The 11th Circuit Federal Court of Appeals has reversed the Board of Immigration Appeals (“BIA”) prior rulings that a person cannot file a Motion to Reopen if the person has departed the United States. According to 8 C.F.R. 1003.2(d), the BIA is prohibited from considering a Motion to Reopen filed by a non-citizen who is outside the United States.
The 11th Circuit Court, in Lin v. U.S. Attorney General, held that this regulation impermissibly conflicts with Section 240(c)(7)(A) of the Immigration and Nationality Act. This ruling by the 11th Circuit has broad implications that will benefit non-citizens who can now file or who have filed Motions to Reopen immigration court proceedings.
It is important that anyone who has filed a Motion to Reopen previously that was denied based solely on the departure bar or anyone who plans on filing a Motion to Reopen consult an experienced immigration attorney.