The Legal Action Center (“LAC”), working with the National Immigration Project of the National Lawyers Guild, has challenged on multiple occasions the “departure bar,” a regulation that precludes noncitizen aliens from filing a motion to reopen or reconsider a removal case by aliens after they have left the United States.
The problem with the “departure bar” is that it deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate the motions to remedy wrongfully executed measures by DHS. It has been a long but successful litigation (in almost all Circuit courts for LAC) which supports statutory right to seek reopening and reconsidering by a noncitizen alien of a removal case no matter where the alien is located.
On October 1, 2012, U.S. Court of Appeals for the Fifth Circuit granted two petitions for review to eliminate the “departure bar” for aliens seeking to reopen and reconsider a removal case. The court held that it is unlawful to bar the noncitizen aliens from filing a motion to reopen (Garcia Carias v. Holder) or a motion to reconsider (Lari v. Holder). The reasoning is simple – the statutory text conferring the right to file a motion to reopen or to reconsider does not place a geographic restriction based on the location of the person applying. In Lari v. Holder, the court struck down the “departure bar” for submission of a motion to reconsider and in Garcia Carias v. Holder, the court struck down the “departure bar”for submission of a motion to reopen in immigration matters when the aliens were outside the US. Relying on Chevron and the plain meaning doctrine along with traditional tools of statutory interpretation, the court held that 8 U.S.C. Sec. 1229a (c)(6)(A) and 8 U.S.C. Sec. 1229a (c)(7)(A) have clear language regarding motions to reopen and reconsider. That statutory language does not distinguish between those aliens who are abroad and those who are in the US.
Garcia Carias v. Holder and Lari v. Holder are very important decisions that allow immigrants to pursue their rights in the US even after they have left or were deported from the US. To date nine circuit courts have rejected the “departure bar.” However, the Board of Immigration Appeals continues to deny certain motions where ICE deported the noncitizen before the motion was decided.
Please see other decisions rejecting the “departure bar” made by other circuits listed in another article.
Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.