OPINION
This case requires us to examine the “departure bar” provision in 8 C.F.R. § 1003.23(b)(1) in the context of sua sponte reopening. Title 8 C.F.R. § 1003.23 governs the reopening of immigration proceedings before an immigration judge (“IJ”). Section 1003.23(b)(1) allows the IJ to reopen a case on his or her own motion—what is known as sua sponte reopening—or pursuant to a motion to reopen filed by either party. 8 C.F.R. § 1003.23(b)(1). Motions to reopen are subject to various procedural limits. See id. § 1003.23(b)(1), (3). As relevant here, 8 C.F.R. § 1003.23(b)(1) provides: “A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.” This provision, which the agency has interpreted to prevent a noncitizen who has departed the United States from reopening his or her removal proceedings, is known as the “departure bar.” See Toor v. Lynch, 789 F.3d 1055, 1057 (9th Cir. 2015).
Petitioner Filiberto Ruvalcaba, also known as Jaime Balerio Rubalcaba,
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was placed in exclusion proceedings before an IJ and removed from the country more than twenty years ago. After his departure and his subsequent return to the United States, he requested that the IJ reopen his immigration proceedings sua sponte to allow him to apply for adjustment of status. The Board of Immigration Appeals (“BIA”) relied exclusively on the departure bar in affirming the IJs denial of sua sponte reopening, stating that the IJ could not reopen Rubalcabas case because Rubalcaba had previously left the country. Rubalcaba argues that this was impermissible because an IJ should not be prevented from reopening a noncitizens case on the IJs own motion based solely on the noncitizens departure during or after prior proceedings.
This case presents the question whether the departure bar limits an IJs ability to reopen immigration proceedings sua sponte. We have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the departure bar does not apply in the context of sua sponte reopening. That is, an IJs discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, we grant the petition for review.
I.
Rubalcaba, a native and citizen of Mexico, first came to the United States in 1992 when he was fourteen years old. At some point, Rubalcaba left the United States for Mexico. In 1995, Rubalcaba was apprehended while attempting to re-enter the United States through the San Ysidro Port of Entry. Rubalcaba admitted that he was entering the United States without authorization. The agency then charged with removing individuals, the now-defunct Immigration and Naturalization Service, detained Rubalcaba and placed him in exclusion proceedings. An IJ determined that he was inadmissible and ordered him excluded and deported on October 31, 1995. Rubalcaba waived his right to appeal to the BIA, and the government removed him to Mexico after the conclusion of the proceedings.
Five months later, Rubalcaba re-entered the United States “through the hills in Tijuana.” He acknowledges that he was never formally inspected or admitted. He has remained in the United States since 1996.
In 2016, Rubalcaba sought to reopen his proceedings before an IJ. Rubalcaba asked the IJ to exercise her sua sponte reopening authority under 8 C.F.R. § 1003.23(b)(1)
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so that he could apply for adjustment of status based on a visa petition his father had filed on his behalf, which had become current.
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The IJ denied Rubalcabas motion for several reasons. The IJ first explained that Rubalcabas motion to reopen was untimely and that he failed to show due diligence such that he would be entitled to equitable tolling of the ninety-day deadline for filing a motion to reopen. The IJ further determined that Rubalcabas case did not present an exceptional situation that justified a favorable exercise of discretion. Therefore, the IJ declined to exercise her sua sponte reopening authority. In addition, as relevant here, the IJ also determined that she lacked jurisdiction over Rubalcabas case because Rubalcaba had previously departed the United States in 1995. According to the IJ, “the departure bar under 8 C.F.R. § 1003.23(b)(1), prevent[ed] [Rubalcaba] from filing this untimely motion on an executed final administrative order of exclusion.” In other words, the IJ determined she could not consider reopening Rubalcabas case because Rubalcaba had previously left the country.
Rubalcaba appealed to the BIA. The BIA dismissed Rubalcabas appeal, relying solely on the departure bar. The BIA explained that “[t]he Immigration Judge correctly found that reopening based on [Rubalcabas] untimely motion, as well as reopening sua sponte, was barred because [Rubalcaba] had departed the United States.” Therefore, the BIA determined that it did not need to address the IJs alternative reasons for refusing to reopen Rubalcabas proceedings, including the lack of an “exceptional situation” justifying reopening. Rubalcaba timely petitioned for review.
