Published recently in The National Law Review an article regarding the “Departure Bar” by William J. Flynn, III of Fowler White Boggs P.A.:
Recently, the Tenth Circuit became the seventh circuit court to reject the“departure bar” to motions to reopen found at 8 C.F.R. § 1003.2(d). The departure bar essentially prohibits noncitizens from pursuing motions to reopen or reconsider in removal proceedings after having departed from the United States. The Tenth Circuit had been the only court to issue a precedent decision in favor of the bar, but overturned that decision in a recent rehearing en banc. Contreras-Bocanegra v. Holder, 629 F.3d 1170 (10th Cir. 2010).
The Third, Fourth, Sixth, and Ninth Circuits, among others, had all specifically found the bar unlawful. See e.g. Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011). These courts have held, and many immigrants’ rights groups have argued, that the regulation deprives immigration judges and the Board of Immigration Appeals the authority to adjudicate motions to remedy wrongfully executed deportations. Additionally, the regulation conflicts with a noncitizens’ statutory right to pursue reopening.
Although many courts have outright rejected the departure bar, the issue still remains open in many other circuits, the 11th included. The closest the Eleventh Circuit has come to making such a decision was in Ugokwe v. U.S. Attorney General, 453 F.3d 1325 (11th Cir. 2006), in which it held that the filing of a motion to reopen tolls the period of voluntary departure, so as to prevent a subsequent departure from invalidating the motion. Nevertheless, the Ugokwecourt did side with the prior, similar holdings of the Ninth and Third Circuits, and so there remains hope that the Eleventh Circuit could do the same with respect to the legality of the departure bar, should the issue arise.
The full text of the Contreras-Bocanegra decision can be found here.
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