Jasbir Toor v. Loretta E. Lynch
2015 U.S. App. LEXIS 10175
| 9th Cir. | 2015Background
- Petitioner Jasbir Singh Toor, an Indian national and lawful permanent resident, faced removal after an IJ sustained charges of fraud and invalid entry; he departed the U.S. during proceedings and later filed timely motions to reopen and reconsider.
- The IJ denied the motions and the BIA dismissed the appeal, invoking the pre-IIRIRA regulatory "departure bar" (8 C.F.R. §1003.23(b)(1) / §1003.2(d)) that bars motions filed after a noncitizen departs the United States.
- Petitioner challenged the BIA’s jurisdictional refusal, arguing the regulatory departure bar conflicts with IIRIRA’s statutory guarantee that an alien may file one motion to reopen and one motion to reconsider.
- The Ninth Circuit reviewed the question of statutory interpretation de novo (with Chevron deference applied to the BIA’s published precedent) and focused on whether IIRIRA displaced the preexisting regulatory departure bar.
- The court held the regulatory departure bar conflicts with IIRIRA and is invalid regardless of whether departure was voluntary or involuntary; it granted review and remanded for merits consideration of Toor’s timely motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pre-IIRIRA regulatory "departure bar" can bar motions to reopen/reconsider by aliens who left the U.S. (including voluntary departures) | Toor: IIRIRA unambiguously grants each "alien" the right to file one motion to reopen and one to reconsider; statute contains no departure-based restriction, so the regulation conflicts with and is preempted by statute | Government: The regulation predated IIRIRA and was not expressly displaced when Congress enacted IIRIRA; alternatively, the departure bar is a permissible categorical exercise of agency discretion | Held: The statutory text is clear that Congress allowed any "alien" to file one motion to reopen and one to reconsider; the regulatory departure bar conflicts with IIRIRA and is invalid as applied to voluntary departures; remand for merits |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (statute guarantees an alien the right to file one motion to reopen)
- Santana v. Holder, 731 F.3d 50 (1st Cir. 2013) (regulatory departure bar conflicts with IIRIRA)
- Prestol Espinal v. Attorney Gen., 653 F.3d 213 (3d Cir. 2011) (IIRIRA displaces the departure bar)
- William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (statute’s reference to "an alien" includes aliens abroad)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (statutory text does not distinguish aliens abroad)
- Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (IIRIRA preempts departure bar)
- Lin v. U.S. Attorney Gen., 681 F.3d 1236 (11th Cir. 2012) (departure bar invalid under IIRIRA)
- Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (reserved question whether departure bar applies to voluntary departures)
- Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011) (departure bar invalid as applied to involuntary removals)