Court invalidates post-departure motion to reopen bar

Pruidze v. Holder, __ F.3d __ (6th Cir. 2010) (published)

In a case involving brilliant lawyer (ok, I'm biased) and substantial assistance from the American Immigration Council, the Court found that the regulatory bar on motions to reopen filed by aliens who have the U.S. is inconsistent with the statute.  The statutory silence did not leave a gap for the agency to fill.  The silence in the statute indicates an ability of aliens to file post-departure motions.  The post-departure regulation creates a gap; it does not fill one.

No statute gives the BIA the authority to disclaim jurisdiction over post-departure motions.

Congress actually repealed the statutory bar on post-departure motions when it enacted IIRIRA.

The BIA's claim that it lacks jurisdiction over post-departure motions was undercut by Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009).  In Bulnes, the BIA held that it has jurisdiction over post-departure motions filed by aliens challenging in absentia orders based on a claim of lack of notice.