions, Congress signaled its intent that a noncitizen’s physical

location would not affect the statutory right. Congress’ intent is further illuminated when we consider the overall amendment scheme. See Crandon v. United States, 494 U.S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whol e and to its object and policy.”). As discussed above, the 1996 amendments “‘inverted’ certain prov isions of the INA, encouraging prompt voluntary departure and speedy government acti on, while eliminating statutory barriers to pursuing relief from abroad.” Martinez-Coyt, 593 F.3d at 906 (quoting Nken v. Holder, 129 S. Ct. 1749, 1755 (2009)). In particular, Congress scuttled the pre-IIRIRA norm that departure ended all legal proceed ings by repealing th e departure bar to judicial review.- 12 - See Marin-Rodriguez, 612 F.3d at 594. Co ngress also adopted a 90 -day period for the government to effectuate removal, 8 U. S.C. § 1231(a)(1)(A), and gave noncitizens 90 days to file a motion to reopen their proceedin gs after a removal order. § 1229a(c)(7)(C). If we were to uphold the re gulation, the Department of Homeland Security would be permitted—indeed, required—to unilaterall y cut short the congressionally mandated filing period in almost every case. See Martinez-Coyt, 593 F.3d at 907 (“The only manner in which we can harmonize the[se] provision s . . . is to hold . . . that the physical removal of a petitioner by the United Stat es does not preclude the petitioner from pursuing a motion to reopen.”); see also Lu na, 637 F.3d at 101 (concluding that the 90- day removal period is not in tension with the 90-day deadline for motions to reopen so long as noncitizens may pursue reopening from abroad). Thus, the overall thrust of IIRIRA bolst ers the conclusion already compelled by text and statutory structure: Congress intended to provide each noncitiz en the right to file one motion to reopen, regardless of whether he remains in or has departed from the United States. Because the post-departure ba r regulation conflicts with Congress’ clear intent, it cannot survive step one of the Chevron analysis.

B The government neverthele ss contends that the regulation should clear Chevron’s first hurdle absent “express language repea ling or displacing the Attorney General’s rule.” We disagree. Chevron does not require Congress to explicitly delineate everything an agency cannot do before we may conclude that Congress has directly- 13 - spoken to the issue. Such a rule would “create an ‘a mbiguity’ in almost all statutes, necessitating deference to nearly all agency dete rminations.” Prestol Espinal, 653 F.3d at 220. To the contrary, Chevron empowers agen cies to “fill statutory gaps, not to create them, and in this instance Congre ss left no gap to fill.” Pruid ze, 632 F.3d at 240. Rather, Congress provided every “alien” the right to file one motion to reopen. In Rosillo-Puga, we none theless determined that th e post-departure regulation survived the first step of Chevron analysis because we expected Congress to “speak with greater clarity” when “overruling [a] long-held agency interpretation[] like the departure bar.” 580 F.3d at 1157 (q uoting William, 499 F.3d at 34 1 (Williams, C.J., dissenting)). The government presses the same argument in this appeal. Specifically, it points to Commodity Futures Trading Commission v. Schor for the proposition that “when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, co ngressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” 478 U.S. 833, 84 6 (1986) (quotation omitted). To understand why Schor’s clear-statement rule does no t apply to this case, we return to the history of the post-departur e regulation. When the Attorney General promulgated the bar in 1941, “C ongress had not spoken about motions to reopen and thus it had said nothing that could give rise to an agency interpretation.” Pruidze, 632 F.3d at 240. Accordingly, when Congress enacted § 1229a(c)(7) as part of IIRIRA, it did not

“revisit” or revise an existi ng statutory provision. Rather, it created—for the first time—- 14 - a statutory right to file a motion to reopen subject to certain limitations. To require an express repeal of a discretionary regulation in this context would upend the fundamental principle that regulations should interpret st atutes and not the other way around. When Congress legislates on a clean slate, it need not explicitly abrogate every related policy put in place by an agency. Inst ead, when faced with such a legislative overhaul, agencies should recalibrate their regulations to ensure they maintain a statutory basis. This the Attorney General has failed to do. The government further asserts that the motion to reopen statute as written—that is, without the geographic lim itation imposed by the post-dep arture bar—conflicts with another provision of the I NA, 8 U.S.C § 1182(a)(9)(A)(ii ). Section 1182 prohibits removed noncitizens from seeking admission into the United States within five, ten, or twenty years of the date of their depart ure or removal. Id . If §§ 1229a(c) and 1182(a)(9)(A) needed reconciling, the resultant ambiguity might require us to proceed to the second step of Chevron. But there is no tension betwee n these provisions. When the Board grants a motion to reopen, this acti on vacates the underlying removal order and restores the noncitizen to her prior status. Se e Nken, 129 S. Ct. at 17 59 n.1. As a result, the noncitizen is no longer subject to the r eentry bar under § 1182(a)(9)(A). Further, our decision does not compel the Board or any ot her entity to grant motions to reopen filed by previously removed individuals; it merely requires that the Board consider them if they comply w ith the other requiremen ts of § 1229a(c)(7). The government additionally advances the view that the post-departure bar- 15 - regulation does not contravene the right c odified in § 1229a(c)(7) because another provision of the Act allows departed noncitiz ens to reapply for ad mission into the United States. § 1182(a)(9)(A)(iii). Once readmitt ed, presumably, the noncitizen could file a motion to reopen removal proceedings. We do not see how this supposed “mechanism for relief” can save the post-departure bar from invalidation. As an initial matter, we are skeptical that a removed noncitizen could reappl y for admission, be readmitted, and file a motion to reopen all before the 90-day deadlin e. More significantly, whether to allow a removed noncitizen to reapply for admissi on is entirely within the option of the Department of Homeland Secur ity, and we will not condition an absolute statutory right on the vagaries of administrative discretion. Section 1182(a)(9)(A)(iii ), therefore, cannot adequately safeguard a noncitizen’s en titlement to file a motion to reopen. Finally, the government argues that the post-departure bar shoul d be upheld as a categorical exercise of discretion, even thou gh the Board has consis tently characterized the regulation as jurisdictional, as it did in this case. Se e, e.g., Matter of ArmendarizMendez, 24 I. & N. Dec. 646, 660 (B.I.A. 2 008). While agencies have the power under certain circumstances to promulgate categor ical rules that supplant individualized adjudication, see Lopez v. Davis, 531 U.S. 230, 241-42 (2001), we cannot uphold the Board’s action on grounds not provided by th e agency itself. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see also Pruidze, 632 F.3d at 240. More importantly, “an agency’s authority to promulgate categorical rules is limited by clear congressional intent to the contrary. In other words, Lopez app lies only when Congress has not spoken to the- 16 - precise issue and the statute contains a gap. ” Wedelstedt v. Wiley, 477 F.3d 1160, 1168 (10th Cir. 2007). Casting the post-de parture bar as categorical exercise of discretion, therefore, does not cure the fact that it contravenes clear congressional intent. In sum, none of the government’s argumen ts persuade us that we need to look beyond the first step of Chevron to resolv e this case. Section 1229a(c)(7) plainly guarantees each noncitizen the right to file a motion to reopen, regardless of whether they have departed the United States. Because the post-departure bar regulation contravenes this right, it is not a valid exercise of the Attorney General’s rule making authority. To the extent that Rosillo-Puga an d Mendiola hold otherwise, t hose decisions are overruled.

IV

We GRANT Contreras’ petition for review, VACATE the panel decision and the Board’s order, and REMAND for further proceedings consistent with this opinion.