The U.S. Court of Appeals for the Ninth Circuit recently held that the post-departure bar does not preclude filing a motion to reopen by someone who has been ordered removed and actually removed from the country. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. 4701 (Apr. 7, 2011) (Wallace, Thomas, and Mills). Judge Thomas wrote an opinion joined by Judge Mills; Judge Wallace dissented.
This case involved an LPR who was convicted in 1984 of transporting aliens in violation of 8 U.S.C. § 1324(a)(2) and in 2007 of possession of a controlled substance in violation of California Health and Safety Code § 11377(a). The IJ found that Reyes-Torres’s transporting conviction constituted an aggravated felony and the possession conviction constituted a controlled substance offense. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4705.
After losing his appeal to the BIA, Reyes-Torres was ordered removed and actually removed. Nineteen days later a California state court granted his motion to withdraw the controlled substance plea “on the ground that Reyes-Torres was not adequately informed of the immigration consequences of the plea.” Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. 4706. Five days after that he filed a motion to reconsider and reopen with the BIA. The Board dismissed his motion based on the post-departure bar in 8 C.F.R. § 1003.2(d).
This regulatory bar—often described as the “post-departure bar” and discussed previously on this blog—also prevents the BIA from considering motions to reopen if the noncitizen leaves the USA while the motion is pending (considered “withdrawal” of the motion). This regulation also applies to motions to reconsider. A similar regulation exists for motions to reopen or reconsider submitted to an Immigration Judge. 8 CFR 1003.23(d).
Though there was long a statutory post-departure bar Congress repealed that provision in the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) of 1996. Today, the INA expressly provides an alien the right to file one motion to reopen and one motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(A) (regarding motions to reconsider); § 1229a(c)(7)(A) (regarding motions to reopen). The statute makes no reference to the movant’s geographical location. The only limitations included in the current statutory provisions governing motions to reopen or reconsider concern time, number, and content. In contrast, the administrative regulations retain the post-departure bar. See 8 C.F.R. 3.2(d) (recodified at 8 C.F.R. 1003.2(d)); 62 Fed. Reg. 10312, 10331 (Mar. 6, 1997).
In Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), the Ninth Circuit held that the post-departure bar did not preclude the BIA from considering a motion to reopen or reconsider where the movant filed the motion while in the USA but was removed while it was pending.
Here the government tried to distinguish Reyes-Torres’s plight because he was removed prior to filing the motion. The Ninth Circuit disagreed with the government’s position: “There is no principled legal distinction to be drawn between Coyt and this case. The only factual difference between the cases is that Coyt filed his motion to reopen prior to his involuntary departure. Reyes-Torres did not file his motion to reopen and reconsider until after he was removed. This distinction is immaterial in light of Congress’s clear intent in passing IIRIRA.” Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4708-09. As such, that Reyes-Torres was forcibly removed from the country does not preclude him from filing a motion to reconsider or reopen. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4709.
The Ninth Circuit then turned to the application of the aggravated felony ground of removal to Reyes-Torres. The aggravated felony provision, the court explained, does not apply to convictions entered prior to the date the aggravated felony provision was enacted, November 18, 1988: “In Ledezma-Garcia, we held that 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions that occurred prior to the enactment of the Anti-Drug Abuse Act of 1988.” Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4709. Consequently, the IJ was incorrect to find that Reyes-Torres’s 1984 conviction constitutes an aggravated felony. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4709.
As a final argument the government claimed that Reyes-Torres was independently removable based on the 2007 controlled substance offense despite the state court having vacated this conviction. According to the government this should still count as a conviction because the state court vacated it solely for immigration purposes. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4710. The Ninth Circuit explained that it is the government’s burden to prove that this is the reason for the vacation and the BIA must make this determination before the circuit court can address it. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4710. Neither of those events transpired here.
In an interesting footnote, the Ninth Circuit distinguished between Reyes-Torres’s concession to the fact of conviction versus his concession to the facts underlying that conviction. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4709 n.1. Here Reyes-Torres conceded to the conviction because he had in fact been convicted of the possession offense. He did not, the court explained, concede to having done the acts that resulted in that conviction. Reyes-Torres v. Holder, No. 08-74452, 09-70214, slip op. at 4709 n.1.
Jacqueline Brown Scott has also discussed this case on her blog New 9th Circuit and BIA Immigration Cases.