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jurisdictionhearingmotionasylumdeportation
jurisdictionhearingmotionasylumdeportation

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Toora v. Holder

Facts

Toora is a native of India who illegally entered the United States in February 1995. He was served with an Order to Show Cause for deportation and received a Notice to Appear for a hearing scheduled for April 3, 1995. After posting bond, Toora left the United States on March 23, 1995, without notifying the INS. The IJ ordered Toora deported in absentia on April 3, 1995, after he failed to appear. Toora later re-entered the U.S. under a different name and applied for asylum, which was granted without knowledge of his prior deportation proceedings. In 2007, DHS sought to rescind his asylum grant, leading Toora to file a motion to reopen the April 1995 deportation order.

Toora is a native of India who illegally entered the United States in February 1995. He was served with an Order to Show Cause for deportation and received a Notice to Appear for a hearing scheduled for April 3, 1995. After posting bond, Toora left the United States on March 23, 1995, without notifying the INS. The IJ ordered Toora deported in absentia on April 3, 1995, after he failed to appear. Toora later re-entered the U.S. under a different name and applied for asylum, which was granted without knowledge of his prior deportation proceedings. In 2007, DHS sought to rescind his asylum grant, leading Toora to file a motion to reopen the April 1995 deportation order.

Issue

Whether the departure bar, 8 C.F.R. 1003.23(b)(1), applies to an alien who departs the United States after receiving notice of his deportation proceeding, but before the proceeding is completed and the IJ enters a deportation order.

Whether the departure bar, 8 C.F.R. 1003.23(b)(1), applies to an alien who departs the United States after receiving notice of his deportation proceeding, but before the proceeding is completed and the IJ enters a deportation order.

Rule

The departure bar applies to an alien who is the subject of removal proceedings and departs the United States after the initiation of those proceedings.

The departure bar applies to an alien who is the subject of removal proceedings and departs the United States after the initiation of those proceedings.

Analysis

The court determined that the departure bar clearly stated that it applied to an alien who departed after the initiation of the deportation proceedings. The BIA's interpretation, which suggested the bar was inapplicable in this case, was not supported by any authority or rational analysis. Since Toora departed after the initiation of removal proceedings, the IJ lacked jurisdiction to consider his motion to reopen.

The court determined that the departure bar clearly stated that it applied to an alien who departed after the initiation of the deportation proceedings. The BIA's interpretation, which suggested the bar was inapplicable in this case, was not supported by any authority or rational analysis. Since Toora departed after the initiation of removal proceedings, the IJ lacked jurisdiction to consider his motion to reopen.

Conclusion

The court granted the petition for review and remanded the case to the BIA to dismiss the motion to reopen for the IJ's lack of jurisdiction.

The court granted the petition for review and remanded the case to the BIA to dismiss the motion to reopen for the IJ's lack of jurisdiction.

Who won?

The petitioner, Dhanvir Toora, prevailed because the court found that the departure bar applied to his case, which divested the IJ of jurisdiction to hear his motion to reopen.

The petitioner, Dhanvir Toora, prevailed because the court found that the departure bar applied to his case, which divested the IJ of jurisdiction to hear his motion to reopen.

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