This afternoon we received a helpful decision from the Eleventh Circuit in a long-pending appeal about post-departure motions to reopen. Because this has been a topic of much litigation lately (and affects many people who have been deported and would be interested in returning if possible) I thought I would share.
The case is Linton v. Holder. In it, the Eleventh Circuit addresses a finding by the BIA that a person who has been physically deported can no longer apply to reopen his case to apply for asylum. The decision responds to a finding from the BIA that once a person is physically removed from the United States, any pending claim they have for asylum or withholding of removal becomes moot because presence in the United States is a prerequisite for those forms of relief.
The petitioner here was deported in 2011, but before he was physically deported he filed a motion to reopen his case to seek asylum. His motion sat in the Immigration Court’s file, unadjudicated for several years. After the petitioner filed a second motion to reopen years later the BIA denied both motions. Relevant here, the BIA said the 2011 motion the petitioner had filed seeking asylum (days before he was deported) was moot because once the petitioner was outside the United States he was no longer eligible.
Thankfully the Eleventh Circuit saw through this ruse and reversed the BIA. It said the “departure bar” no longer applies in the Eleventh Circuit, and that as long as there was no “departure bar” to filing a motion to reopen, there was no procedural impediment to basing a motion to reopen from outside the United States on a new claim for asylum or withholding of removal.
I wish the Eleventh Circuit had spoken to the implication of the BIA’s holding. If all ICE needs to do to moot someone’s asylum claim is physically deport them, that gives a huge incentive to ICE to unlawfully deport people when their asylum claims are pending. And it turns the Supreme Court’s decision in Nken v. Holder (which says a person who is physically deported while their appeal is pending will get to return to the United States if they win) on its head. If physically deporting someone with an asylum appeal pending moots their appeal, then the Attorney General’s position in Nken (that deporting someone while their appeal is pending doesn’t prejudice them because they can always come back if they win) is specious. But we’ll take the win nevertheless.