Motions to Reopen While Outside the U.S.

It generally used to be the case that when a noncitizen would leave the country, be it through deportation or voluntary departure, he could not reopen his immigration case from outside the United States. However, an en banc panel of the U.S. Court of Appeals for the Tenth Circuit has rejected the government’s attempt to bar noncitizens from seeking to reopen their cases from outside the United States, allowing them now to reopen their cases from their respective home countries. This is the seventh appellate court to find the regulation barring noncitizens from pursuing their cases after leaving the country, what is known as the “departure bar,” to be unlawful. The departure bar not only precludes reopening or reconsideration based on new evidence or arguments that may affect the outcome of a case, but also deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate motions to remedy deportations done by the Department of Homeland Security that were wrongfully executed, whether intentionally or not.

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As such, this outcome is a significant step forward in protecting the right to a fair immigration hearing. The decision is particularly significant because the Tenth Circuit had been the only court at odds with the majority. Yet despite the overwhelming rejection of the departure bar, the government continues to defend the regulation and apply it to cases outside the circuits that have invalidated the bar. The American Immigration Council’s Legal Action Center (LAC) and the National Immigration Project of the National Lawyers Guild (NIPNLG) have filed amicus briefs in the Tenth Circuit and have argued before the court. Moreover, they are urging the Department of Justice and the Executive Office for Immigration Review to rescind the regulation barring post-departure motions to reopen on the grounds that it is an unlawful regulation. The new decision made by the en banc court will surely impact a significant amount of cases in the future, hopefully even putting enough pressure for the government to strike down their unlawful regulation once and for all.

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