II.
When the BIA denies sua sponte reopening or reconsideration as a matter of discretion, we lack jurisdiction to review that decision, although we retain jurisdiction to review the denial of sua sponte reopening for “legal or constitutional error.” Lona v. Barr, 958 F.3d 1225, 1229 (9th Cir. 2020) (quoting Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)). The parties agree that the validity and application of the departure bar in 8 C.F.R. § 1003.23(b)(1) is a question of law, and that because the BIA relied on the departure bar in denying Rubalcaba relief, we can review the BIAs decision.
We generally review the BIAs denial of a motion to reopen for abuse of discretion. See Toor, 789 F.3d at 1059. But we review the BIAs purely legal determinations de novo. Id. Because the BIAs interpretation of the departure bar “presents a purely legal question” of regulatory interpretation, “we apply de novo review, ‘giving appropriate deference to the agency if warranted.’ ” Id. (quoting Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir. 2012)).
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III.
Our review is focused on whether the departure bar limits an IJs authority to reopen immigration proceedings sua sponte, that is, on his or her own motion—a question of first impression for our Circuit.
When Rubalcaba sought to reopen his immigration proceedings in 2016, 8 C.F.R. § 1003.23(b)(1) provided, in relevant part:
An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals. ․ A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion. ․ A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.
8 C.F.R. § 1003.23(b)(1) (2020) (emphasis added).
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There is a parallel provision limiting reopening by the BIA. See 8 C.F.R. § 1003.2(d) (“A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.”).
A.
In Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008), the BIA examined the departure-bar provision
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and “construed the departure bar rule as imposing a limitation on [its] jurisdiction to entertain motions filed by aliens who had departed the United States.” Id. at 648. According to the BIA, this jurisdictional limitation also applies to requests for sua sponte reopening. Id. at 660. In other words, the BIA understood the regulation to prevent the IJ or BIA from considering reopening a case where a noncitizen had previously left the country during removal proceedings or “after being ordered removed.” Id. at 648; see also id. at 660.
We rejected this interpretation in part in Toor v. Lynch, as applied to regular and timely motions for reopening. See 789 F.3d at 1057. In Toor, we held that an IJ or the BIA cannot apply the departure bar in cases where a noncitizen has filed a timely motion to reopen within ninety days of a final order of removal—regardless of when or how the noncitizen departed the United States. Id. That is because the immigration statute permits a noncitizen to file one motion to reopen proceedings within ninety days of a final order of removal without any limitation based on a noncitizens presence in, or departure from, the United States. Id. at 1060; see 8 U.S.C. § 1229a(c)(7). In Toor, we explained that the BIAs interpretation of the departure bar was impermissible with respect to timely motions to reopen because it conflicted with the “clear and unambiguous” command of the statute. 789 F.3d at 1060–61, 1064; see 8 U.S.C. § 1229a(c)(7). As we noted, every other circuit to consider the question has agreed that the departure bar is invalid in the context of a single, timely motion to reopen. 789 F.3d at 1057 n.1 (collecting cases).
Because the petitioners motion to reopen had been timely in Toor, we did not need to decide whether an untimely motion that relied on the IJs or BIAs sua sponte reopening authority would be subject to the departure bar. Id. Therefore, we left open the question of “the validity of the regulatory departure bar when applied to motions to reopen or to reconsider filed untimely, and thus out of compliance with” the immigration statute. Id. We observed, however, that the Second and Fifth Circuits had concluded that the departure bar could be applied in the context of sua sponte reopening. Id. (citing, inter alia, Zhang v. Holder, 617 F.3d 650, 660–65 (2d Cir. 2010), and Ovalles v. Holder, 577 F.3d 288, 295–96 (5th Cir. 2009)).
We now take up the question that we left open in Toor—whether the departure bar limits an IJs sua sponte reopening authority. We conclude that it does not.
B.
