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Viewing entries tagged
departure bar
The Ninth Circuit has determined that the regulatory departure bar does not bar the agency from sua sponte reopening a removal order.
The full text of Balerio Rubalcaba v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/02/17-70845.pdf
The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”
The full text of Reyes-Vargas v. Barr can be found here:
The Ninth Circuit has determined that when the Department of Homeland Security removes an appellant while his appeal of a denied motion to reconsider is pending before the Board of Immigration Appeals, his appeal is not considered withdrawn under the regulatory departure bar. “We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, we hold that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”
The full text of Lopez-Angel v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/16-72246.pdf
Two regulations that predate the passage of IIRIRA (collectively referred to as "the departure bar") provide that a noncitizen who is the subject of immigration proceedings may not make a motion to reopen or reconsider “subsequent to his or her departure from the United States.” In Matter of Armendarez-Mendez, the Board of Immigration Appeals (BIA) held that the departure bar survived the passage of IIRIRA. Previously, the Ninth Circuit had held that the departure bar does not apply to noncitizens who departed the United States either before removal proceedings have commenced, or after removal proceedings were completed. The court has also held that the departure bar is invalid as applied to a noncitizen who is involuntarily removed from the United States.
In Toor v. Lynch, the court addressed whether the departure bar may be applied to a noncitizen who voluntarily departs the United States during removal proceedings. Consistent with the other circuits who have addressed the question, the Ninth Circuit held that the departure bar is inapplicable regardless of how the non-citizen left the United States. Rejecting the decision in Armendarez-Mendez, the court stated that "Congress has directly spoken to the precise question at issue; the text of IIRIRA makes clear that the statutory right to file a motion to reopen and a motion to reconsider is not limited by whether the individual has departed the United States." "IIRIRA limits the right to file a motion to reopen and a motion to reconsider by number, time, and content, but not in any respect by whether the individual has departed the United States."
Notably, the Court stated that because Toor's motion to reopen was filed in a timely manner, it need not decide if the departure bar could be applied to untimely motions to reopen.
The full text of Toor v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/10-73212.pdf
