Monday, May 2, 2011

Ninth Circuit Over Turns BIA Post-Departure Bar Rule in 8 CFR § 1003.2(d)

In a published decision, post on April 7, 2011, the Ninth Circuit Court of Appeals overturned the Board of Immigration Appeals Post-Departure Bar Rule, in 8 C.F.R. § 1003.2(d), which the BIA has consistently held to strip them of jurisdiction to an alien's Motion to Reopen or Reconsider once the alien has been physically removed from the U.S.

What this rule has in practice meant, is that once someone has been issued a final order of removal, ICE will use any and all means to physically remove someone before the BIA has to rule on any Motion to Reopen, especially if the have a prima facie showing of ineffective assistance provided by their former counsel.

The case name is REYES-TORRES v. HOLDER. The holding language is as follows:

After reviewing the statutes, we determined that “the intent of Congress is clear,” and that “in passing IIRIRA, Congress anticipated that petitioners would be able to pursue relief after departing from the United States.” Coyt, 593 F.3d at 906. As such, we held that:
The only manner in which we can harmonize the provisions simultaneously affording the petitioner a ninety day right to file a motion to reopen and requiring the alien’s removal within ninety days is to hold, consistent with the other provisions of IIRIRA, that the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.
Id. at 907.

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