Regulaton Barring Reopening of Immigration Proceedings for Previously Romoved Persons is Valid

Rosillo-Puga v. Holder, ___ F.3d ___, 2009 WL 2929828 (10th Cir. 2009).
Regulation, 8 CFR 1003.23(b)(1), barring reopening of deportation on person previously removed, is valid, and deprives immigration judge (IJ)of jurisdiction to rule on motion to reopen. The majority of the COA panel rejects any reading of the regulation that would allow review: the bar still applied to those like petitioner who were not “currently under removal proceedings” because already removed; the more general reconsideration reg that allowed for reconsideration “at any time” did not override the more specific post-removal bar; an IJ lacks authority to sua sponte consider a petitioner’s post-removal motion to reopen (petitioner argued he presented an extraordinary circumstance: a circuit decision, after petitioner’s removal and in another individual’s case, held petitioner’s state felony as not a removable crime of violence); the regulation comports with the statute. Lucero dissents, reasoning that the regulation is in contravention to the statute which allows reconsideration even after removal, and that an IJ has jurisdiction to sua sponte consider a motion to reopen.