6th Cir: Post-departure bar isn’t jurisdictional

The simmering debate over the BIA’s power to deny motions to reopen or reconsider filed by people who left the country while their motion was pending or before their motion was filed gained renewed vigor with a recent decision by the U.S. Court of Appeals for the Sixth Circuit. In a published decision the Court held that the BIA does not lack jurisdiction to consider motions to reopen filed by individuals who are not physically present in the USA. Pruidze v. Holder, No. 09-3836, slip op. (6th Cir. Feb. 3, 2011) (Boggs, Moore, and Sutton). Judge Sutton wrote the panel’s decision.

This case involved an LPR who was removed on the basis of a controlled substance offense. Six days after his physical departure from the United States he filed a motion with the state court to reopen his criminal proceedings claiming that he entered his guilty plea without counsel. Just over one month after leaving the USA the state court vacated the conviction that served as the basis for his removal. Pruidze, No. 09-3836, slip op. at 2.

Based on the state court’s action, Pruidze moved the BIA to reopen his removal proceedings. The BIA, however, denied his motion “reasoning that, because Pruidze was no longer in the United States, it did not have ‘jurisdiction’ to hear Pruidze’s motion.” Pruidze, No. 09-3836, slip op. at 2. “The Board relied on Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008), which held that the ‘departure bar,’ 8 C.F.R. § 1003.2(d), divested the Board of ‘jurisdiction’ to entertain motions to reopen filed by aliens who are abroad.” Pruidze, No. 09-3836, slip op. at 2.

This regulatory bar—often described as the “post-departure bar” and discussed previously on this blog—also prevents the BIA from considering motions to reopen if the noncitizen leaves the USA while the motion is pending (considered “withdrawal” of the motion). This regulation also applies to motions to reconsider. A similar regulation exists for motions to reopen or reconsider submitted to an Immigration Judge. 8 CFR 1003.23(d).

The post-departure bar has long been problematic for noncitizens facing removal under the crime-based grounds because criminal post-conviction relief proceedings (e.g., motions to vacate, habeas proceedings, or a host of similar state procedures) frequently move at a snail’s pace. Even viable claims that a criminal conviction should be set aside lose their urgency when the benefit derived from going through that process—the elimination of the basis for removal—becomes impossible upon leaving the United States.

As a result, immigration advocates have been challenging the post-departure bar for some time with varying degrees of success. There currently exists a circuit split regarding several aspects of the bar: can the Attorney General even enact such a regulation? Is the BIA’s interpretation of the regulation as stripping it of jurisdiction to hear claims made by any person who is not physically present—including individuals who were forcibly removed—correct?

Importantly, the current regulatory post-departure bar has a long history in administrative regulations and the INA. That history, however, arguably suggests its continued existence is inappropriate.

Since 1940 the BIA has been authorized by regulation to consider motions to reopen or reconsider. See 5 Fed. Reg. 3502, 3504 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.9). For much of that period the governing regulation prohibited an IJ or the BIA from considering motions to reopen or reconsider filed by a person subject to deportation proceedings “subsequent to his departure from the United States.” 23 Fed. Reg. 9115, 9118 (Nov. 26, 1958) (codified at 8 C.F.R. § 3.2 (1959)). The same regulation also treated any departure from the United States while a motion was pending as “a withdrawal of such motion.” Id.

The INA contained a similar post-departure bar from 1962 to 1996 regarding judicial review of deportation and exclusion decisions. See Act of September 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651 (codified at 8 U.S.C. § 1105a(c) (1964)); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 306(b), 110 Stat. 3009-612.

As part of far-reaching reforms to immigration law in 1996 Congress repealed the statutory post-departure bar. Today, the INA expressly provides an alien the right to file one motion to reopen and one motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(A) (regarding motions to reconsider); § 1229a(c)(7)(A) (regarding motions to reopen). The statute makes no reference to the movant’s geographical location. The only limitations included in the current statutory provisions governing motions to reopen or reconsider concern time, number, and content.

A motion to reopen must “state new facts” and “be filed within 90 days of the date of entry of a final administrative order of removal” and a motion to reconsider must “specify the errors of fact or law in the previous order” and “must be filed within 30 days of the date of entry of a final administrative order of removal.” See8 U.S.C. §§ 1229a(c)(6), 1229a(c)(7).

The administrative regulations enacted in 1997 and currently in effect impose the same time, number, and content limitations on motions to reopen and reconsider, as does the post-1996 statute. The regulations diverge from the statute in one significant regard: the regulations retain the post-departure bar. See 8 C.F.R. 3.2(d) (recodified at 8 C.F.R. 1003.2(d)); 62 Fed. Reg. 10312, 10331 (Mar. 6, 1997).

In Pruidze, the Sixth Circuit expressly held that the post-departure bar does not strip the BIA of jurisdiction to hear motions to reopen solely because the movant is not physically present: “Nothing in the statutory scheme suggests that the Board lacks jurisdiction…to issue decisions that affect the legal rights of aliens abroad.” Pruidze, No. 09-3836, slip op. at 7. Indeed, the Sixth Circuit explained that the BIA lacks the power to “disclaim[] jurisdiction to entertain a motion to reopen filed by aliens who have left the country” given that the INA explicitly provides noncitizens with this right subject only to time and number limitations. Pruidze, No. 09-3836, slip op. at 6.

The BIA may, the Sixth Circuit explained, deny Pruidze’s motion based on the time and number limitations imposed by the INA and, of course, it may deny his motion on the merits, but it may not claim that it lacks jurisdiction to hear the motion. We will see how this decision affects the ongoing post-departure bar controversy making its way through the courts.