Toor v. Lynch

The Illegal Immigration Reform and Immigrant Responsibility Act affords noncitizens a statutory guarantee to file one motion reconsidering a decision that an alien was removable, making the departure bars invalid.

Jasbir Singh Toor, a citizen and native to India, was admitted to the United States as a lawful permanent resident. In 2007, the Department of Homeland Secuirty (DHS) initiated removal proceedings against Toor for two charges: (1) fraudulent or willful misrepresentation of material facts on a visa petition; and (2) lacking valid entry documents at the time of his application for admission – both violating federal law. The Immigration Judge (“IJ”) sustained both charges but gave Toor one month to apply for all forms of relief from removal. Toor failed to apply, and the IJ consequently waived and abandoned all requests for relief, ordering Toor be removed to India. Toor filed a timely motion to reopen or reconsider his removal proceedings alleging the IJ lacked authority to remove Toor because Toor had departed the United States before the IJ ordered his removal. The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) affords noncitizens a statutory guarantee to file one motion reconsidering a decision that the alien is removable from the United States. Prior to the passage of IIRIRA, two regulations (“regulatory departure bar”) prevented a noncitizen, subject of immigration proceedings, to make motions reopening or reconsidering after the noncitizen’s departure from the United States. The Board of Immigration Appeals (“BIA”) held that the regulatory departure bar survived IIRIRA’s passage. On appeal, however, the Ninth Circuit held that prior precedent would stand if Congress’s intent is unambiguous from the plain meaning of the text. The panel then held that the plain meaning of IIRIRA is not specifically limited by the individual’s departure from the United State. Thus, the regulatory departure bar conflicts with clear statutory text. GRANTED and REMANDED.