8 CFR Section 1003.2(d) covers MTRs filed with the BIA whereas 8 CFR Section 1003.23(b)(1) covers MTRs filed with the IJ. Although these federal statutes are absent among those governing MTRs, a minority of circuit courts have interpreted the regulation to bar MTRs filed by noncitizens who have been removed or voluntarily depart from the U.S. This is known as the “post-departure bar.”

In addition, 8 CFR 1003.4 provides that departure–as ordered or voluntarily–acts to withdraw the MTR and appeal.

Ninth Circuit case law generally invalidated the regulations, claiming they conflict with Congress’s clear intent in enacting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to expedite removal without sacrificing precision in removal determinations. Among other factors, this invalidated the post-departure bar.