Jose I. Chavarria-Reyes, Petitioner,
Loretta E. Lynch, Attorney General of the United States, Respondent.
September 20, 2016
for Review of an Order of the Board of Immigration Appeals.
Bauer, Posner, and Easterbrook, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
immigration judge ordered Jose Chavarria-Reyes removed to
Mexico after concluding that he lacks permission to be here
and is ineligible for discretionary relief because he has
committed a crime of moral turpitude. He does not contest
either conclusion but contends nonetheless that the IJ erred
by failing to alert him to the possibility of voluntary
departure under §240B(a) of the Immigration and
Nationality Act, 8 U.S.C. §1229c(a).
departure usually depends on a showing of good moral
character, a showing that Chavarria-Reyes cannot make: he has
at least three convictions, for domestic battery, retail
theft, and home-repair fraud. But voluntary departure under
§240B(a) is available without regard to the alien's
character, provided he claims this privilege at the outset of
the proceedings and forswears all other arguments. An alien
who departs voluntarily has more opportunity to return in
later years than does an alien removed involuntarily. The
Board of Immigration Appeals rejected his argument that the
IJ had violated the Due Process Clause of the Fifth
Amendment, and Chavarria-Reyes has filed a petition for
review of that order.
initial problem is that the Board entered its decision on
November 6, 2015, and the petition for review was not
received in our clerk's office until December 8, two days
beyond the 30-day time limit. 8 U.S.C. §1252(b)(1). The
Supreme Court has characterized a predecessor statute as
jurisdictional, Stone v. INS, 514 U.S. 386, 405
(1995), and we held in Sankarapillai v. Ashcroft,
330 F.3d 1004, 1005 (7th Cir. 2003), that the current version
also is jurisdictional. Chavarria-Reyes maintains, however,
that while in detention preceding removal he handed his
petition to a guard on November 30, making it timely under
Fed. R. App. P. 25(a)(2)(C), which applies the "prison
mailbox rule" to all appellate papers. The Attorney
General agrees with this contention, which poses a novel
question in this circuit.
Rule 25(a)(2)(C) provides:
A paper filed by an inmate confined in an institution is
timely if deposited in the institution's internal mailing
system on or before the last day for filing. If an
institution has a system designed for legal mail, the inmate
must use that system to receive the benefit of this rule.
Timely filing may be shown by a declaration in compliance
with 28 U.S.C. §1746 or by a notarized statement, either
of which must set forth the date of deposit and state that
first-class postage has been prepaid.
can't see any reason why this rule would not apply to
immigration. Houston v. Lack, 487 U.S. 266 (1988),
created the prison mailbox rule for use in civil litigation,
where the time limit for filing a notice of appeal is
jurisdictional. Bowles v. Russell, 551 U.S. 205
(2007). If intra-prison filing satisfies a jurisdictional
requirement for civil litigation, it can equally satisfy a
jurisdictional requirement for administrative litigation.
recognize that a panel of the Fifth Circuit once held that
the prison mailbox rule does not apply to immigration
matters. Guirguis v. INS, 993 F.2d 508 (5th Cir.
1993). But Rule 25(a)(2)(C) was amended after
Guirguis, and a later decision from the same circuit
said that a filing while in immigration detention after the
Rule was amended counts as timely. Smith v. Conner,
250 F.3d 277, 279 n.11 (5th Cir. 2001) (dictum). The Fifth
Circuit has since held that immigration detainees represented
by counsel cannot take advantage of Rule 25(a)(2)(C), see
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th
Cir. 2003), but Chavarria-Reyes lacked counsel when he handed
his petition to the guard. What's more, this circuit has
concluded that represented prisoners, no less than those
proceeding on their own, can use the prison mailbox rule,
whose text does not draw a distinction between represented
and pro se litigants. See United States v.
Craig, 368 F.3d 738 (7th Cir. 2004).
Second and Ninth Circuits have held that the prison mailbox
rule applies to immigration proceedings. See
Arango-Aradondo v. INS, 13 F.3d 610, 612-13 (2d Cir.
1994); Barrientos v. Lynch, 829 F.3d 1064 (9th Cir.
2016). No court-other than the superseded opinion in
Guirguis- has held otherwise. We join the Second,
Fifth, and Ninth Circuits in concluding that aliens detained
pending removal can take advantage of Rule 25(a)(2)(C).
Chavarria-Reyes's petition is timely.
Attorney General maintains that we nonetheless lack
jurisdiction because of Chavarria-Reyes's criminal
convictions and the fact that voluntary departure is a
discretionary remedy. See 8 U.S.C. §1252(a)(2)(B), (C).
But §1252(a)(2)(D) provides that questions of law are
reviewable notwithstanding the other parts of §1252(a).
The question Chavarria-Reyes presents-whether the IJ had a
duty to notify him of the opportunity for relief under
§240B(a)-is one of law for the purpose of
there can be no doubt that the IJ failed in this duty.
Section 240B(a) has been implemented by 8 C.F.R.
§1240.26(b)(1)(i), which provides that an IJ may grant
voluntary departure ...