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Chavarria-Reyes v. Lynch

United States Court of Appeals, Seventh Circuit

December 30, 2016

Jose I. Chavarria-Reyes, Petitioner,
v.
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued September 20, 2016

         Petition for Review of an Order of the Board of Immigration Appeals. No. A206-274-376.

          Before Bauer, Posner, and Easterbrook, Circuit Judges.

          EASTERBROOK, CIRCUIT JUDGE.

         An 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).

         Voluntary 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.

         His 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.

         We 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.

         We 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).

         The 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.

         The 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 §1252(a)(2)(D).

         And 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 ...


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