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Motions to Reopen from Outside the Country

Last Updated: 
Tue, Jan 15, 2013

The LAC, working with the National Immigration Project of the National Lawyers Guild, has repeatedly challenged the “departure bar,” a regulation that precludes noncitizens from filing a motion to reopen or reconsider a removal case after they have left the United States. The departure bar not only precludes reopening or reconsideration based on new evidence or arguments that may affect the outcome of a case, but also deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate motions to remedy deportations wrongfully executed, whether intentionally or inadvertently, by DHS. We argue that the regulation conflicts with the statutory right to pursue reopening and, as interpreted by the government, is an impermissible restriction of congressionally granted authority to adjudicate immigration cases.

CASES | ADVOCACY I RESOURCES

CASES

FIRST CIRCUIT

  • Perez Santana v. Holder, No. 12-2270 (1st Cir. amicus brief submitted Jan. 4, 2013). The First Circuit issued a precedent decision on September 27, 2013, finding that the departure bar conflicts with the statute. Read our statement.
  • Pena-Muriel v. Keisler, 489 F.3d 438 (1st Cir. 2007) (amicus brief in support of rehearing filed Sept. 25, 2007).  The court issued a precedent decision on October 24, 2007, denying the petition for rehearing, but clarifying that whether the departure bar conflicts with the motion to reopen statute is an open issue in the circuit.  Pena-Muriel v. Gonzales, 510 F.3d 350 (1st Cir. 2007).

SECOND CIRCUIT

  • Mansilla-Palencia v. Keisler, No. 07-1032 (2d Cir. amicus brief filed Oct. 2, 2007) (case denied without addressing validity of the departure bar, Mansilla-Palencia v. Mukasey, 2008 U.S. App. LEXIS 4488 (2d Cir. Mar. 3, 2008)).

THIRD CIRCUIT

  • Taylor v. AG of the US, No. 12-2599 (3d Cir. amicus brief submitted Aug. 30, 2012)
  • Izquierdo v. AG of the US, No. 12-2499 (3d Cir. amicus brief submitted Aug. 23, 2012)
  • Prestol Espinal v. Atty General of U.S., No. 10-1473 (3d Cir. amicus brief filed June 8, 2010). The court issued a precedent decision on Aug. 3, 2011, finding that the departure bar conflicts with the motion to reopen statute. Read our statement.

FOURTH CIRCUIT

  • William v. Gonzales, No. 06-1284 (4th Cir. amicus brief filed July 25, 2006). The court issued a precedent decision on September 6, 2007, finding that the departure bar conflicts with the motion to reopen statute.  William v. Gonzales, 499 F.3d 329 (4th Cir. 2007).

FIFTH CIRCUIT

  • Lari v. Holder, No. 11-60706 (5th Cir. argued June 5, 2012). The Court issued a precedent decision on September 27, 2012, finding that departure bar conflicts with the motion to reconsider statute. Read our statement.
  • Ovalles v. Mukasey, No. 07-60836 (5th Cir. amicus brief filed March 13, 2008). The court issued a precedent decision on July 27, 2009, applying the departure bar to a sua sponte motion, but declining to decide whether the departure bar conflicts with the motion to reopen statute.  Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009).

SIXTH CIRCUIT

  • Pruidze v. Holder, No. 09-3836 (6th Cir. amicus brief filed Dec. 16, 2009). The court issued a precedent decision on February 3, 2011, finding that the departure bar is unlawful.  Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011).  Read our statement.

EIGHTH CIRCUIT

  • Marroquin v. Holder, No. 10-1846 (8th Cir. amicus brief filed Aug. 16, 2010) (case granted and remanded without addressing the validity of the departure bar, Marroquin v. Holder, 2011 U.S. App. LEXIS 10350 (8th Cir. May 23, 2011)).

NINTH CIRCUIT

  • Gonzalez Salazar v. Holder, No. 09-70867 (9th Cir. amicus brief filed Oct. 8, 2010).
  • Reyes Torres v. Holder, Nos. 09-70214, 08-74452 (9th Cir. amicus brief filed Jan. 11, 2010). The court issued a precedent decision on April 7, 2011, finding that the departure bar conflicts with the motion to reopen statute.  Reyes Torres v. Holder, __ F.3d __, 2011 U.S. App. LEXIS 7062 (9th Cir. Apr. 7, 2011). Read our statement.
  • Jimenez-Barrerra v. Holder, No. 05-77110 (9th Cir. amicus brief filed Apr. 30, 2009) (case granted and remanded without addressing the validity of the departure bar, 2009 U.S. App. LEXIS 23772 (9th Cir. Oct. 28, 2009)).

TENTH CIRCUIT

  • Contreras-Bocanegra v. Holder, 629 F.3d 1170 (10th Cir. 2010) (amicus brief in support of rehearing en banc filed Mar. 8, 2011). On January 30, 2012, the en banc court  vacated the panel's prior decision (629 F.3d 1170 (10th Cir. 2010)), overruled Rosillo-Puga, and found that the departure bar conflicts with the motion to reopen statute.
  • Rosillo-Puga v. Mukasey, No. 07-9564 (10th Cir. amicus brief filed Jan. 18, 2008). The court issued a precedent decision on September 15, 2009, upholding the departure bar.  Rosillo-Puga v. Holder, 508 F.3d 1147 (10th Cir. 2009).

ADVOCACY

Petition for Rulemaking to Amend Regulations Governing Motions to Reopen and Reconsider Removal Proceedings for Noncitizens Who Depart the United States (submitted August 6, 2010). The LAC submitted a Petition for Rulemaking to the Department of Justice and the Executive Office for Immigration Review, urging the Department to rescind the regulation barring post-departure motions to reopen. 

RESOURCES

Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues (March 14, 2012). This Practice Advisory discusses the "departure bar" to motions to reopen and arguments adopted by circuit courts that have rejected or upheld the bar.