A Gate Forever Closed? Retiring Immigration Law’s Post-Departure Bar

November 1, 2012

Immigration law’s “post-departure bar” destroys the jurisdiction of either an immigration judge or the Board of Immigration Appeals to hear a motion to reopen or reconsider filed by an alien who is no longer physically within the country. This Note examines the current conflict between the federal circuits regarding the post-departure bar and why the circuits that have decided to strike down the bar in the cases before them have ruled in line with certain trends present in recent Supreme Court immigration cases.

Conflict between the circuits has arisen because the governing statute, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, was enacted without reference to the bar, which had been in place before the Act’s passage. In that statutory silence, the Attorney General promulgated regulations intended to reestablish the bar. In recent years, circuits have taken various positions on the bar’s validity. Many have struck the bar down on the basis of either Chevron deference or the grounds outlined in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, which bars an agency from limiting its jurisdiction in certain situations. Still, other circuits have upheld the bar by using Chevron to conclude that deference to the agency is proper.

This Note suggests that the circuits that have struck down the bar are in line with prevailing trends in recent immigration cases decided by the Supreme Court. Further, this Note argues that it does not matter whether a circuit court relies upon Chevron or Union Pacific to strike down the bar, as the use of either precedent to attack the bar serves these trends, and is consistent with the overall direction of American immigration law.

November 2012

No. 2