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DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss

Posted in Judicial Review & Remedies

The United States Court of Appeals for the Eleventh Circuit joined several other circuits in holding contrary to statute a Department of Justice (DOJ) regulation divesting the Board of Immigration Appeals (BIA) of jurisdiction when an alien leaves the United States in Lin v. U.S. Attorney General.  The Eleventh Circuit found that the “Departure Bar” regulation (applied either voluntarily or with “help” from the Department of Homeland Security (DHS)) conflicts with a statutory grant of a right to file a motion to reopen removal proceedings.  The “Departure Bar” regulation has been long overdue for updating, as DOJ has promised, but no action has been taken to conform to the statute.

Statute & Regulation.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, codified the Attorney General’s prior regulations that an alien could file one motion to reopen and that the motion to reopen was generally required to be filed within 90 days after the alien is ordered removed from the United States.  IIRIRA also repealed a bar to court jurisdiction based on departure and an automatic stay of removal while a petition for judicial review was pending.  In short, IIRIRA reversed a “stay while litigating” statutory policy to a “go while litigating” statutory policy.  The Attorney General then established an administrative departure bar regulation for motions to reopen in regulations implementing IIRIRA.  See 8 C.F.R. § 1003.2(d).

Precedent Decision.  The crux of the matter is not just the existence of the regulation, but the precedent decision of the BIA in Matter of Armendarez-Mendez, that the departure bar regulation divests it of jurisdiction over a motion filed by an alien who has departed – or been removed – from the United States, which it followed in Lin’s case.  The “departure bar” regulation effectively requires an alien to maintain physical place to keep hope alive.

Circuit Development.  The conflict between the statute and the regulation and decision is not a “new” proposition – the Eleventh Circuit, by its own count, joined the Third, Fourth, Ninth, and Tenth Circuits in finding that the statute superseded the prior regulation and the new regulation conflicted with the statute.  Other variations exist and the regulation continues to be applied in some circuits.  Litigation challenges the regulation, or Armendarez-Mendez, or both, and more.  Lin is not a likely candidate for Supreme Court review even if one accepts that a circuit split exists – the Solicitor General is more likely to concede and press for regulations (see below).

Controversy Over Return.  In a brief, the Solicitor General had advised the Supreme Court that DHS facilitated the return of aliens granted relief by the courts, but that has proven to be cloudy at best.  As pointed out at SCOTUSblog, the Solicitor General informed the Court in April that the partial victory in Nken v. Holder was based on flawed information – DHS had no real program to facilitate return of an alien if a court grants relief from removal (and now claims it does).  Many have called for the Court to vacate the decision in Nken because of this unsupported claim, but the Court has not acted (nor is it likely to do so).

DOJ Unfulfilled.  DOJ has considered removing the departure bar from the regulations, and has publicly stated as much in liaison meetings, but has taken no action at this point.  DOJ has provided no indication that it will conform in the near future in its Unified Agenda, regulatory plan, or retrospective review.  DOJ”s lack of remedial action is troubling and affects many individuals.  The original adoption of the regulation may have been a failure to comprehend the changes made by IIRIRA, but more than 15 years later, and multiple adverse court decisions, DOJ should fix the problem.

Deference to Jurisdictional Decisions:  As an added highlight, an underlying issue percolates through some cases on whether the BIA, or any agency, should be granted deference in determining its own jurisdiction if a statute is ambiguous.  Nathan Sales and Jonathan Adler persuasively argue that an agency’s interpretation of its own jurisdiction should not be granted deference when a statute is ambiguous.  The Eleventh Circuit did not need to reach this important and recurring issue in Lin because it found the statute to be clear.