(A)  Prior to Removal Order.  Prior to the issuance of a removal order, the evidence of the alteration of the criminal history can simply be submitted at the merits hearing, in support of a motion to terminate proceedings.  It must be submitted to the immigration courts, either before a final removal order or in a motion to reopen or reconsider, before it may normally be considered by the court of appeals on a petition for review.[464]

[464] Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003) (en banc) (holding BIA violated noncitizen’s right to due process, in appeal of decision granting suspension of deportation, when BIA stated it was entirely precluded from considering new evidence bearing on hardship including evidence that, in the eight years intervening between immigration judge’s decision and proceedings before BIA, noncitizen’s daughter had been diagnosed with serious medical condition for which treatment was likely unavailable if noncitizen was deported).

First Circuit

POST CON RELIEF - EFFECTIVE ORDER - VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).

Fifth Circuit

GOING BACK TO IMMIGRATION COURT AFTER POST-CONVICTION RELIEF - ISSUE MUST BE PRESENTED TO BIA BEFORE PETITIONING FOR REVIEW BY A MOTION TO REOPEN FOR EXCEPTIONAL CIRCUMSTANCES EVEN IF THE 90-DAY DEADLINE FOR FILING A MOTION TO REOPEN HAS PASSED
Toledo-Hernandez v. Mukasey, 521 F.3d 332 (5th Cir. Mar. 12, 2008) ("[I]f the BIA has never been given the opportunity to consider an issue but has the mechanisms to remedy it, even where the 90-day period for presenting a motion to reopen has passed, a petitioner must first present the issue to the Board in the form of a motion to reopen for exceptional circumstances. Toledo does not dispute that he has not raised the issue of his vacated convictions before the BIA, nor does he contend that the BIA has inadequate mechanisms to address and remedy his claim. Accordingly, this Court lacks jurisdiction to review this claim.").