Jasbir Toor v. Loretta E. Lynch

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which inter alia provides all noncitizens a statutory guarantee that they may file “one motion to reconsider a decision that the alien is removable from the United States,” 8 U.S.C. § 1229a(c)(6)(A), and “one motion to reopen proceedings,” 8 U.S.C. § 1229a(c)(7)(A). See Dada v. Mukasey, 554 U.S. 1, 14 , 128 S.Ct. 2307 , 171 L.Ed.2d 178 (2008) (“[T]he statutory text is plain insofar as it guarantees to each alien the right to file ‘one motion to reopen proceedings under this section.’ ” (citation omitted)). That guarantee was limited in some ways — with number, content, and time restrictions — but not in any respect by whether the noncitizen had departed the United States prior to filing such motions.

Two regulations that predate the passage of IIRIRA — hereinafter referred to as the regulatory departure bar — provide that a noncitizen who is the subject of immigration proceedings may not make a motion to reopen or reconsider “subsequent to his or her departure from the United States.” See 8 C.F.R. § 1003.23 (b)(1) (concerning motions to reopen or reconsider made before an…