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the government treats the motion as if it is "withdrawn" and rejects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.
