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Eleventh Circuit – Board Must Consider a Motion to Re-Open filed by Deported Alien. - Mulder Law

Posted by attorney Kyndra Mulder

The Eleventh Circuit – Board Must Consider a Motion to Re-Open filed by Deported Individual. - Mulder Law Office, P.A.

The Attorney General’s decision to bar the reopening of proceedings from outside the United States has been overturned by the court. This decision provides hope to families separated as a result of a lower court decision.

The Attorney General regulation banned a person from filing a motion to reopen removal proceeding if they were physically outside of the United States. Any pending motion was considered abandoned once the person was removed from the United States. The Attorney General policy left little or no recourse to the alien ordered removed.

The Eleventh Circuit Court of Appeals - on May 23, 2012 – overruled the Attorney General decision and held that an alien may petition to reopen his removal proceedings even if he is outside the United States.

In Lin v. U.S. Att’y Gen., 2012 WL 1860686 (11th Cir. 2012); The Petitioner (alien) entered the United States without inspection and applied for asylum. His asylum application was denied and he was placed in removal proceedings. The Immigration Judge ordered his removal. The Petitioner petitioned the Board of Immigration Appeals to reopen his removal proceedings based on changed country conditions. He applied for a stay of removal while his case was pending. The stay was denied and he was deported. The Board dismissed the petitioner’s case finding that he had abandoned his Motion to Re-open when he was removed from the United States.

The Eleventh Circuit agreed to review the case. The opinion of the court was that the Attorney General’s regulation to deny a Motion to Re-open if the alien is no longer in the United States contradicts the law. The court cited the clear meaning of the law; an alien is allowed to apply for one Motion to Reopen regardless of their physical presence. The court granted Lin’s petition for review and remanded the case to the Board for further proceedings.

This decision provides no support to the alien who enters without inspection or whose asylum petition is denied. The value of the decision lies with the Motion to Re-open. The decision provides the possibility of relief to the alien deported and to family members remaining in the United States and separated from a loved one.

This article is provided by the Mulder Law Office and is for informational purposes only. It is not intended for legal advise or to be used as a legal document when preparing an appeal or for citation purposes and does not represent an official publication. For further information and legal representation contact the Mulder Law Office at (904) 296-7702,, Fax: (904) 281-9108

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