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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 9/30/13

Posted in Judicial Review & Remedies

The weekly scour of administrative law sources occasionally comes up very dry.  Readers are welcome to provide tips and pointers on current events relating to the Administrative Procedure Act (APA), Regulatory Flexibility Act (RFA), Paperwork Reduction Act (PRA), Unfunded Mandates Reform Act (UMRA), and all significant things regulatory related to the federal agencies and their overseers, the Congress, and the courts.  With that prompt, last week the United States Court of Appeals for the First Circuit contributed two more decisions unsurprisingly decrying a regulation long overdue for demolition.  Fortunately, the United States Supreme Court (SCOTUS) begins its “long conference” today, so we may anticipate new subjects to discuss on the First Monday in October.

Barring Departure Bar:  In two more cases, a panel of the First Circuit held that regulations that bar reopening of an immigration case after an alien has departed the United States could not stand against a contrary statutory mandates.  In Perez Santana v. Holder and Bolieiro v. Holder the court held that the post-departure bar conflicts with the unambiguous language of the motion to reopen statute.

The underlying statute provides that an alien may file one motion to reopen within 90 days of a final order of removal and must state new facts that justify reopening.  Some statutory exceptions exist to the deadline and the statute may be subject to equitable tolling (undecided at least in the First Circuit).  The regulation, on the other hand, provides that the Board of Immigration Appeals and the immigration judges have no jurisdiction after the alien departs the United States (whether voluntarily or with help).  Thus, no administrative body has jurisdiction to hear a motion by an departed or removed alien.

The First Circuit’s tally of courts holding the “departure bar” rule invalid in Perez Santana is impressively disturbing:

[T]he validity of the post-departure bar has been the subject of substantial litigation in the federal courts of appeals.  Six of our sister circuits have held that the post-departure bar conflicts with the clear language of the motion to reopen statute.  ….  Another three have struck down the regulation as an impermissible contraction of the agency’s jurisdiction, holding that the agency cannot disclaim authority that Congress has expressly conferred upon it.  ….

As matters currently stand, the rule in every circuit to have addressed the arguments petitioner raises here is that the post-departure bar either conflicts with the motion to reopen statute, or cannot be justified as a jurisdictional limitation.

Although the Department of Justice (DOJ) has included Immigration Courts and the Board of Immigration Appeals: Motions to Reopen and Reconsider; Effect of Departure or Removal in its Spring 2013 Unified Agenda, a proposed rule has not been submitted to the Office of Management and Budget (OMB) and the proposed rule’s projected publication date is already imminent.  DOJ previously granted a petition for rulemaking and this proposed rule is supposed to be the response, but it remains in limbo.