11th Circuit Decision - Motions to Reopen – Immigration Court – Appeals - Kyndra L Mulder, Esquire
When the Immigration Court enters a final order of removal against a person that person may file a motion to reopen or reconsider with the court. However, until recently, if the person was removed from the United States or left the United States pursuant to voluntary departure, the court had no jurisdiction to consider a motion.
In Lin v. U.S. Attorney General, the Eleventh Circuit Court reversed a prior decision of the Board of Immigration Appeals (Board) wherein the Board held that a person cannot file a motion to reopen if the person has departed the United States. The statute sited is, 8 C.F.R. 1003.2(d).The Eleventh Circuit held that 8 C.F.R. 1003.2(d) is in direct conflict with Section 240(c)(7)(A) of the Immigration and Nationality Act, (INA).
In plain English; this decision has broad implications for the non-United States citizen who departs the United States based on a removal order from the immigration court.
The Lin decision supports the filing of a motion to reopen by a non-United States citizen even though s/he has departed the United States.
Any person who has previously filed a motion to reopen from outside the United States, and it was denied for that reason, may have a basis for refilling the motion based on the Lin decision. Persons deported since the decision may now file a motion to reopen from outside the United States.