Post-Conviction Relief for Immigrants

Upon dismissal of the appeal, the respondent has 30 days to file a motion to reconsider based upon an error of fact or law by the BIA, and 90 days to file a motion to reopen on the basis of new material evidence that was not available and could not have been discovered or presented at the former hearing.[36]  Generally, the respondent cannot file more than one motion to reopen or motion to reconsider (though filing a motion to reopen followed by a motion to reconsider denial of the motion to reopen may be possible).[37]   It is also possible to file the motion to reopen on time, and later submit the evidence that the conviction has been vacated.  At least one case has been won on this basis, but this procedure is not recommended unless there is no alternative because the BIA may conclude that the evidence came too late.

If all deadlines have passed, the respondent may request that the BIA reopen or reconsider the case sua sponte.  A request for such a motion may be made at any time.  The noncitizen may also ask the Department of Homeland Security to file a joint motion with the BIA.[38]  These requests are rarely granted.[39]

[36] 8 C.F.R. § 1003.2.

[37] Ibid.

[38] 8 C.F.R. § 1003.2(c)(3)(iii).

[39] Cf. Matter of XGW, 22 I. & N. Dec. 71 (BIA 1998), superceded on other grounds, Matter of GCL, 23 I. & N. Dec. 359 (BIA 2002).