After the Immigration Court has issued an order of removal, the noncitizen can file an appeal to the Board of Immigration Appeals (BIA) if appeal has not been waived.  Any appeal to the BIA must be filed within 30 days of the removal order.[24]  Jurisdiction over the case vests with the BIA after the Notice of Appeal has been filed.[25]

 

            The noncitizen may alternatively choose to file a motion to reconsider the decision of the Immigration Judge, or a motion to reopen the proceedings.  A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion.[26]  The motion must state new facts to be proven at a hearing to be held if the motion is granted, and must be supported by affidavits and other evidentiary material.[27]  A motion to reopen should be used where evidence of post-conviction relief first becomes available after the removal order has been issued, but before the appeal due date, or where the deadline for appeal has already passed or the respondent has waived appeal.

 

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 order.[28]  Such a motion might be appropriate 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 (though it may be possible to file a motion to reopen followed by a motion to reconsider the denial of the motion to reopen).[29]  Filing a motion to reopen or a motion to reconsider does not toll the 30-day appeal period.

 

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 motion may be made at any time.[30]  The noncitizen may also ask the Department of Homeland Security to file a joint motion with the Immigration Court.[31]  The Immigration Judge has “broad discretion” to grant or deny such motions.[32] 

 

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 have not been met.[33]  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.[34]  Sua sponte motions, however, are rarely granted.[35]

The Immigration Courts lose jurisdiction to consider a motion to reopen or reconsider, including a sua sponte motion, once an appeal has been filed with the BIA.  Once the proceedings have been reopened, the noncitizen may file a motion to terminate proceedings based upon the post-conviction relief.

[24] 8 C.F.R. § 1003.38.

[25] 8 C.F.R. § 1003.3.

[26] 8 C.F.R. § 1003.23(b).

[27] 8 C.F.R. § 1003.23(b)(3).

[28] 8 C.F.R. § 1003.23(b)(2).

[29] 8 C.F.R. § 1003.23(b).

[30] Ibid.

[31] 8 C.F.R. § 1003.23(b)(4)(iv).

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

[33] 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). 

[34] In Matter of XGW, 22 I. & N. Dec. 71 (BIA 1998), superceded on other grounds, Matter of GCL, 23 I. & N. Dec. 359 (BIA 2002), the Board decided, due to fundamental statutory changes in the definition of the term “refugee,” and in the interest of justice, that it would reopen proceedings sua sponte so that petitioners could apply for asylum, despite regulations that specified time and number limitations on motions to reopen.  The court noted that “a significant change in the immigration law made relief available to the applicant on the basis of the same asylum application he filed initially, and he has filed his motion promptly following the new developments.”  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.” 

[35] Ibid.

Third Circuit

MOTION TO REOPEN - 180 DAY DEALINE SUBJECT TO EQUITABLE TOLLING
Borges v. Gonzales, __ F.3d __, 2005 WL 712367 (3d Cir. March 30, 2005) (180 day time limit filing a motion to reopen removal proceeding following in order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling).