In a decision released yesterday, the 5th Circuit upheld the post-departure bar on motions to reopen or reconsider after the non-citizen has left the USA. /files/0/6/4/7/5/167292-157460/07_60836_CV0_wpd_1.pdf”>revised opinion (Aug. 12, 2009). The challenged regulation is at 8 C.F.R. § 1003.2(d).The non-citizen in this case was an LPR who was convicted in 2003 of attempted possession of drugs. Ovalles, slip op. at 2.

Though less prominent, Mata is of significance to anyone involved in immigration law.This case arises from a time limit on when individuals in removal proceedings must file a motion to reopen. A regulation, 8 C.F.R. § 1003.2(c)(2), clearly establishes that, in most circumstances, respondents must do so within 90 days of a final order of removal being entered. Mata gauges just how rigid is this deadline.

Five days after that he filed a motion to reconsider and reopen with the BIA. The Board dismissed his motion based on the post-departure bar in 8 C.F.R. § 1003.2(d).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.

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.

We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA's decision not to reopen Ali's immigration proceedings sua sponte.Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006)This case asserts that once the BIA decides against reopening a case sua sponte (on its own accord), then it cannot be appeal to a higher court. The only way to overturn a discretionary decision from the BIA is to file a motion to reopen with the BIA.

The Board also has the authority to reopen the removal proceedings sua sponte at any time. 8 C.F.R. §1003.2(a). An immigration judge ordered Noel Reyes Mata, a Mexican citizen, removed after Mata was convicted of assault in Texas. Mata’s attorney filed a notice of appeal with the Board, but never submitted a brief, so the Board dismissed the appeal.

Matos-Santana, No. 10-2373, slip op. at 4-5.The BIA denied a motion to reopen asserting this for two reasons: because, it claimed, it lacks jurisdiction to consider his motion because he filed his motion after departing the United States (the post-departure bar) and because it was untimely (INA § 240(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2) provide up to 90 days for filing a motion to reopen). Matos-Santana, No. 10-2373, slip op. at 5.