Sua sponte reopening was created by agency regulations; no statute establishes or limits an IJs or the BIAs authority to reopen a case on their own motion. See Reyes-Vargas v. Barr, 958 F.3d 1295, 1302–03 (10th Cir. 2020); Zhang, 617 F.3d at 656–57. We evaluate the BIAs interpretation of its own regulations using “the deference framework announced in Kisor v. Wilkie.” See Reyes-Vargas, 958 F.3d at 1300 (citing Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019)); see also Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020). Here, the relevant interpretation is found in Matter of Armendarez-Mendez—the BIAs published decision concluding that the departure-bar provision in 8 C.F.R. § 1003.23(b)(1) deprives an IJ of “jurisdiction to consider [a noncitizens] motion sua sponte.” See Matter of Armendarez-Mendez, 24 I. & N. Dec. at 660.
According to Kisor v. Wilkie, we must first determine whether 8 C.F.R. § 1003.23(b)(1) is “genuinely ambiguous.” Attias, 968 F.3d at 937 (quoting Kisor, 139 S. Ct. at 2414). The Supreme Court has cautioned that “when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Kisor, 139 S. Ct. at 2414. These tools include the “text, structure, history, and purpose of [the] regulation.” Id. at 2415 (citation omitted). If the regulation is not genuinely ambiguous, we do not defer to the agencys interpretation. Id. “If genuine ambiguity remains” after exhausting the traditional tools of construction, we must then ask whether the agencys interpretation is reasonable. Id. at 2415–16. But even if the agencys interpretation of a genuinely ambiguous regulation is reasonable, “we are not done.” Id. at 2416. Because “not every reasonable agency reading of a genuinely ambiguous rule” receives deference, we “must make an independent inquiry into whether the character and context of the agency interpretation entitles [the interpretation] to controlling weight.” Id.
1.
Joining the Tenth Circuit, we hold that the departure-bar regulation is not genuinely ambiguous. See Reyes-Vargas, 958 F.3d at 1302–03. At all times relevant for Rubalcabas petition for review, 8 C.F.R. § 1003.23(b)(1) stated:
An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals. Subject to [certain exceptions], a party may file only one motion to reconsider and one motion to reopen proceedings. ․ A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later. A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. ․
8 C.F.R. § 1003.23(b)(1) (2020) (emphasis added). The text, structure, history, and purpose of the regulation make clear that the italicized language above—the departure-bar provision—does not apply in the context of sua sponte reopening. See Kisor, 139 S. Ct. at 2415.
First, the plain language of this regulation distinguishes between an IJs ability to reopen “upon his or her own motion at any time”—an IJs sua sponte reopening authority—and a noncitizens ability to file one motion to reopen within ninety days of a final order of removal. See 8 C.F.R. § 1003.23(b)(1) (2020). A “motion to reopen” is limited by time (ninety days) and number (one), unless certain exceptions apply. See id. By contrast, sua sponte reopening does not require a motion, and has historically been permitted “at any time.” Id.; see Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019). According to the plain text of the regulation, the departure bar applies only to “a motion to reopen or reconsider.” See 8 C.F.R. § 1003.23(b)(1). The departure-bar provision reads: “A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.” Id. (emphasis added). On its face, this sentence says nothing about sua sponte reopening authority. See Reyes-Vargas, 958 F.3d at 1305.
Second, the structure of 8 C.F.R. § 1003.23(b)(1) confirms this understanding. Viewed in its regulatory context, the departure-bar provision clearly applies to “a motion to reopen,” rather than to the agencys sua sponte reopening authority. The first sentence of 8 C.F.R. § 1003.23(b)(1) establishes the IJs authority to reopen cases sua sponte “at any time.” The regulation then provides, in the alternative, that either party may file a motion to reopen. Id. The next three sentences of the regulation expressly limit a “motion to reopen” or a motion to reconsider, establishing time and number limits. Id. Again, these time and number limits do not apply to sua sponte reopening; the government acknowledges as much. The next sentence of the regulation contains the departure bar. Id. This structure supports our conclusion that, like the time and number limits in the preceding sentence of 8 C.F.R. § 1003.23(b)(1), the departure bar does not apply to sua sponte reopening.
