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Ninth Circuit invalidates "regulatory departure bar"

Last month, the Ninth Circuit held in Toor v. Lynch that a noncitizen can still move to reopen or reconsider his or her removal proceedings after departing the United States voluntarily while the proceedings are still pending.

Previous to this decision, whether a noncitizen was still permitted to file a motion to reopen or reconsider after departing the United States voluntarily was in question. The Federal Regulations at sections 1003.23(b)(1) and 1003.2(d) prohibited it directly (called the "regulatory departure bar"), yet the subsequent federal statute under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) allowed one to file a motion to reopen/reconsider after departing the United States without specifying when and how the departure was made.

The Ninth Circuit now clarifies that the IIRIRA does supersede the regulatory departure bar, allowing those who have voluntarily departed the United States during their removal proceedings to move to reopen or reconsider their cases.

This is very good news for individuals who were ordered removed for "abandoning" their immigration cases by departing the United States. Although you may now be able to move to reopen or reconsider the removal order, a motion to reopen/reconsider must still be timely and conform to very specific rules. It is a good idea to contact an immigration attorney if you have any questions.

Bean + Lloyd is an immigration law office in Oakland, California emphasizing family-based immigration, citizenship, removal defense and deferred action.

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