I just received awesome news from a fellow immigration practitioner that the First Circuit has rejected the “Departure Bar” to motions to reopen proceedings in a new decision called Perez Santana v. Holder. The phrase “Departure Bar” refers to several immigration regulations that say, even though the statute grants an immigrant the right to file one motion to reopen their immigration proceedings, once they have been deported they no longer have that right. The problem often arises in cases where the person files their motion to reopen while they’re here but they get deported while it’s pending. That’s what happened in Perez Santana (we litigated the Seventh Circuit case, Marin-Rodriguez v. Holder, and Fifth Circuit case, Lari v. Holder, both of which involved motions that were filed before the person was deported). Once the person is deported, the government treats the motion as if it is “withdrawn” and rejects it. One problem with this is that the Department of Homeland Security then has an incentive to deport the person faster so that their motion to reopen or reconsider isn’t adjudicated. The deeper problem is that the regulation takes away a right granted to immigrants by Congress, and every court to have ruled on it has now rejected it.
The only court left is the Eighth Circuit, which has still not addressed the Departure Bar. These recent decisions raise an interesting question: why does the Department of Justice continue to defend the regulation? The Attorney General could conduct rule-making and promulgate a new regulation that doesn’t strip immigrants of the rights granted to them by Congress. But instead of making the regulations line up with the Statute, the Attorney General continues to vigorously defend this issue in the Circuit Courts. It’s puzzling to say the least.