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statuteappealhearingmotionregulationasylumvisaliens
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Ek Hong Djie v. Garland

Facts

Ek Hong Djie and Yohana Dewi Mulyani, both ethnically Chinese Christians from Indonesia, entered the United States in 1998 with temporary non-immigrant authorization but overstayed their visas. In 2000, they were served with Notices to Appear for removal proceedings but failed to appear at their hearing, resulting in an in absentia removal order. They filed a motion to reopen their removal proceedings in 2007, which was denied, and subsequently sought to reopen again in 2018, arguing changed country conditions in Indonesia and seeking asylum and cancellation of removal.

Petitioners Ek Hong Djie and Yohana Dewi Mulyani overstayed their permission to visit the United States 20 years ago, and they've been here ever since. For the second time after they were ordered removed, they asked the Board of Immigration Appeals to reopen their removal proceedings. For the second time, the Board refused. A statute bars the relief these petitioners seek. So we deny their petition.

Issue

Whether the Board of Immigration Appeals erred in refusing to reopen the removal proceedings based on the number bar limitation and the validity of the federal regulation attempting to create an exception to that bar.

Whether the Board of Immigration Appeals erred in refusing to reopen the removal proceedings based on the number bar limitation and the validity of the federal regulation attempting to create an exception to that bar.

Rule

Under 8 U.S.C. 1229a(c)(7)(A), aliens are limited to one motion to reopen removal proceedings, with a single statutory exception outlined in subparagraph (C)(iv). The regulation 8 C.F.R. 1003.2(c)(3), which attempts to create an additional exception, is invalid as it contradicts the statute.

The INA imposes both a time bar and a number bar on motions to reopen, and both are relevant to this case. The time bar appears in 8 U.S.C. 1229a(c)(7)(C)(i): 'Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.' Immediately thereafter is a statutory exception: There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under [8 U.S.C. 1158 or 1251(b)(3)] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding. 8 U.S.C. 1229a(c)(7)(C)(ii) (emphasis added).

Analysis

The court determined that the petitioners' claims were number-barred under the statute, as they had already filed one motion to reopen and did not qualify for the exception. The court also invalidated the regulation that sought to create an additional exception, affirming that regulations cannot override clear statutory requirements.

We first (A) hold that petitioners' claims are number-barred. Then we (B) reject petitioners' resort to federal regulations and instead apply the statute as written. Finally, we (C) deny the petition without remanding to the BIA.

Conclusion

The Fifth Circuit denied the petition for review, affirming the BIA's decision not to reopen the removal proceedings due to the number bar limitation.

We cannot do so. We first (A) hold that petitioners' claims are number-barred. Then we (B) reject petitioners' resort to federal regulations and instead apply the statute as written. Finally, we (C) deny the petition without remanding to the BIA.

Who won?

The government prevailed in this case because the court upheld the BIA's decision, finding that the petitioners' motion to reopen was barred by the number limitation in the statute.

The government prevailed in this case because the court upheld the BIA's decision, finding that the petitioners' motion to reopen was barred by the number limitation in the statute.

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