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Reconsider after departure rule not uniform-II

October 14
22:23 2010

(Continued from last week’s article)

The Court of Appeals for the Ninth Circuit, in Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007), limited the reach of the departure bar through a different sort of logic. The departure-bar regulation as written, that court pointed out, “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal … proceedings.'”

Thus, it should not bar a motion to reopen by someone whose removal proceedings have already concluded and who has been removed. The BIA subsequently rejected this holding in Matter of Armendarez, claiming the authority under Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) to refuse to apply it even within the jurisdiction of the Ninth Circuit (Alaska, Hawaii, California, Washington, Oregon, Idaho, Montana, Nevada and Arizona). However, aliens and attorneys within the jurisdiction of the Ninth Circuit may wish to challenge this refusal in the Court of Appeals.

Most recently, the Court of Appeals for the Seventh Circuit, with jurisdiction over Illinois, Indiana, and Wisconsin, limited the effect of the departure bar on yet a third ground. In Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010), that court held that while the departure bar might be justifiable as a categorical exercise of the BIA’s discretion if the BIA chose to justify it in that way, it could not be justified based on the BIA’s purported lack of jurisdiction because an agency may not contract its own jurisdiction by regulation.

Unless and until the BIA rethinks the theoretical basis for the departure bar, therefore, motions to reopen survive will survive an alien’s departure in the Seventh Circuit as well.

Even Courts of Appeals which are not prepared to go as far as a blanket rejection of the departure bar sometimes take a stricter view when what is at issue is the BIA’s claim that an alien’s already-filed motion to reopen or reconsider was rendered void by DHS’s forcible removal of that alien from the United States.

Because this reading of the regulations allows DHS, a party to the removal proceedings, to preclude a type of challenge to those proceedings by its own unilateral action, it is particularly lacking in intuitive appeal, and it has been rejected by the Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee), in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009), and the Ninth Circuit, in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010).

As Judge Kethledge said in his concurring opinion in Madrigal, quoted in Coyt: “The government forcibly removed Maria Madrigal from the United States, and now claims she abandoned her appeal because she left the country. To state that argument should be to refute it. . . .”

Unlike the decision in Lin, the Ninth Circuit’s decision in Coyt has not been rejected by the BIA under Brand X, so forcible removal does not withdraw a motion to reopen or reconsider in either the Sixth or Ninth Circuits.

It is important to note that these exceptions to the departure bar may not apply equally to all sorts of motions to reopen. Some Courts of Appeals, while not specifically rejecting cases such as William and Madrigal, have held that the logic of those cases can at most only extend to motions to reopen (or reconsider) which are timely filed or fall under one of the exceptions to the filing time limit, as opposed to requests that the BIA sua sponte (that is, on its own motion) reopen a case in which an ordinary motion to reopen would be time-barred.

The Court of Appeals for the Fifth Circuit (with jurisdiction over Texas, Louisiana and Mississippi), in Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2010), and most recently the Court of Appeals for the Second Circuit (with jurisdiction over New York, Connecticut and Vermont), in Zhang v. Holder, – F.3d -, Docket No. 09-2628-ag, 2010 WL 3169292, have drawn this distinction, and have thus so far avoided either accepting or rejecting William and the Madrigal/Coyt line of cases.

In the context of a motion to reopen which is filed within 90 days of the final order of removal or which is said to fall into one of the exceptions to that time limit other than the BIA’s authority to reopen sua sponte, however, such cases as William and Marin-Rodriguez provide arguments worth pursuing even outside the Fourth and Seventh Circuits, so long as one is also outside the Tenth Circuit (which, as noted above, has already upheld the departure bar).

No Court of Appeals, moreover, appears yet to have accepted the BIA’s counterintuitive argument, rejected in Madrigal and Coyt, that forcible removal can “withdraw” a timely filed motion to reopen. Although pursuing post-departure motions in those portions of the United States where a Court of Appeals has not spoken on the issue may require a willingness to bring the issue all the way to the appropriate Court of Appeals, it is an option that respondents in removal proceedings, and their attorneys, should keep firmly in mind.

David A. Isaacson

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