(B)

Motions to Reconsider.  A motion to reconsider specifies errors of fact or law in a prior decision,  must be supported by pertinent authority, and must be filed within 30 days of the Immigration Judge’s removal order.[161]  Such a motion might be appropriate, for example, where the evidence of post-conviction relief was available prior to the order, but the judge failed or refused to consider the evidence.

 

Generally, the respondent cannot file more than one motion to reopen or motion to reconsider a removal order (though it may be possible to file a motion to reopen followed by a motion to reconsider the denial of the motion to reopen).[162]  Filing a motion to reopen or a motion to reconsider does not toll the 30-day period for filing a notice of appeal to the BIA.

 

If all deadlines have passed, and no appeal is available, the respondent may request that the Immigration Judge that made the decision reopen or reconsider the case upon his or her own motion.  A request for such a sua sponte order may be made at any time.[163]  The noncitizen may also ask the Department of Homeland Security to file a joint motion with the respondent before the Immigration Court.[164]  The Immigration Judge has “broad discretion” to grant or deny such motions.[165] 

 

The BIA has held that changed circumstances, such as vacating a criminal conviction, are an appropriate basis for reopening administrative proceedings, even if the procedural requirements for a motion have not been met.[166]  The BIA has also expressly held that a final order of deportation may be reopened and remanded for further proceedings based on a change in the law.[167]  Sua sponte motions, however, are rarely granted.[168]

 

The Ninth Circuit has held that the regulations that bar noncitizens who have been physically removed from the United States following an order of removal from moving to reopen proceedings do not apply when a criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity.[169]

 

[161] 8 C.F.R. § 1003.23(b)(2).

[162] 8 C.F.R. § 1003.23(b).

[163] Ibid.

[164] 8 C.F.R. § 1003.23(b)(4)(iv).

[165] INS v. Doherty, supra; INS v. Wang, supra; INS v. Rios-Pineda, 471 U.S. 444, 449 (1985).

[166] See, e.g., Escobar v. INS, 935 F.2d 650, 652 (4th Cir. 1991) (noting that INS had asked to re-open final order of deportation and terminate proceedings where conviction had been expunged); Becerra-Jimenez v. INS¸ 829 F.2d 996, 1000-02 (10th Cir. 1987) (remanding to agency for consideration of motion to re-open after convictions had been expunged); Haghi v. Russell, 744 F.Supp. 249, 251-52 (D. Colo. 1990) (motion to re-open pursuant to 8 C.F.R. § 3.2 is proper based on the “new and material” evidence that conviction had been vacated). 

[167] Matter of XGW, 22 I. & N. Dec. 71 (BIA 1998), superceded on other grounds, Matter of GCL, 23 I. & N. Dec. 359 (BIA 2002).  In Matter of GD, 22 I. & N. Dec. 1132 (BIA 1999), the Board again examined when a change in law is sufficiently fundamental so as to qualify as an exceptional circumstance to merit the BIA to reopen or reconsider a case sua sponte.  There, the Board found that a judicial decision was not sufficiently fundamental because it was “at most an incremental development in the law, not a departure from established principles.” 

[168] Ibid.

[169] Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions is not legally valid, and thus does not bar motion to reopen).

Ninth Circuit

POST CON RELIEF " VACATUR " MOTION TO REOPEN " BIA FREQUENTLY GRANTS MOTION TO REOPEN SUA SPONTE AFTER VACATUR REMOVES BASIS FOR REMOVAL
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte under 8 C.F.R. 1003.2(a); cf. In re Rodriguez"Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (concluding that a conviction vacated on the merits cannot form the basis for an alien's removal). The Board regularly grants such requests when the alien's underlying conviction has been vacated due to a substantive or procedural defect in the original criminal proceedings, concluding that such a change in the facts constitutes exceptional circumstances justifying further review of the alien's case.) (footnote omitted).