CA1 on Post-Departure Bar: Perez-Santana v. Holder; Bolieiro v. Holder

"Perez Santana petitions for our review, contending, inter alia, that the post-departure bar conflicts with the clear language of the immigration statute, which grants "[a]n alien" the right to file a single motion to reopen. 8 U.S.C. § 1229a(c)(7).  We agree.  The post-departure bar cannot prevent a noncitizen from invoking his statutory right to file a motion to reopen.  We therefore grant Perez Santana's petition." - Perez Santana v. Holder, Sept. 27, 2013.

"In Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013), which we issue in conjunction with this opinion, we hold that the post-departure bar conflicts with the unambiguous language of the motion to reopen statute. See 8 U.S.C. § 1229a(c)(7)(A).  As a result, the agency's regulation, in the circumstances applicable to this petition for review, cannot preclude Bolieiro from vindicating her statutory right to seek reopening of her removal proceedings.  Although the government seeks to distinguish Bolieiro's case on the basis that her motion was filed outside the ninety-day deadline set forth in the motion to reopen statute, the agency's denials of Perez Santana's and Bolieiro's petitions ultimately rest on the same basic rationale: the post-departure bar prevents the agency from entertaining their motions to reopen.  Under well-settled rules governing agency review, we are unable to substitute an alternative basis for the agency's conclusion and therefore cannot distinguish the two cases on the grounds the government now advances. Thus, our holding in Perez Santana compels us to grant Bolieiro's petition, and we remand for further proceedings before the agency." - Bolieiro v. Holder, Sept. 27, 2013.

[Hats off to Jeffrey B. Rubin, Kathleen M. Gillespie, Trina Realmuto, Beth Werlin and Kerry E. Doyle!]