Third, the history of the regulation reinforces our conclusion that the departure bar does not apply in the context of sua sponte reopening. The Attorney General promulgated the regulations containing the departure bar in 1952, as part of the implementation of the Immigration and Nationality Act. See 17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952) (previously codified at 8 C.F.R. § 6.2) (“A motion to reopen or a motion to reconsider shall not be made by or in [sic] behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States.”). Several years later, the Attorney General added the provision permitting sua sponte reopening before the BIA: “The Board may on its own motion reopen or reconsider any case in which it has rendered a decision.” See 23 Fed. Reg. 9115, 9118 (Nov. 26, 1958) (emphasis added)). In the decades that followed, the Attorney General promulgated regulations establishing the ninety-day time limit for motions to reopen but continued to affirm that sua sponte reopening was available “at any time.” See, e.g., 61 Fed. Reg. 18,900, 18,904 (Apr. 29, 1996) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). After the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), the Attorney General promulgated the current regulations governing reopening by an IJ. See 62 Fed. Reg. 10,312, 10,332–33 (Mar. 6, 1997) (previously codified at 8 C.F.R. § 3.23(b)(1)). The regulations allowed an IJ to reopen proceedings sua sponte “at any time” but established certain limits on “a motion to reopen,” including the departure bar. Id. This history reinforces our conclusion that a request for sua sponte reopening is not subject to the departure bar, because sua sponte reopening has long provided a separate mechanism for reopening that is not subject to the other regulatory limits on reopening.
Finally, the purpose of the regulation is consistent with our understanding that sua sponte reopening is not limited by the departure bar. Sua sponte reopening is an entirely discretionary mechanism. See Bonilla, 840 F.3d at 585. This mechanism is available in cases where the agency is “persuaded that the respondents situation is truly exceptional” and is often a noncitizens only option for seeking relief from a final order of removal. Id. (internal citation omitted); see also In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997) (“The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship”). Put another way, sua sponte reopening gives the agency flexibility in truly unusual cases in which a noncitizen cannot meet the regulatory requirements for a “motion to reopen” but the agency determines that reopening is still justified by the circumstances. We agree with the Tenth Circuit that the plain language of the departure-bar regulation—which speaks only of a “motion to reopen” and does not limit sua sponte reopening authority—is consistent with this purpose. See Reyes-Vargas, 958 F.3d at 1305–06 (“Had the agency written its regulations to attach a post-departure bar to the IJs and Boards sua sponte authority to reopen removal proceedings, the resulting sua sponte authority would be next to worthless.”).
Based on the regulations text, structure, history, and purpose, we conclude that 8 C.F.R. § 1003.23(b)(1) is not genuinely ambiguous. See Kisor, 139 S. Ct. at 2414–15; see also Reyes-Vargas, 958 F.3d at 1306. Rather, the plain language of 8 C.F.R. § 1003.23(b)(1) makes clear that the departure bar limits only “motions to reopen,” not an IJs sua sponte reopening authority. That is the end of our inquiry under Kisor. See Attias, 968 F.3d at 937. Accordingly, we do not defer to the BIAs contrary interpretation in Matter of Armendarez-Mendez. See id. (“If the regulations text is unambiguous, we give no deference to the agencys interpretation: ‘[t]he regulation then just means what it means.’ ”) (quoting Kisor, 139 S. Ct. at 2415).
2.
We recognize that some of our sister circuits have reached the opposite conclusion. See Zhang, 617 F.3d at 664–65; Ovalles, 577 F.3d at 295–96. But these circuits did not have the benefit of the Supreme Courts guidance in Kisor v. Wilkie, which clarified the framework for deferring to an agencys interpretation of its own regulations. See Kisor, 139 S. Ct. at 2414.
Before Kisor, we generally evaluated an agencys interpretation of its own regulations using the framework of Auer v. Robbins. See Marsh v. J. Alexanders LLC, 905 F.3d 610, 623–24 (9th Cir. 2018) (citing Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). Auer provided a “deferential standard” under which an agencys interpretation was “controlling unless plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotation marks and citation omitted). This deferential standard is the one the Second Circuit applied in Zhang v. Holder and the Fifth Circuit applied in Ovalles v. Holder. See Zhang, 617 F.3d at 660 (noting that “the BIAs construction is anything but airtight” but concluding that, although the agencys interpretation was “linguistically awkward ․ we cannot say that the Boards construction is plainly erroneous”); Ovalles, 577 F.3d at 291–92 (explaining that the court was required to “grant the BIAs interpretation of its own regulations ‘considerable legal leeway’ ”) (quoting Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003)).
