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Leonida M. Sarmiento and v. Eric H. Holder

May 21, 2012


Petition for Review of an Order of the Board of Immigration Appeals. Nos. A097 867 848 & A097 867 849

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before POSNER, SYKES and TINDER, Circuit Judges.

An alien subject to an order of removal has 90 days from the entry of a final admin- istrative order of removal to seek to reopen the removal proceedings. The question presented in this case is whether the filing of a motion to reconsider an order of removal tolls that 90-day period until a ruling is made on a motion to reconsider. An Immigration Judge ordered removal for Leonida and Romeo Sarmiento after refusing to adjust their status to permanent residents, and the Board of Immigration Appeals dis- missed their appeal. The Sarmientos moved the Board for reconsideration, which it denied. Within 90 days of that denial, but several months after the Board's initial dismissal, the Sarmientos moved to reopen. The Board denied the motion as untimely, concluding that a motion to reopen must be filed within 90 days of the dismissal of the Board appeal, regardless of the pendency of a motion to reconsider the removal order. Because the Board's interpretation of the applicable statute and regulation is reasonable, the petition for review presented to this court is denied.

I. Background

The Sarmientos, citizens of the Philippines, entered the United States under nonimmigrant visas, Leonida in 2003 and Romeo in 2004. About a month before Leonida's visa was set to expire, her employer petitioned on her behalf for alien-worker status, and she applied for ad- justment of status. Leonida is a nurse and qualified as a skilled worker or professional under 8 U.S.C. § 1153(b)(3)(A)(i) or (ii). At the same time, Romeo applied for adjustment of status as Leonida's spouse. The petition for worker status was granted in late 2004.

Ten months later, immigration officials denied the Sarmientos' applications for adjustment of status because Leonida had not submitted evidence of her certif- ication to practice nursing in the United States, as required by 8 U.S.C. § 1182(a)(5)(C) (the results of a necessary English exam were pending). The Sarmientos reapplied for adjustment of status a few months later, but their applications were again denied, this time because Leonida filed her second application for adjust- ment of status after her lawful status had lapsed for over 180 days, rendering her ineligible for adjustment of status. See id. § 1255 (c)(7), (k). The Department of Homeland Security began removal proceedings in late 2007.

At a removal hearing before the IJ, the Sarmientos renewed their applications to adjust their status. The IJ denied the Sarmientos' applications and ordered them removed. He explained that he could not renew Leonida's first application because it had not been properly filed in the first instance since it did not include evidence of her nursing certification. And, according to the IJ, Leonida was ineligible for adjustment of status under her second application because she filed it after living in the United States unlawfully for more than 180 days.

The Sarmientos appealed to the Board, arguing that their first application had been properly filed and that their unlawful presence in the United States for over 180 days was a result of an error by their former attor- ney. In June 2010, the Board dismissed the appeal, con- cluding that the Sarmientos had not shown that their counsel was ineffective and that the IJ was correct that they were not eligible to adjust status because they had been in the United States unlawfully for more than 180 days.

A month later, the Sarmientos moved for reconsidera- tion, rehashing the arguments they had made in their initial submission to the Board. The Board denied the motion in December 2010, explaining that the motion failed to point out any errors of fact or law in the original dismissal. Nine months after the Board dismissed their original appeal but within 90 days of the Board's denial of their motion to reconsider, the Sarmientos moved to reopen in March 2011. They contended, with supporting evidence, that they were newly eligible for adjustment of status because their daughter, a United States citizen who was now 21, had petitioned to adjust status on their behalf, and those petitions had been approved.

The Board determined that the motion was untimely and denied it. The Board explained that the motion was due within 90 days of its "final administrative order of removal," which it said was the decision issued in June 2010 dismissing the Sarmientos' appeal, not the later order in December denying their motion to recon- sider. The Sarmientos then petitioned for review.

II. Analysis

The Immigration and Nationality Act provides that a "motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i) (emphasis added). The Sarmientos argue that the Board's denial of their motion to reconsider was a final order of removal and that they may move to reopen the Board's dismissal within 90 days of any final order of removal against them. They conclude, therefore, that the 90-day deadline for moving to reopen runs from the date that the court denied their motion to reconsider in December, making their March motion to reopen timely. The government responds that the Sarmientos' motion was untimely because they had to move to reopen within 90 days of the specific order they were challenging--and that order, according to the government, was the Board's initial dismissal of their appeal.

The INA's time limit for moving to reopen is ambigu- ous. First, § 1229a(c)(7)(C)(i) does not state whether a motion to reopen may be filed within 90 days of any final order of removal, or must be filed within 90 days of the specific final order of removal that a party seeks to chal- lenge. Second, the INA's definition of when an order of removal becomes "final" has been interpreted in two ways. The INA itself provides that an order is final when either (1) the Board affirms the IJ's removal order, or (2) the time to appeal the IJ's removal order to the Board expires. 8 U.S.C. § 1101(a)(47)(B). (Section 1101 (a)(47)(B) actually refers to an "order of deportation," but that term is synony- mous with "order of removal." Viracacha v. Mukasey, 518 F.3d 511, 513-14 (7th Cir. 2008).) Some decisions read this provision to limit "final" orders of removal to these two instances, see Ocampo v. Holder, 629 F.3d 923, 927 (9th Cir. 2010), but others understand it to implicitly include orders disposing of motions to reopen and recon- sider as "final" orders of removal, see, e.g., Bronisz v. Ashcroft, 378 F.3d 632, 636-37 (7th Cir. 2004); Dave ...

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