At its annual meeting on Monday, August 8th, the House of Delegates of the American Bar Association adopted a resolution developed by the Immigration Committee of the Administrative Law Section that calls upon the Department of Justice to eliminate its regulatory “post-departure bar” on motions to reopen or to reconsider removal (deportation) proceedings.
Harrisburg Associate Professor Jill E. Family
, who served as the Chair of the Immigration Committee of the Administrative Law Section of the ABA from 2009 until early August of this year, worked for about a year drafting the resolution and report with professors Dan Kanstroom of Boston College and Rachel Rosenbloom of Northeastern. In addition to contributing to the resolution and report, Professor Family helped to guide the resolution through the Administrative Law Section and ultimately through the House of Delegates. She recently left the position as Chair to become a member of the governing council of the Administrative Law Section.
By statute, foreign nationals have the right to file one motion to reopen or to reconsider their administrative removal hearing, but the Department of Justice’s regulatory departure bar prevents those who have been physically removed from the United States from exercising that statutory right. “The post-departure bar is problematic because it is arbitrary and takes away a statutory right based on a condition not mentioned in the statute,” says Professor Family, adding, “Those who happen to have been actually removed may not ask for reopening or reconsideration, while those who are still in the United States awaiting removal may ask.”
“The resolution is important not only because it promotes equal access to a statutory right, but also because these motions have proven to be especially important in immigration law. The state of the administrative adjudication system is the subject of widespread concern, which makes the opportunity to ask for reconsideration all the more important,” she asserts, before noting that “The Supreme Court consistently has mandated new interpretations of immigration statutes, thus making the opportunity to ask for reopening all the more important.”
“We hope that the resolution will lead to the elimination of the regulatory post-departure bar on filing a motion to reopen or to reconsider a deportation hearing. In adopting the resolution, the ABA joined a growing number of federal courts of appeals who have struck down the post-departure bar. Eliminating the bar simply means that those already deported will have the opportunity to ask for their hearing to be reopened or to be reconsidered. It does not guarantee that the motion will be granted,” concludes Professor Family.