Updated 'Departure Bar' Practice Advisory

Beth Werlin and Trina Realmuto, November 20, 2013: "This advisory discusses the so-called “departure bar” regulations. 8 C.F.R. §§ 1003.2(d), and 1003.23(b)(1).  Relying on these regulations, the Board of Immigration Appeals (BIA or Board) and the Immigration Courts have refused to adjudicate motions filed by individuals who have departed the United States.  This advisory addresses the legal background of the departure bar and the arguments adopted by circuit courts that have rejected or upheld the bar.  The advisory also addresses two issues related to the departure bar and litigation for those who have departed: (1) the departure bar regulation governing departure during the pendency of a BIA appeal, 8 C.F.R. § 1003.4, and (2) returning to the United States after a post departure motion (or appeal) is granted."