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Appeals Court Sets Precedent in Post Departure Bar Ruling on Immigration Case

Published on Wed, Aug 10, 2011

On August 3, 2011, the Third Circuit Court of Appeals set a new legal precedent when it issued its opinion in Prestol Espinal v. Attorney General, No. 10-1473 (2011) granting the client of San Francisco immigration lawyer Jacqueline Brown Scott petition for review. The Court invalidated the so-called "post-departure bar" on motions to reopen and motions to reconsider, finding that the regulation prohibiting such motions conflicts with the clear language of the statute. The Board of Immigration Appeals (BIA) had denied the timely motion by Brown Scott's client to reconsider on jurisdictional grounds. The Third Circuit reversed and remanded the case to the BIA so that it could consider the legal arguments presented in the motion to reconsider.

Federal immigration law gives noncitizens the right to file motions to submit new evidence or arguments after their removal orders become final. Nevertheless, the BIA has maintained for decades that it cannot consider such motions if a foreign national is outside the United States, even if the government, the other party in the litigation, is the cause of removal of the foreign national.

The government has an incentive to remove noncitizens from the country before they have an opportunity to file such motions. "In my client's case, this is exactly what happened-the government forcibly removed him during the 30-day period in which he was permitted to file his motion to reconsider," explains Brown Scott.

Brown Scott says this new ruling means people who are in immigration court proceedings in the jurisdiction of the Third Circuit will not be denied their statutory right to file one motion to reopen or reconsider, and submit new evidence or advance new legal arguments, even if the government has already removed them from the country. The fact that they may no longer be in the United States is irrelevant

The Court found that the post-departure bar conflicts with the statutory language and Congress's clear intent to allow such motions. It explained, "the plain text of the statute provides each alien with the right to file one motion to reopen and one motion to reconsider, provides time periods during which an alien is entitled to do so, and makes no exception for aliens who are no longer in this country."

In doing so, the Third Circuit joined six other circuits, including the Ninth, in rejecting the regulation.

Mr. Prestol Espinal represented himself in immigration court, where he sought relief from removal under the Convention Against Torture. Brown Scott provided him with pro bono representation for his appeal. The American Immigration Council and the National Lawyers Guild were amici curiae in this case.

Published in the San Francisco Chronicle | Read Article