In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Third Circuit, upheld the denial of a motion to reopen filed by a respondent who had been removed during the pendency of the appeal. The Board stated that in light of the position of both parties, it would not consider whether a lawful removal during the pendency of an appeal constitutes a “departure” under 8 CFR 1003.4. The decision was written by Member Kendall-Clark and joined by Member David Holmes and Member Ellen Liebowitz.