Background
Rustico Lacsina, a native and citizen of the Philippines, became a lawful permanent resident in 1982. The Department of Homeland Security initiated removal proceedings in 2024 based on his California convictions for receiving stolen property and possessing methamphetamine. An immigration judge found him inadmissible, concluding that the stolen-property offense was a crime involving moral turpitude and that the drug offense involved a federally controlled substance, and ordered him removed to the Philippines.
The Board of Immigration Appeals affirmed based on the stolen-property conviction without addressing the drug conviction, and Lacsina was removed in November 2024. After a California court vacated both convictions, he moved to reopen his removal proceedings. The BIA denied the motion under the regulatory “departure bar,” which prohibits a person who has left the United States from moving to reopen, and concluded that it lacked jurisdiction to reopen the case.
The Court’s Holding
The Eighth Circuit held that the departure bar in 8 C.F.R. § 1003.2(d) cannot restrict the statutory right to file one motion to reopen under 8 U.S.C. § 1229a(c)(7). The statute establishes numerical, evidentiary, and timing requirements but imposes no general geographic restriction. Because Congress expressly included a physical-presence condition in a separate provision concerning certain domestic-violence victims, its omission of such a condition from ordinary statutory motions reinforced the court’s reading.
The court also held that the BIA could not treat the departure bar as a jurisdictional limit because Congress controls the BIA’s jurisdiction and the statute contains no such limitation. It therefore granted review of the denial of Lacsina’s statutory motion and remanded so the BIA could consider the effect of his vacated convictions in the first instance. The court denied review of the BIA’s refusal to reopen sua sponte because that decision is committed to agency discretion and generally unreviewable. It did not decide the merits of Lacsina’s substantive challenge to removability or whether reopening should ultimately be granted.
Key Takeaways
- A person’s removal from the United States does not eliminate the statutory right to file a motion to reopen under 8 U.S.C. § 1229a(c)(7).
- The BIA may not use the regulatory departure bar to create a geographic or jurisdictional restriction absent from the statute.
- The remand permits the BIA to consider Lacsina’s vacated convictions but does not dictate whether reopening or substantive relief is warranted.
Why It Matters
The decision brings the Eighth Circuit into agreement with every other federal circuit to have addressed the departure bar’s application to statutory motions to reopen. Noncitizens removed from the country may still invoke the statutory reopening procedure if they satisfy its other requirements.
The ruling is procedural but consequential: it prevents removal itself from foreclosing BIA consideration of later developments, such as the vacatur of convictions underlying a removal order, while preserving the limits on judicial review of requests for sua sponte reopening.