(C)  During Immigration Appeal.  While appeal of the removal order to the BIA is pending, immigration counsel can submit the evidence to the BIA in support of a motion to remand the case to the immigration judge for consideration of this new evidence.  It often takes the BIA a number of months to react to a motion to remand under these circumstances.

 

                (1)  Motion to Reopen After BIA Dismissal of Appeal.  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.[467]  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).[468]   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.[469]  These requests are rarely granted.[470]

 

                (2)  During Petition for Review Proceedings.  If the vacatur comes after the BIA has dismissed the appeal, immigration counsel can petition for review of the removal order in the United States Court of Appeals, and seek a stay of deportation during these proceedings.  Counsel can submit the new evidence to the court of appeals, and seek an order remanding the case to the BIA with instructions to reopen and consider this new evidence.

 

[467] 8 C.F.R. § 1003.2.

[468] Ibid.

[469] 8 C.F.R. § 1003.2(c)(3)(iii).

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 Matter of XGW, 22 I. & N. Dec. 71 (BIA 1998), superceded on other grounds, Matter of GCL, 23 I. & N. Dec. 359 (BIA 2002).

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.").