Tenth Circuit, En Banc, Rejects Post-Departure Bar: Contreras-Bocanegra v. Holder

"We granted en banc rehearing of this case to determine whether the so-called post-departure bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Nationality Act (“INA”). The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals (“Board”) contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text. In Rosillo-Puga v. Holder, 580 F.3d 1147, 1156 (10th Cir. 2009), a divided panel of this court upheld the post-departure bar as an authorized exercise of the Attorney General’s rulemaking authority. The panel in the case presently before us considered itself bound by that precedent. After Rosillo-Puga was decided, the tide turned, and six circuits have consecutively invalidated the regulation. Rather than stand alone in upholding the post-departure bar, we choose to overturn Rosillo-Puga and its progeny. We hold that the subject regulation impermissibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7)." Contreras-Bocanegra v. Holder, Jan. 30, 2012.  [Hats off to Edward L. Carter, (J. Christopher Keen, with him on the briefs) Keen Law Offices, Orem, Utah, and Trina A. Realmuto, National Immigration Project, Boston, Massachusetts, (Beth Werlin and Mary Kenney, American Immigration Council, Washington, D.C., with her on the briefs) for amici curiae.!]