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5th Circuit: Upholds Post-Departure Bar on Motions to Reopen/Reconsider

In a decision released yesterday, the 5th Circuit upheld the post-departure bar on motions to reopen or reconsider after the non-citizen has left the USA.  /files/0/6/4/7/5/167292-157460/07_60836_CV0_wpd_1.pdf”>revised opinion (Aug. 12, 2009).  The challenged regulation is at 8 C.F.R. § 1003.2(d).

The non-citizen in this case was an LPR who was convicted in 2003 of attempted possession of drugs.  Ovalles, slip op. at 2.  The IJ found that he was not removable as an aggravated felon, but the BIA reversed, finding that his conviction constituted an aggravated felony.   Ovalles, slip op. at 2.  He was removed on April 14, 2004.  Over two years later, the Supreme Court issued its decision in Lopez v. Gonzales, in which it held that a single possession conviction does not constitute an aggravated felony.  127 S.Ct. 625, 631-32 (2006).  On July 27, 2007, Ovalles filed a motion to reconsider and a motion to reopen with the BIA.  Ovalles, slip op. at 2.  The BIA denied both motions by relying on the post-departure bar of 8 C.F.R. § 1003.2(d).  Ovalles, slip op. at 2.

Section 1003.2(d) provides:

“ A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.”

Ovalles first argued the post-departure bar contradicts the clear language of 8 U.S.C. § 1229a(c)(6)(A) and (c)(7)(A) that an “alien may file one motion to reconsider” and “may file one motion to reopen.”  According to the Court, Ovalles urged it to follow the Fourth Circuit’s decision in William v. Gonzales, 499 F.3d 329, 331-34 (4th Cir. 2007), in which the Fourth Circuit “held that the post-departure bar  in section 1003.2(d) was invalid because it conflicted with the clear and unambiguous language of section 1229a(c)(7)(A) of IIRIRA.”  Ovalles, slip op. at 3-4.  After tracing the evolution of the post-departure bar and providing a lengthy discusion of William, including a dissent that the 5th Circuit found persuasive, the 5th Circuit declined to follow William.  Ovalles, slip op. at 9.  The 5th Circuit emphasized that motions to be reconsider must be filed within 30 days of the entry of a final removal order and motions to reopen must be filed within 90 days of entry of a final administrative order of removal.  Ovalles, slip op. at 10.

According to the Court, “Ovalles also contends that the BIA unreasonably interpreted the post-departure bar in section 1003.2(d) as trumping its sua sponte authority to reopen or reconsider cases under 8 C.F.R. § 1003.2(a).”  Ovalles, slip op. at 11.  Ovalles relied on the Eleventh Circuit’s decision in Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314, 1317 (11th Cir. 2006), a decision that the BIA recently relied on for the proposition that a post-departure motion to reopen is proper when the  basis for that motion is that the underlying in absentia removal order was issued without properly notifiying the non-citizen.  (See my discussion of the BIA’s decision.)  

The Fifth Circuit was not persuaded.  First, it found Contreras-Rodriguez distinguishable because the removal order in that case was issued in absentia.   Ovalles, slip op. at 11.  Second, and more importantly, it found that this argument was foreclosed by its decision in Navarro-Miranda v. Gonzales, 330 F.3d 672, 675-76 (5th Cir. 2003).  Citing Navarro-Miranda, the Fifth Circuit in Ovalles explained that the BIA’s sua sponte authority to reopen an earlier decision is overriden by the post-departure bar.   Ovalles, slip op. at 12.

Lastly, Ovalles argued that the post-departure bar does not apply to him because he is no longer subject to exclusion, deportation, or removal proceedings.  Ovalles, slip op. at 13.  He emphasized that the statutory use of the present-tense word “is” meant that the post-departure bar only applies to ongoing proceedings.  Ovalles, slip op. at 13.  The Fifth Circuit disagreed.  “We conclude that the post-departure bar on motions to reconsider and to reopen applies and was intended to apply to aliens who depart the country following the termination of their removal proceedings.”  Ovalles, slip op. at 15.

Overall, this case serves to reinforce the post-departure bar, making efforts to fight faulty removal orders that much more difficult.

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