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Keywords

motion

motionwillvisanaturalization

Related Cases

Toor v. Lynch

Facts

Jasbir Singh Toor, a native and citizen of India, was admitted to the U.S. as a lawful permanent resident in 2003. In 2007, the Department of Homeland Security initiated removal proceedings against him for alleged fraud and lack of valid entry documents. An Immigration Judge ordered him removed in 2009 after he failed to apply for relief. Toor had already departed the U.S. and arrived in India before the removal order was issued. He subsequently filed a motion to reopen or reconsider, which was denied based on the regulatory departure bar.

Jasbir Singh Toor (Petitioner), a native and citizen of India, was admitted to the United States as a lawful permanent resident on a conditional basis in 2003. In 2005, the former Immigration and Naturalization Service (INS) approved his petition to remove the conditions on his residence. On August 23, 2007, the Department of Homeland Security (DHS) initiated removal proceedings against Petitioner, charging that he was removable for fraudulently or willfully misrepresenting a material fact on a visa petition in violation of INA 212(a)(6)(C)(I), and for lacking a valid entry document at the time of his application for admission in violation of INA 212(a)(7)(A)(i)(I).

Issue

Whether the regulatory departure bar precludes an alien from filing motions to reopen or reconsider removal proceedings after departing the United States.

We have not, however, addressed whether the regulatory departure bar may be validly applied to a noncitizen who voluntarily departs the United States during removal proceedings.

Rule

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides noncitizens a statutory right to file one motion to reconsider and one motion to reopen removal proceedings, which is not limited by their departure from the U.S.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which inter alia provides all noncitizens a statutory guarantee that they may file 'one motion to reconsider a decision that the alien is removable from the United States,' 8 U.S.C. 1229a(c)(6)(A), and 'one motion to reopen proceedings,' 8 U.S.C. 1229a(c)(7)(A).

Analysis

The court analyzed the relationship between the regulatory departure bar and the statutory rights provided by IIRIRA. It concluded that the regulatory departure bar, which predated IIRIRA, could not limit the statutory rights granted by Congress. The court emphasized that the text of IIRIRA clearly allows for motions to reopen and reconsider regardless of whether the individual has departed the U.S.

Here, we hold that Congress has directly spoken to the precise question at issue; the text of IIRIRA makes clear that the statutory right to file a motion to reopen and a motion to reconsider is not limited by whether the individual has departed the United States.

Conclusion

The Ninth Circuit held that the regulatory departure bar is invalid as it conflicts with the statutory rights provided by IIRIRA. The court granted the petition for review and remanded the case for further proceedings.

The regulatory departure bar, therefore, fails at the first step of Chevron.

Who won?

Jasbir Singh Toor prevailed in the case because the court found that the regulatory departure bar could not restrict his statutory rights under IIRIRA.

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