Manuel Munoz De Real v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1945
M ANUEL A NTONIO M UNOZ DE R EAL,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review from an Order
of the Board of Immigration Appeals.
No. A090-904-546
A RGUED JANUARY 11, 2010—D ECIDED F EBRUARY 11, 2010
Before E ASTERBROOK, Chief Judge, K ANNE, Circuit Judge,
and K ENNELLY, District Judge.1
K ENNELLY, District Judge. Manuel Antonio Munoz
de Real is a Mexican citizen and national. He was a legal
permanent resident of the United States until 2001,
1
Judge Matthew F. Kennelly of the United States District Court
for the Northern District of Illinois is sitting by designation.
2 No. 09-1945
when an immigration judge ordered him removed to
Mexico after he was convicted of a felony drunk driving
charge in Indiana. In 2007, Munoz de Real filed a motion
to reopen the removal proceedings on the ground that
based on intervening developments in the law, the
offense of which he was convicted was not a proper
basis for removal. The immigration judge (IJ) denied the
motion, holding that 8 C.F.R. § 1003.23(b)(1) divests the
immigration court of jurisdiction to hear a motion to
reopen from an alien who has already left the country. The
Board of Immigration Appeals (BIA) affirmed the IJ’s
order. Munoz de Real filed a petition for review. For the
reasons set forth below, we deny the petition.
I. Background
In January 2001, Munoz de Real was convicted of oper-
ating a vehicle while intoxicated (OWI) with a prior OWI
conviction, in violation of an Indiana statute. At the time
of his conviction, this offense was considered an aggra-
vated felony that subjected an alien to removal. The
government commenced removal proceedings against
Munoz de Real under 8 U.S.C. § 1227(a)(2)(A)(iii). He
was ordered removed on April 11, 2001. Munoz de Real
conceded his removability and left the country shortly
thereafter.
In December 2007, Munoz de Real moved to reopen the
removal proceedings. He argued that his removal order
was rendered a “legal nullity” by this court’s ruling in
Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001), decided in
July 2001, in which the court held that drunk driving
No. 09-1945 3
offenses are not “crimes of violence” and therefore
are not aggravated felonies for purposes of determining
an alien’s removability. Id. at 605-12.
The IJ denied Munoz de Real’s motion in Decem-
ber 2008 for lack of jurisdiction because he had departed
the country in 2001. Under applicable regulations, 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 IJ further ruled that there was no
basis to reopen Munoz de Real’s removal proceeding
sua sponte because the April 2001 removal order was
lawful and in accordance with the law at the time it
was issued and did not result in a “gross miscarriage of
justice.”
Munoz de Real appealed to the BIA, which affirmed
the dismissal. In affirming, the BIA cited its recent
ruling in Matter of Armendarez, 24 I & N Dec. 646 (BIA
2008), that immigration courts lack jurisdiction over a
motion to reopen filed by an alien who has departed the
United States. Munoz de Real timely filed the present
petition for review in April 2009.
II. Analysis
Pursuant to the Supreme Court’s recent decision in
Kucana v. Holder, ___ U.S. ___, 2010 WL 173368 (U.S. Jan. 10,
2010), this court has jurisdiction to review the denial of
a motion to reopen a removal proceeding.
4 No. 09-1945
Munoz de Real argues that the BIA’s determination
that the immigration court lacked jurisdiction was errone-
ous. He contends that 8 U.S.C. § 1229a(c)(7)(A) gives
an alien an absolute right to file one motion to reopen,
despite the so-called “departure bar” contained in 8 C.F.R.
§ 1003.23(b)(1). The question of whether that regulation
conflicts with 8 U.S.C. § 1229a(c)(7)(A), which states that
“an alien may file one motion to reopen proceedings
under this section” with no reference to departure-
based restrictions, is one that has divided the circuits. This
court has not yet considered the question. Munoz de Real
urges us to join the Fourth and Ninth Circuits, which
have ruled that immigration courts may hear motions
to reopen filed on behalf of departed aliens. William v.
Gonzales, 499 F.3d 329 (4th Cir. 2007); Lin v. Gonzales, 473
F.3d 979 (9th Cir. 2007).
This court need not determine the effect of the depar-
ture bar in this case. The reason is that Munoz de Real’s
motion to reopen was time-barred. Munoz de Real
filed the request more than six years after our ruling in
Bazan-Reyes. The governing statute and regulation
require a motion to reopen to be filed within ninety
days of the entry of an order of removal. 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.23(b)(1). For Munoz
de Real, that ninety-day period expired over six years
before he filed his motion to reopen.
Before the immigration court and at oral argument in
this court, Munoz de Real argued that his untimely filing
should be excused because he received ineffective assis-
tance from the attorney who handled the removal pro-
No. 09-1945 5
ceeding. The argument fails. As this court has repeatedly
held in other contexts, attorney negligence is not, with-
out more, a basis to toll a statute of limitations. See, e.g.,
Reschny v. Elk Grove Plating Co., 414 F.3d 821, 824 (7th
Cir. 2005); Modrowski v. Mote, 322 F.3d 965, 967-68 (7th
Cir. 2003). And even were this not the case, Munoz
de Real has offered no basis to excuse a six-plus year
delay in moving to reopen. In short, his motion to
reopen was unquestionably time-barred.
One final issue merits brief discussion. Munoz de Real
contends that the IJ erred by not exercising her discretion
to reopen his case sua sponte, which he argues an IJ is
permitted to do “at any time” under 8 C.F.R.
§ 1003.23(b)(1). Munoz de Real suggests in his brief that
the IJ did not reach the question of whether this case
merited the exercise of discretion because she deter-
mined that she lacked jurisdiction based on his departure
from the United States.
The IJ’s decision makes clear, however, that she did in
fact reach the question of whether to exercise her discre-
tion to reopen the case but chose not to do so. The IJ noted
that Munoz de Real’s removal order was valid under
the law as it stood at the time. She found there was insuf-
ficient evidence that the order was a gross miscarriage
of justice and concluded as a result that discretionary
reopening of the removal proceeding was not justified.
Munoz de Real offers nothing that suggests that this
finding was an abuse of discretion, and we see no reason
to overturn it.
6 No. 09-1945
III. Conclusion
For the foregoing reasons, the petition for review is
D ENIED.
2-11-10