FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAIME BALERIO RUBALCABA, No. 17-70845 Petitioner, Agency No. v. A074-364-452 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 12, 2021 Pasadena, California Filed June 2, 2021 Before: Danny J. Boggs, * Milan D. Smith, Jr., and Mary H. Murguia, Circuit Judges. Opinion by Judge Murguia * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 BALERIO RUBALCABA V. GARLAND SUMMARY ** Immigration The panel granted Jaime Balerio Rubalcaba’s petition for review of a decision of the Board of Immigration Appeals, vacated the BIA’s decision, and remanded, holding that the “departure bar” provision in 8 C.F.R. § 1003.23(b)(1) does not apply in the context of sua sponte reopening. Section 1003.23(b)(1) allows an immigration judge (“IJ”) to reopen a case on his or her own motion—sua sponte reopening—or pursuant to a motion to reopen filed by either party. At all times relevant to this case, the provision of 8 C.F.R. § 1003.23 known as the “departure bar” provided: “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.” Rubalcaba was removed from the United States in 1995. In 2016, after his subsequent return, he requested that an IJ reopen his case sua sponte to allow him to apply for adjustment of status. The BIA relied exclusively on the departure bar in affirming the IJ’s denial of sua sponte reopening. In the published decision of Matter of Armendarez- Mendez, 24 I. & N. Dec. 646 (BIA 2008), the BIA construed the departure bar rule as imposing a limitation on its ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BALERIO RUBALCABA V. GARLAND 3 jurisdiction to entertain motions filed by noncitizens who had departed the United States, and concluded that it applied to sua sponte reopening. This court rejected this interpretation in Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015), as applied to timely motions for reopening, concluding that the BIA’s interpretation impermissibly conflicted with clear and unambiguous statutory language permitting a noncitizen to file one motion to reopen within ninety days of a final order of removal. Because the petitioner’s motion to reopen had been timely in Toor, the court did not decide whether an untimely motion that relied on sua sponte reopening authority would be subject to the departure bar. The panel joined the Tenth Circuit in holding that the departure bar does not limit an IJ’s sua sponte reopening authority. Applying the framework for evaluating an agency’s interpretation of its own regulations announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the panel …
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