BIA Has Jurisdiction to Hear Motions to Reopen For Petitioners Abroad

Pruidze v. Holder (6th Cir. 2/3/2011)

In a ruling that follows the reasoning of other appellate circuits which have heard the issue, the 6th Circuit Court of Appeals tossed out one of the BIA’s most longstanding rules of jurisdiction.  For at least 50 years, the BIA has had in place what is known as the “departure bar.”  This is a rule the BIA created which essentially cuts off its jurisdiction to hear and consider motions to reopen if the petitioner is outside the United States.  Meaning, if a petitioner has been removed, has departed voluntarily, or is otherwise no longer in the country, the BIA will not consider his motion to reopen.  The rule also deems a pending motion to reopen abandoned if the petitioner leaves the country for any reason.  The rule is an important one with significant consequence because often times, a petitioner may be able to obtain new evidence which may cause his case to been viewed more favorably only after he has been removed (an example would be an asylum applicant who is able to discover evidence of persecution, or who suffers additional persecution, once having been returned to his home country).  With the application of the “departure bar,” the case is practically dead if the petitioner is outside the U.S. because it would have been impossible for him to file a motion to reopen to have the additional evidence reconsidered.  The BIA would simply refuse to hear the motion.

The facts of this case are not as important as the legal reasoning itself, but are worth discussing as backdrop because the scenario is not uncommon.  The petitioner was a lawful permanent resident who had left the country on a trip.  Upon his return, he applied for re-admission as a LPR, but was denied admission because he had been convicted of a state controlled substance crime several years earlier.  He was ordered removed from the country and was in fact removed.  He managed to set aside the controlled substance conviction because he was not represented by counsel when he pled guilty to the charges.  Because his conviction had been set aside, the bars to his readmission were technically no longer in place.  He moved the BIA to reopen his case, but the Board refused to consider his motion because the operation of the “departure bar.”  The petitioner appealed to the 6th Circuit.  The primary question on appeal was whether the Board lacked jurisdiction to consider an alien’s motion to reopen once the alien is no longer in the United States.  To that question, the court agreed with the petitioner and found that the BIA has jurisdiction.

The court came to its decision by virtue of a legislative fact that appears to have been overlooked for more than fifty years.  That is, the BIA has no statutory basis to create such a rule.  As a regulatory body, the BIA has the authority to create rules which implements the scope and purpose of statutes, fill out the contours of statutory language, so to speak.  However, the rules the BIA creates pursuant to its authority must be based upon a legislative framework.  The BIA may not create rules without any basis in statute.  In other words, the BIA is tasked with implementing statutes, not creating them.

 The court found that the BIA’s “departure bar” rule was not tethered to any underlying statute.  There was no legislative basis for the BIA to refuse jurisdiction for motions to reopen for petitioners who are outside the country.  Congress never passed a law with such limitations.  With regard to motions to reopen, Congress never limited them to only persons who were physically present in the U.S.  Congress certainly did not decide that petitioners with motions pending are deemed to have withdrawn the motion if such person leaves the country before the motion has been heard (another common application of the departure bar).  In this instance, the BIA created a rule with no legal backing.  Because there is no basis for which the BIA to promulgate the dreaded “departure bar,” such a regulatory rule is void.

For the reasons above, the court found that the BIA, as the forum tasked with hearing all immigration related appeals, is compelled to exercise its jurisdiction to consider the petitioner’s motion to reopen.

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