FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS May 14, 2020 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court JUVENAL REYES-VARGAS, a/k/a Juvenal Reyes, a/k/a Juvenal Vargas- Reyes, Petitioner, v. No. 17-9549 WILLIAM P. BARR, United States Attorney General, Respondent. ------------------------------ NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Amicus Curiae. _________________________________ Appeal from the Board of Immigration Appeals (Petition for Review) _________________________________ Aaron Tarin (Lory D. Rosenberg with him on the briefs), of Immigrant Defenders Law Group, PLLC, West Valley City, Utah, for Petitioner. Jonathan K. Ross, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, and Chad A. Readler, Acting Assistant Attorney General, Civil Division; Margaret Kuehne Taylor, Senior Litigation Counsel, Office of Immigration Litigation, with him on the brief), United States Department of Justice, Washington D.C., for Respondent. Elizabeth G. Simpson, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for amicus curiae on behalf of Petitioner. _________________________________ Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. _________________________________ PHILLIPS, Circuit Judge. _________________________________ In this appeal, we review a Board of Immigration Appeals (the “Board” or “BIA”) ruling that an Immigration Judge (IJ) had no jurisdiction under 8 C.F.R. § 1003.23(b)(1) to move sua sponte to reopen Juvenal Reyes-Vargas’s removal proceedings. In particular, the Board ruled that this regulation removes the IJ’s jurisdiction to move sua sponte to reopen an alien’s removal proceedings after the alien has departed this country (the regulation’s “post-departure bar”). We review the Board’s interpretation of its regulation using the framework announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which clarifies when and how courts defer to an agency interpreting its own regulations. Under that case, we can defer to the Board’s interpretation only if we conclude, after rigorously applying all our interpretative tools, that the regulation presents a genuine ambiguity and that the agency’s reading is reasonable and entitled to controlling weight. Applying this framework here, we conclude that the regulation is not genuinely ambiguous on the issue in dispute—that is, whether the post-departure bar eliminates the IJ’s jurisdiction to move sua sponte to reopen removal proceedings. In fact, the regulation’s plain language conclusively answers the question. The post- 2 departure bar applies to a party’s “motion to reopen,” not to the IJ’s own sua sponte authority to reopen removal proceedings. So we do not defer. Accordingly, we grant Reyes-Vargas’s petition for review, vacate the Board’s decision, and remand for further proceedings. On remand, the Board must consider Reyes-Vargas’s appeal from the IJ’s ruling declining to move sua sponte to reopen his removal proceedings. More specifically, the Board must review the IJ’s conclusory decision that Reyes-Vargas had not shown “exceptional circumstances” as required before an IJ can move sua sponte to reopen removal proceedings. As his showing, Reyes-Vargas informed the IJ that the Idaho state court had vacated his predicate aggravated felony conviction—aggravated battery against his wife—that had furnished the basis for his removal. This question belongs to the agency. ...
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