Criminal Defense of Immigrants

(B)  Motions to Reopen.  The BIA takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion.[472] The Fifth Circuit agrees.[473]  The Ninth[474] and Eleventh[475] Circuits, however, have found these regulations inapplicable in certain situations. Pending cases in other circuits are challenging the regulations, both as applied and on their face.

[472]  8 C.F.R. § § 1003.2(d), 1003.23(b)(1),

[473] Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (upholding BIA’s reasoning that 8 C.F.R. § 3.2(d) negates the BIA’s sua sponte authority to reopen and reconsider a case at any time).

[474] Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 C.F.R. § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal …proceedings.’”; once a person leaves the United States, s/he is no longer subject to proceedings, so therefore because the petitioner was removed to China and then filed his motion to reopen, his proceedings were completed and 8 CFR § 3.23(b)(1) was inapplicable); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), the court found that where a person’s conviction is vacated, s/he has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) ( 8 C.F.R. § 1003.2(d) found inapplicable to a motion to reopen to rescind an in absentia order where the person had departed the United States before the commencement of proceedings).

[475] Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA §   40(b)(5)(C) and 8 C.F.R. § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States).