August 14, 2018

Tenth Circuit: Post-Departure Bar from Reviewing Motions to Reopen Filed by Noncitizens Outside the United States Impermissibly Interferes with Congress’ Intent to Afford Such a Statutory Right

The Tenth Circuit Court of Appeals published its opinion in Contreras-Bocanegra v. Holder, Jr. on Monday, January 30, 2012.

The Tenth Circuit granted the petition for review and vacated the Board of Immigration Appeals’ decision. Petitioner, a citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, he received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Security detained him upon his return from a visit to Mexico and placed him in removal proceedings on the ground that his conviction rendered him inadmissible. An Immigration Judge ordered him removed from the United States, and the Board affirmed. The Tench Circuit subsequently denied Petitioners’ petition for review. From Mexico, Petitioner filed a timely motion to reopen his removal proceedings based on ineffective assistance of counsel. The Board denied the motion on jurisdictional grounds, “concluding pursuant to the post-departure bar that it lacked authority to review a motion to reopen filed by a noncitizen outside of the United States.” He then “petitioned for review of the Board’s decision, arguing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229a(c)(7) to file a motion to reopen. . . . [T]he panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar,” relying on Rosillo-Puga, 580 F.3d 1147 (10th Cir. 2009).

The Tenth Circuit granted rehearing en banc to reconsider its decision in Rosillo-Puga, and now overturns it and its progeny. The en banc rehearing considered “whether the so-called postdeparture bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Nationality Act. The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text.”

In Rosillo-Puga v. Holder, a divided Tenth Circuit panel upheld the post-departure bar as an authorized exercise of the Attorney General’s rulemaking authority. However, since then, six circuits have consecutively invalidated the regulation. “Rather than stand alone in upholding the post-departure bar, [the Tenth Circuit chose] to overturn Rosillo-Puga, . . . [holding] that the subject regulation impermissibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).”

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