"We are asked to decide whether the “departure bar” regulation—stating that the Board of Immigration Appeals (“BIA”) may not entertain a motion to reopen filed by or on behalf of a person who has departed the United States—impermissibly conflicts with the Immigration and Nationality Act’s provision permitting an alien to file one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(d). We join the Third, Fourth, Ninth, and Tenth Circuits in finding that it does. 1 See Contreras-Bocanegra v. Holder, 2012 WL 255879 (10th Cir. 2012) (en banc); Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007).
1 The Sixth and Seventh Circuits, when presented with the question we confront in this case, addressed the validity of the BIA’s interpretation of the departure bar. Relying on Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009), they found it impermissible for the BIA to treat the departure bar as divesting the agency of jurisdiction. See Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010)." - Lin v. Atty. Gen., May 23, 2012.
Hats off to Ted Cox and his associate, Ana Lucia Alvarado, who argued the case before the 11th Circuit!
Analysis by Lee Beck here.