The First Circuit in Perez Santana v. Holder rejected the "post-departure bar" to motions to reopen immigration proceedings. The phrase “post-departure bar” refers to an immigration regulation that precludes a noncitizen from filing a motion to reopen their proceedings once they have been deported. The problem often arises in cases where the person files their motion to reopen while they are still in the U.S., but then gets deported before the motion to reopen is decided. Once the person is deported, the government treats the motion as if it is "withdrawn" and rejects it.
In Perez Santana, DHS ordered the petitioner, a lawful permanent resident, removed after he pled guilty in state court to possession of a controlled substance with intent to distribute. Perez Santana was able to vacate his criminal conviction, but by the time he filed his motion to reopen he had already been removed to the Dominican Republic . The Board of Immigration Appeals (BIA) denied the motion, invoking the "post-departure bar."
The First Circuit Court of Appeals granted Petitioner's petition for review, holding that the “post-departure bar” cannot prevent a noncitzen from invoking his statutory right to file a motion to reopen. Importantly, the statute allowing motions to reopen does not require a physical presence or indicate a geographic limitation in its general provisions.
In a companion case, Bolieiro v. Holder, the Court held that the “post-departure bar” could not prevent a noncitizen from invoking her statutory right to file a motion to reopen, even where the motion was filed outside the ninety-day deadline set forth in the statute.