Angarita v. Bondi: Second Circuit Reaffirms the Departure Bar’s Jurisdictional Force and Strict Exhaustion in Motions to Reopen

Introduction

On 8 July 2025, the United States Court of Appeals for the Second Circuit decided Angarita v. Bondi, No. 21-6046 (summary order). Although the ruling is formally non-precedential under the court’s local rules, it offers an instructive analysis on three recurring immigration-procedure issues:

1. The continued vitality of the “departure bar” in 8 C.F.R. § 1003.23(b)(1);
2. The limits of equitable tolling for untimely motions to reopen after INS v. St. Cyr;
3. Rigid enforcement of the exhaustion doctrine—arguments not first raised before the Board of Immigration Appeals (BIA) will not be entertained on petition for review.

The petitioner, José Luis Angarita, a Colombian national and former lawful permanent resident, sought to reopen 1998 removal proceedings after receiving an absolute state pardon for a 1996 drug conviction and in light of § 212(c) relief recognized in St. Cyr. Both the Immigration Judge (IJ) and the BIA denied his motions, principally invoking the departure bar. The Second Circuit denied the petition for review, emphasizing lack of due diligence for equitable tolling and failure to exhaust several arguments.

Summary of the Judgment

• Holding: Petition for review denied; the BIA did not abuse its discretion in affirming the IJ’s denial of Angarita’s motion to reconsider, which in turn refused to reopen the removal proceedings.
• Key Findings:
  • The departure bar in § 1003.23(b)(1) remains binding in the Second Circuit under Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010).
  • Equitable tolling requires diligent pursuit of rights; a 14-year delay after St. Cyr, coupled with a one-year post-pardon delay, failed that standard.
  • Arguments not presented to the BIA—namely, that the departure bar is merely a “claim-processing rule” post-Kisor v. Wilkie—were deemed forfeited.
  • A full state pardon does not automatically nullify a final removal order premised on a deportability ground already litigated.

Analysis

Precedents Cited and Their Influence

1. Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010)
   • Upheld the validity of the departure bar as a permissible agency interpretation entitled to Auer/Chevron deference.
   • The IJ and BIA regarded Zhang as binding; the Circuit saw no reason to revisit it absent proper presentation of a Kisor-based challenge.
2. INS v. St. Cyr, 533 U.S. 289 (2001)
   • Restored § 212(c) relief for certain lawful permanent residents with pre-AEDPA/IREA convictions.
   • Angarita invoked St. Cyr to argue for reopening, but excessive delay doomed equitable tolling.
3. Kisor v. Wilkie, 588 U.S. 558 (2019)
   • Clarified limits on Auer deference.
   • Cited by petitioner only in Circuit briefing; court refused to consider it because it was not raised before the BIA.
4. Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) & Liu v. Gonzales, 439 F.3d 109 (2d Cir. 2006)
   • Articulate standards for motions to reconsider: must specify errors of law or fact; mere repetition of prior arguments is insufficient.
5. Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008)
   • When the BIA chooses to address an unexhausted issue, the matter is deemed exhausted for judicial review; used to reach equitable tolling argument.
6. In re Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009)
   • Exception to the departure bar where a respondent never received notice; the IJ/BIA found it inapposite to Angarita.

Legal Reasoning of the Court

1. Scope of Review
   The Second Circuit reviewed only the BIA’s affirmance of the IJ’s denial of reconsideration, not the initial motion to reopen. The standard is abuse of discretion; the court asks whether the BIA’s decision “provides rational explanations” and rests on a proper legal foundation.
2. Departure Bar Treated as Jurisdictional
   The IJ, BIA, and Circuit all treated the departure bar as stripping immigration courts of the authority to entertain motions by departed aliens unless relief is sought through the agency’s sua sponte power.
   Under Zhang, the bar remains good law in the Second Circuit, unaffected in this case by Kisor because the argument was not exhausted.
3. Equitable Tolling Analysis
   The BIA examined diligence:
   • § 212(c) window: deadline expired in 2006 (90 days after § 1212.3 implementation); petitioner waited until 2020.
   • Pardon: granted May 2018; motion filed April 2019 (11 months).
   
   The BIA deemed the 14-year and 11-month delays incompatible with the diligence prong of equitable tolling, and the Circuit found no error.
4. Repetition of Arguments
   Under Liu, merely re-asserting earlier points is insufficient for reconsideration. Angarita’s first two grounds (pardon and § 212(c)) were recycled; the third ground (departure-bar exceptions) lacked factual or legal overlap with his case.
5. Exhaustion Doctrine
   Reliance on Punin v. Garland, 108 F.4th 114 (2d Cir. 2024): circuit courts cannot consider issues not “raised with specificity” before the BIA. The petitioner’s new “claim-processing” theory of the departure bar was therefore forfeited.

Potential Impact

Although designated a summary order, Angarita provides an important signal:

• Departure Bar Endurance. The court’s refusal even to entertain a Kisor-based re-examination suggests that Zhang is unlikely to be disturbed absent Supreme Court intervention or en banc reconsideration.
• Stringent Equitable Tolling. Applicants who delay § 212(c)-based motions past the 90-day regulatory window must show extraordinary diligence; decades-long gaps will rarely suffice.
• Exhaustion Discipline. Litigants must carefully preserve all arguments—especially novel theories challenging agency regulations—at the BIA stage.
• Pardons Not a Silver Bullet. A state pardon may remove the underlying deportability ground prospectively but does not, standing alone, vacate a final removal order already in force.

Complex Concepts Simplified

Departure Bar (8 C.F.R. § 1003.23(b)(1))

A regulation prohibiting non-citizens who have left the United States (voluntarily or under a removal order) from filing motions to reopen or reconsider. It is meant to prevent endless litigation by individuals outside U.S. territory.

Motion to Reopen vs. Motion to Reconsider

Motion to Reopen: asks the immigration court to look at new evidence or changed circumstances; must ordinarily be filed within 90 days of a final order.
Motion to Reconsider: argues that the prior decision was legally or factually wrong; must be filed within 30 days and must cite specific errors and supporting authority.

Equitable Tolling

A judicial doctrine allowing deadlines to be suspended when extraordinary circumstances prevented timely filing, provided the party pursued rights diligently.

Sua sponte Reopening

Discretionary authority of an IJ or the BIA to reopen a case on their own motion at any time; not subject to judicial review unless exercised.

§ 212(c) Relief

A discretionary waiver (formerly in the INA) that allows certain lawful permanent residents to avoid removal despite convictions; resurrected in specific circumstances by St. Cyr.

Exhaustion of Administrative Remedies

Requirement that all legal claims be presented to the agency (here, the BIA) before a federal court can review them, ensuring the agency has an opportunity to correct its own errors first.

Conclusion

Angarita v. Bondi re-affirms, albeit in a non-precedential format, three core propositions in Second Circuit immigration jurisprudence:

1. The departure bar remains a jurisdictional limitation on motions to reopen or reconsider for aliens who have left the country, per Zhang.
2. Equitable tolling is viable only with demonstrated diligence; long dormant claims—even post-pardon—will falter.
3. Strict issue exhaustion is enforced; novel regulatory or constitutional challenges must first be aired before the BIA.

For practitioners, the decision underscores the critical importance of prompt action following potential retroactive relief developments, meticulous preservation of all arguments at the administrative level, and caution against assuming that a state pardon alone will unravel prior final removal orders. While summary orders are not precedential, Angarita’s reasoning will almost certainly guide district courts, immigration judges, and counsel confronting departure-bar and equitable-tolling questions in the Second Circuit.