Last week, the U.S. Court of Appeals for the Fifth Circuit rejected the government’s ongoing attempt to bar noncitizens from seeking reopening and reconsideration of their cases from outside the United States. Ruling in two companion cases, the court found that the “departure bar”—a regulation barring noncitizens from pursuing their cases after departure or deportation— is unlawful. In so doing, the court adopted arguments offered by the American Immigration Council's Legal Action Center (LAC) and the National Immigration Project of the National Lawyers Guild (NIPNLG) in an amicus brief to the court. These decisions are an important step toward ensuring that all noncitizens are afforded the opportunity to fully present their cases to an immigration judge and the Board of Immigration Appeals.
In the first of the two cases, Lari v. Holder, the court struck down the departure bar in the context of a motion to reconsider. Mr. Lari was represented by Matthew Hoppock of Dunn and Davison, LLC. The LAC and NIPNLG filed an amicus brief and argued in support of Mr. Lari. In the second case, Garcia Carias v. Holder, the court struck down the departure bar in the context of a motion to reopen. Mr. Garcia Carias was represented by Boston College’s Post-Deportation Human Rights Project and Nixon Peabody LLP.The LAC and NIPNLG have coordinated post-departure litigation nationwide. To date, nine circuit courts have rejected the departure bar. Nonetheless, the Board of Immigration Appeals continues to deny certain motions (including some involving asylum applicants) where ICE deported the noncitizen before the motion was decided. The LAC and NIPNLG are working to prevent the government’s attempted end run around the favorable court decisions.