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September/October 2011

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BEHIND THE CASE by Sheeba Raj CASE: Prestol Espinal v. Attorney General, No. 10-1473 (3d Cir. Aug. 3, 2011). ATTORNEY: Jacqueline Brown Scott CA3: Post-Departure Bar Out of Sync with IIRAIRA T he U.S. Court of Appeals for the Third Circuit joined five other circuits in August 2011 when it ruled that the post-departure bar, which bars de- parted noncitizens from filing motions to reopen and motions to reconsider, clashes with Congress's unambiguous intent to permit such motions. The Third Circuit ruled in Prestol Espinal v. Attor- ney General, No. 10-1473 (3d Cir. Aug. 3, 2011), that "[t]he plain text of [IIRAIRA] provides each alien with the right to file one motion to reopen and one motion to reconsider, provides time periods during which an alien is entitled to do so, and makes no exception for aliens who are no longer in this country." The court now joins the Second, Fourth, Sixth, Seventh, and Ninth Circuits in invalidating the regulation. Taking the Case, Pro Bono Ramon Julio Prestol Espinal had appeared pro se in removal proceedings until AILA member Jac- queline Brown Scott became involved in his case. The Department of Homeland Security had charged Prestol Espinal with being present in the United States without being admitted or paroled. It also alleged that his criminal convictions rendered him removable. Prestol Espinal conceded removability, but requested protection because gang members in his native Dominican Republic sought to kill him in retaliation for his cooperation with the Drug En- forcement Agency. The immigration judge denied Prestol Espinal's applications for asylum, withhold- ing of removal, and relief under the Convention Against Torture; then the Board of Immigration 28 VOICE Appeals (BIA) upheld that decision. About three weeks later, Prestol Espinal was deported to the Do- minican Republic. Brown Scott, who received the case through the BIA Pro Bono Project in August 2009, timely filed a motion to reconsider the BIA's denial. The Board, however, cited a lack of jurisdic- tion to entertain the motion because Prestol Espinal had leſt the United States. Having never handled a matter concerning the post-departure bar, codified at 8 CFR §1003.2(d), Brown Scott scoured the Internet for resources, finding a practice advisory on motions to reopen (which has since been updated) issued by the Post- Deportation Human Rights Project,1 Aſter consult- ing Project staff, she realized there wasn't much more to go on. "I wanted to know if there were Third Circuit cases that were in the pipeline that would help him. It turned out there weren't—I was going to be the case," Brown Scott said. LAC, NLG Lend a Helping Hand The American Immigration Council's Legal Ac- tion Center (LAC) and the National Lawyers Guild served as amici curiae in Prestol Espinal. "Around 2005, LAC was hearing from a lot of immigration lawyers and AILA members about problems their clients were facing trying to get their cases reopened aſter they had been deported," said LAC Deputy Di- rector Beth Werlin. "Around the same time, we be- gan thinking about the regulation and realizing it was incompatible with the statute," added Werlin. "We did a thorough regulatory history and found its underpinnings were linked to a statute barring judicial review post departure, which Congress re- moved in 1996. We thought we had a strong argu- ment … and started reaching out to lawyers to find partners to litigate this issue with us." Werlin welcomed the Third Circuit's decision, say- ing, "To date, it's the most clear and complete analy- sis of the issue and sets the stage for the other circuit courts that haven't ruled yet. It also, hopefully, will prompt the agency to withdraw its regulation."

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