(B)  Motions to Reopen.  The BIA takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion.[472] The Fifth Circuit agrees.[473]  The Ninth[474] and Eleventh[475] Circuits, however, have found these regulations inapplicable in certain situations. Pending cases in other circuits are challenging the regulations, both as applied and on their face.

 

[472]  8 C.F.R. § § 1003.2(d), 1003.23(b)(1),

[473] Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (upholding BIA’s reasoning that 8 C.F.R. § 3.2(d) negates the BIA’s sua sponte authority to reopen and reconsider a case at any time).

[474] Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 C.F.R. § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, s/he is no longer subject to proceedings, so therefore because the petitioner was removed to China and then filed his motion to reopen, his proceedings were completed and 8 CFR § 3.23(b)(1) was inapplicable); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), the court found that where a person’s conviction is vacated, s/he has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) ( 8 C.F.R. § 1003.2(d) found inapplicable to a motion to reopen to rescind an in absentia order where the person had departed the United States before the commencement of proceedings).

[475] Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA §   40(b)(5)(C) and 8 C.F.R. § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States).

First Circuit

POST CON RELIEF - EFFECTIVE ORDER - DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. 1105a(c) (1994) (repealed 1996) ("An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.") did not invalidate the regulation, 8 C.F.R. 1003.23(b)(1) ("A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.").

Third Circuit

POST CON RELIEF " REMOVAL PROCEEDINGS " RETURN TO THE UNITED STATES
Orabi v. Attorney General of the U.S., 738 F.3d 535, 528 (3d Cir. Jan. 2, 2014) (even after deportation, the Government was prepared to return noncitizen to the United States under certain circumstances pursuant to ICE regulations); see ICE Policy, 11061.1(2) (Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings.); see also 8 U.S.C. 1229a(b)(2)(A) (requiring an immigrant's presence at a removal hearing absent the parties' consent or a telephonic or video conference).

Fourth Circuit

MOTIONS TO REOPEN - DEPORTED NONCITIZENS
William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. 1003.2(d), containing the post-departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid.").

Seventh Circuit

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

Other

POST-DEPARTURE MOTIONS TO REOPEN
Post-Deportation Human Rights Project practice advisory, "Filing Post-Departure Motions to Reopen or Reconsider," at www.bc.edu/postdeportation. The advisory provides guidance on filing MTRs on behalf of clients who have been ordered deported/excluded/removed and are seeking reopening or reconsideration from outside the United States.