Coyt v. Holder, 593 F.3d 902 (9th Cir. Jan. 20, 2010) (involuntary physical removal of petitioner by the United States did result in automatic withdrawal of motion to reopen; 8 C.F.R. 1003.2(d) is ultra vires to the INA as applied to noncitizens removed from the U.S. by the DHS).

The court reasoned that the regulation "would completely eviscerate the statutory right to reopen provided by Congress if the agency deems a motion to reopen constructively withdrawn whenever the government physically removes the petitioner while his motion is pending." The court declined to decide whether the regulation would be valid if the person departed voluntarily or was not "physically removed." (It is not clear what the court meant by "physically removed" and what constitutes an "involuntary removal," but in this case, the petitioner had filed a motion to stay removal with the BIA, but he was removed before the BIA had ruled on it.) Further, the courts reasoning should apply to permit the adjudication of a motion to reopen filed after a person is deported. The Ninth Circuit is the third court to address the validity of the regulation vis--vis the motion to reopen statute. See also William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (striking down regulation); Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (upholding regulation). The BIA also has weighed in, affirming the application of the departure bar in Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008). The American Immigration Council and the National Immigration Project have been working with petitioners to challenge the validity of the regulation. We recently filed a brief in the Ninth Circuit in a case which may address some of the unresolved issues in Martinez Coyt and also are litigating this issue in the Sixth Circuit. Please contact
clearinghouse@immcouncil.org if you have a case raising this issue.