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As the Tenth Circuit—the only circuit to consider the question after Kisor—concluded, Kisor requires us to “dig deeper” in determining whether a regulation is genuinely ambiguous. See Reyes-Vargas, 958 F.3d at 1307 (“We must apply Kisor’s framework, whatever ․ any other pre-Kisor case held.”). We conclude, as the Tenth Circuit did, that the regulation is not genuinely ambiguous under Kisor’s exacting framework. See id. Therefore, the BIAs interpretation is not entitled to deference.
IV.
In conclusion, we hold that the BIA erred in determining that the departure bar prevented the IJ from reopening Rubalcabas immigration proceedings sua sponte. Therefore, we grant the petition for review and vacate the BIAs decision. Because we conclude that the plain, unambiguous language of the regulation makes clear that the departure bar does not apply in the context of sua sponte reopening, we need not address Rubalcabas alternative argument that he is not subject to the bar based on the timing of his departure from the United States. We remand to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam); Lona, 958 F.3d at 1229.
PETITION GRANTED.
FOOTNOTES
1
. There is some confusion about Petitioners legal name in the agency proceedings and the record. He gave the name “Jaime Balerio-Rubalcaba” to immigration officials when he was first placed in exclusion proceedings, but he later explained that this was his brothers name. Although “Filiberto Ruvalcaba” is the name Petitioner used in his motion to reopen, we refer to him as “Rubalcaba” throughout this opinion for consistency with the BIAs decision in this case.
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. Despite the fact that Rubalcaba himself requested reopening through a motion, this practice has been known as “sua sponte” reopening and considered an exercise of the IJs or BIAs discretion in immigration court practice. See 85 Fed. Reg. 81,588, 81,628 (Dec. 16, 2020) (recognizing “that the BIA has, in the past, exercised what it termed ‘sua sponte authority’ in response to a motion”).
3
. Rubalcabas father became a lawful permanent resident around 1989 and filed a visa petition on Rubalcabas behalf in 1993. Rubalcaba asserted in his motion to reopen that because he had aged out of the relevant category—unmarried children of lawful permanent residents—he “had to wait over 23 years to seek adjustment of status.”
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. Although the IJ gave several other reasons for denying sua sponte reopening, including the lack of an “exceptional situation” justifying reopening, we express no opinion on these other reasons because “our review is confined to the BIAs decision and the bases upon which the BIA relied.” Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988).
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. As of January 15, 2021, the text of subsection (b)(1) has been amended by regulation. See 85 Fed. Reg. 81,588, 81,655 (Dec. 16, 2020). The amended regulation preserves most of subsection (b)(1), including the departure-bar language, but replaces the first sentence above with the following: “Unless jurisdiction is vested with the Board of Immigration Appeals, an immigration judge may at any time reopen a case in which he or she has rendered a decision on his or her own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service. Unless jurisdiction is vested with the Board of Immigration Appeals, in all other cases, an immigration judge may only reopen or reconsider any case in which he or she has rendered a decision solely pursuant to a motion filed by one or both parties.” See id. at 81,655; 8 C.F.R. § 1003.23(b)(1) (2021). Although the new regulation purports to limit the instances in which an IJ may exercise sua sponte reopening authority, which might affect Rubalcabas case on remand, the government concedes that we must evaluate the regulation as it existed and was applied at the time of the BIAs decision.
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. The BIAs decision focused primarily on 8 C.F.R. § 1003.2(d), which relates to reopening by the BIA, but explained that the language in 8 C.F.R. § 1003.23(b)(1), which relates to reopening by an IJ, was “[e]ssentially identical.” Matter of Armendarez-Mendez, 24 I. & N. Dec. at 648. We have previously recognized that Matter of Armendarez-Mendez pertains to both of these regulations. See Toor, 789 F.3d at 1058–59.
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. The Third Circuit reached the same result in Desai v. Attorney General, adopting the Second Circuits analysis from Zhang. See 695 F.3d 267, 270–71 (3d Cir. 2012) (citing Zhang, 617 F.3d at 665). We note that, post-Kisor, the Third Circuit has called this approach into question. See Ovalle v. Atty Gen., 791 F. Appx 333, 336 (3d Cir. 2019) (“That reasoning ․ does not survive the Supreme Courts recent decision in Kisor.”).
MURGUIA, Circuit Judge: