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First Circuit Holds That Immigrants Can Pursue Cases From Outside the United States

Released on Tue, Oct 01, 2013

Washington, D.C. - Last week, the First Circuit Court of Appeals held that individuals who have been deported must have the opportunity to pursue motions to reopen their cases from outside the United States.  A motion to reopen is an important procedural safeguard that helps ensure noncitizens are afforded a fair immigration hearing.  The American Immigration Council and the National Immigration Project of the National Lawyers Guild (NIPNLG), which filed an amicus brief in the First Circuit and argued before the court, welcome the court’s ruling in Perez Santana v. Holder.

Despite having lost in nine other circuits, the government continued to vigorously defend a regulation – the so called “departure bar” – barring individuals from pursuing their cases from outside the United States.  This most recent decision means that all but one circuit court of appeals has rejected the government’s arguments and concluded that the regulation is unlawful.  Only the Eighth Circuit Court of Appeals has yet to rule on the legality of the departure bar.  The American Immigration Council and NIPNLG renew their call for the agency to strike this unlawful regulation.

In this case, Vladimir Perez Santana, a lawful permanent resident since the age of 9, was ordered removed based on a single criminal conviction.  He sought a vacatur of his conviction on constitutional grounds and asked the immigration agency to defer his removal until the criminal case was resolved.  The agency refused to do so and deported him.  The criminal court subsequently vacated Mr. Perez Santana’s conviction – thus removing the only basis for his removal – but the Board of Immigration Appeals declined to reopen and reconsider his immigration case because of the “departure bar” regulation.  The Court’s decision means that Mr. Perez Santana will have the opportunity to present his argument for why his case should be reopened and he should be restored to his lawful status.  Mr. Perez Santana was represented by Kathleen Gillespie and Jeffrey Rubin.

Read more about the American Immigration Council and NIPNLG’s challenges to the departure bar on our website, Motions to Reopen from Outside the Country

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For more information, contact clearinghouse@immcouncil.org or call 202-507-7516.

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