A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, February 9, 2011

Appellate Court Allows Deported Aliens to File Motions to Reopen

May a non-citizen who was previously in deportation proceedings file a motion to reopen his case after he was removed from the United States? The answer is yes, according to a recent a decision by the 6th U.S. Circuit Court of Appeals, Pruidze v. Holder, decided on Feb. 3, 2011.

For many years, the Board of Immigration Appeals (BIA), Immigration Judges and immigration officials have relied on a regulation promulgated by the Attorney General to disallow removed aliens from reopening their immigration cases after they have been physically been removed from the United States. This immigration regulation, commonly known as "the departure bar," can be found at 8 C.F.R. § 1003.2(d). Although there has been several major changes in the immigration statute, the Board of Immigration Appeals still maintains that the departure bar is in full effect, most notably in the decision of Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (B.I.A. 2008), which held that the "departure bar" divests the BIA of jurisdiction to adjudicate motions to reopen filed by aliens who are no longer in the U.S

The 6th Circuit recently reviewed this issue and struck down the departure bar based on two main reasons. First of all, the Circuit Court was not able to find support in the immigration statute for this bar. There is no written law that explicitly takes away the BIA's power to adjudicate a motion to reopen filed by aliens who have left the country. The Court noted that the relevant statute regarding motion actually empowers, rather than limits, the ability of aliens to file a motion to reopen. The statute contains no requirement that the person must be physicaly present in the U.S. to file the motion. In fact, Congress actually repealed a law in 1996 that was a statutory bar for judicial review. It means that Congress invalided a law that barred federal courts from entertaining requests to reopen deportation case after the subject alien has been removed from the U.S. The repeal is another indication that Congress is not in favor of the departure bar. Secondly, the 6th Circuit also cited some recent U.S. Supreme Court decisions to support the notion that the BIA does have jurisdiction (or power) to decide motions to reopen filed by deported aliens. Hence, the 6th Circuit Court of Appeals concluded that the departure bar regulation is not valid.

Although Pruidze v. Holder is only controlling in the states within the 6th Circuit, it is still a very important decision. Generally, any circuit court decision represents persuasive authority that must be considered by the BIA, Immigration Judges and government attorneys. Under the current motion rule, a foreigner generally only has a small window of time to file a motion to reopen. It is not unusual that they are physically removed from the U.S. before they have a chance to file a motion. Pruidze opens the door for these deported aliens to have at least a chance to present their motions.

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