Criminal Defense of Immigrants

 

After the Immigration Judge issues a final order of removal, either party may 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.[342]  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.[343]  A motion to reopen should be used, for example, when evidence of successful 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 to the BIA.

 

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 removal order.[344]  Such a motion might be appropriate, for example, 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 a removal order (though it may be possible to file a motion to reopen followed by a motion to reconsider the denial of the motion to reopen).[345]  Filing a motion to reopen or a motion to reconsider does not toll the 30-day period for filing a notice of appeal to the BIA.

 

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 order may be made at any time.[346]  The noncitizen may also ask the Department of Homeland Security to file a joint motion with the respondent before the Immigration Court.[347]  The Immigration Judge has “broad discretion” to grant or deny such motions.[348] 

 

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 for a motion have not been met.[349]  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.[350]  Sua sponte motions, however, are rarely granted.[351]

The Ninth Circuit has held that the regulations that bar noncitizens who have been physically removed from the United States following an order of removal from moving to reopen proceedings do not apply when a criminal conviction that formed a “key part” of the order of removal has been vacated on a basis of legal invalidity.[352]

 

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.

[342] 8 C.F.R. § 1003.23(b).

[343] 8 C.F.R. § 1003.23(b)(3).

[344] 8 C.F.R. § 1003.23(b)(2).

[345] 8 C.F.R. § 1003.23(b).

[346] Ibid.

[347] 8 C.F.R. § 1003.23(b)(4)(iv).

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

[349] 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). 

[350] 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.” 

[351] Ibid.

[352] Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions is not legally valid, and thus does not bar motion to reopen).