I am filing a response to the Ninth Circuit's Order to Show Cause (OSC) issued against one of our Petitions For Review. In doing the legal research about the issues, I ran across the BIA's Post-Departure Bar Rule and their precedent decision in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) which interprets 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) as divesting the agency of jurisdiction once the alien is outside of the United States. This holds true even if the alien is forcibly removed by the government itself.
The application of this regulation in such a situation creates a topsy-turvy Alice-in-Wonderland world where you can have a statutory right to file either an appeal (8 C.F.R. § 1003.23(b)(1)) or an motion to reopen (8 C.F.R. § 1003.2(d)) and before the BIA has to rule on the appeal or motion, they can deny a stay of removal (interlocutory decision) and then the government can forcibly remove the alien, thus stripping the BIA of jurisdiction to rule on the merits of the appeal or motion.
Incredibly, this self-serving application of an agency promulgated rule has created a circuit split in the federal appellate courts.
Our client has filed a motion to reopen based upon the ineffectiveness of his prior counsel. Under Compean II he has a legal right to do so. However, he is presently in ICE custody and the BIA denied our Emergency Motion for Stay. Thus, necessitating the Petition for Review to the Ninth Circuit.
However, there is no "Final Order" for the court to review under INA § 242(a)(1), hence the OSC from the Court.
My argument is twofold:
First, under INA § 242(a)(2)(D), the court has appellate jurisdiction to review questions of law or constitutional matter. In this case, the BIA's Post-Departure Bar Rule violates my client's procedural due process right to have a decision rendered on his lawfully raised motion to reopen.
Second, under the jurisdiction stripping Congressional REAL ID Act of 2005, which eliminated habeas review from the district courts, the only way habeas review could be eliminated is if an "adequate and effective" substitute were available, otherwise the Suspension Clause of the Constitution would be violated. Therefore, a claim that could have been raised under traditional habeas review can be raised under a Petition for Review to the appellate court.