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Noncitizens Can Seek Reopening and Reconsideration of Their Cases from Outside the US

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The Legal Action Center (“LAC”), working with the National Immigration Project of the National Lawyers Guild, has challenged on multiple occasions the “departure bar,” a regulation that precludes noncitizen aliens from filing a motion to reopen or reconsider a removal case by aliens after they have left the United States.

The problem with the “departure bar” is that it deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate the motions to remedy wrongfully executed measures by DHS. It has been a long but successful litigation (in almost all Circuit courts for LAC) which supports statutory right to seek reopening and reconsidering by a noncitizen alien of a removal case no matter where the alien is located.

On October 1, 2012, U.S. Court of Appeals for the Fifth Circuit granted two petitions for review to eliminate the “departure bar” for aliens seeking to reopen and reconsider a removal case. The court held that it is unlawful to bar the noncitizen aliens from filing a motion to reopen (Garcia Carias v. Holder) or a motion to reconsider (Lari v. Holder). The reasoning is simple – the statutory text conferring the right to file a motion to reopen or to reconsider does not place a geographic restriction based on the location of the person applying. In Lari v. Holder, the court struck down the “departure bar” for submission of a motion to reconsider and in Garcia Carias v. Holder, the court struck down the “departure bar”for submission of a motion to reopen in immigration matters when the aliens were outside the US. Relying on Chevron and the plain meaning doctrine along with traditional tools of statutory interpretation, the court held that 8 U.S.C. Sec. 1229a (c)(6)(A) and 8 U.S.C. Sec. 1229a (c)(7)(A) have clear language regarding motions to reopen and reconsider. That statutory language does not distinguish between those aliens who are abroad and those who are in the US.

Garcia Carias v. Holder and Lari v. Holder are very important decisions that allow immigrants to pursue their rights in the US even after they have left or were deported from the US. To date nine circuit courts have rejected the “departure bar.” However, the Board of Immigration Appeals continues to deny certain motions where ICE deported the noncitizen before the motion was decided.

Please see other decisions rejecting the “departure bar” made by other circuits listed in another article.

Filed under: Immigration Issues

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