The First Circuit ruled last week that the post-departure rule is unconstitutional. The Post-departure bars applies to Motions to Reopen filed after the alien has been deported. Under the pertinent regulations, the motion has to be filed within 90 days of an administrative decision. The BIA has limited the alien’s ability to file such motions if he is outside of the United States under 8 CFR 1003.2(d), or what is known as the post-departure bar.
In Santana v. Holder an alien was convicted of possession of a controlled substance. He was placed in removal proceedings as an aggravated felon. He moved to reopen his criminal proceedings. The immigration judge ordered his removal after DHS denied his request for a continuance. He moved to reopen his removal proceedings after he was removed and the immigration judge denied the motion. The BIA affirmed.
The First Circuit, in ruling that the BIA abused its discretion reasoned that the rule conflicted with statute. The court reasoned that the statute did not have a geographic requirement to file the motion. The court thus reversed the BIA’s decision an remanded the case.
The decision raises the number of circuit ruling the same to seven, including the Eleventh Circuit.