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).

BIA

MOTION TO REOPEN " NONCITIZEN WITH FINAL ORDER MAY MOVE TO REOPEN TO PURSUE ADJUSTMENT OF STATUS
Singh v. Holder, __ F.3d __ (9th Cir. Nov. 13, 2014) (BIA has jurisdiction to reopen removal proceedings to allow noncitizen to pursue adjustment of status under 8 C.F.R. 1003.2(a)), declining to follow Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009).

JUDICIAL REVIEW -- MOTION TO REOPEN - 90 DAY TIME LIMIT
Matter of Monges-Garcia, 25 I. & N. Dec. 246 (BIA 2010) (the 90-day time limitation for filing a motion to reopen in 8 C.F.R. 1003.23(b)(1) applies regardless of whether the motion was filed before or after the 1996 promulgation of the regulations; the 5-year bar to discretionary relief for failure to appear, under INA 242B(e)(1), does not provide an exception to this rule).

MOTION TO REOPEN - IN ABSENTIA HEARING - NONCITIZEN IS NOT AT FAULT FOR FAILING TO APPEAR SOLELY BECAUSE OF THE CONDUCT CAUSING CRIMINAL ARREST AND INCARCERATION
Matter of Evra, 25 I. & N. Dec. 79 (BIA Sept. 21, 2009) (the conduct underlying an aliens arrest and incarceration does not constitute "fault" within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was "through no fault of the alien."). http://www.usdoj.gov/eoir/vll/intdec/vol25/3654.pdf

REMOVAL PROCEEDINGS - MOTION TO REOPEN - NO BAR AFTER LEAVING UNITED STATES IF MOTION TO REOPEN IS BASED ON LACK OF NOTICE
Matter of Bulnes, 25 I. & N. Dec. 57 (BIA Jul. 23, 2009) (departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice).

REMOVAL PROCEEDINGS - MOTION TO REOPEN
Matter of Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009) (motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may not be denied based on the mere fact that the Government has filed an opposition to the motion, without regard to the merit of that opposition).

MOTION TO REOPEN
Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009) (noncitizens departure from the United States while under outstanding in absentia order does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice).

MOTION TO REOPEN - BIA LACKS AUTHORITY TO REOPEN REMOVAL PROCEEDINGS AFTER NONCITIZEN HAS DEPARTED FROM THE UNITED STATES AFTER PROCEEDINGS HAVE BEEN COMPLETED
Matter of Andres Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) (pursuant to 8 C.F.R. 1003.2(d) (2008), BIA lacks authority to reopen removal, deportation, or exclusion proceedings - whether on motion of noncitizen or sua sponte - if the noncitizen has departed the United States after those administrative proceedings have been completed). http://www.usdoj.gov/eoir/vll/intdec/vol24/3626.pdf

MOTIONS TO REOPEN AFTER DEPARTURE FROM THE UNITED STATES
The BIA, citing 8 CFR 1003.2(d) and 1003.23(b)(1), 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. The Ninth and Eleventh Circuits, however, have found these regulations inapplicable in certain situations. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR 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, he or she is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR 3.23(b)(1) is no longer applicable); 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 240(b)(5)(C) and 8 CFR 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); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a persons conviction is vacated, he or she has a right to file a motion to reopen, despite having been removed, if the conviction was a "key part" of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). But see, Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR 3.2(d) trumps the BIAs sua sponte authority to reopen and reconsider a case at any time).

SENTENCE - SUSPENDED SENTENCE - ILLEGAL RE-ENTRY SENTENCING
United States v. Alvarez-Hernandez, __ F.3d __, 2007 WL 601991 (9th Cir. Feb. 28, 2007) (a sentence that has been suspended in full [i.e. defendant served no time in prison] does not trigger 12 level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(B), for having a previous conviction for "a felony drug trafficking offense for which the sentence imposed was 13 months or less").

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION BAR FOR DISCRETIONARY DECISIONS DOES NOT APPLY TO MOTIONS TO REOPEN
Counsel can argue, and the Ninth Circuit holds, that in certain circumstances the bar to judicial review over discretionary decisions does not apply to motions to reopen. INA 242(a)(2)(B)(i) [8 U.S.C. 1252(a)(2)(B)(i)] specifically delineates certain forms of discretionary relief over which "no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h) [8 U.S.C. 1182(h)], 212(i) [8 U.S.C. 1182(i)], 240A [8 U.S.C. 1229b], 240B [8 U.S.C. 1212c], or 245 [8 U.S.C. 1255]." The courts of appeal arguably have jurisdiction over a motion to reopen unless it stems from a judgment that is barred from review by 8 U.S.C. 1252(a)(2)(B)(i). Medina-Morales v. Ashcroft, 371 F.3d 520, 526 (9th Cir. 2004).

Under 8 U.S.C. 1252(a)(2)(B)(ii), the Ninth has found it has jurisdiction with the exception of "any other decision or action" not specified in 8 U.S.C. 1252(a)(2)(B)(i), determined under the INA "to be in the discretion of the Attorney General or Secretary of Homeland Security." The Ninth Circuit found, however, that a motion to reopen does not come under any authority specified under the INA to be construed as "any other decision or action" to be considered discretionary according to 1252(a)(2)(B)(ii). Because motions to reopen "are not acts over which a statute gives the Attorney General such pure discretion," 8 U.S.C. 1252(a)(2)(B)(ii) it should not divest the Ninth Circuit of jurisdiction to review such motions. Medina-Morales, 371 F.3d at 528-529. Thus, even though IAC is discretionary, the authority for an MTR is not and judicial review may still exist. Counsel can also argue that it exists as a constitutional issue as well. Thanks to Holly S. Cooper.

First Circuit

REMOVAL PROCEEDINGS -- MOTION TO REOPEN " NEW EVIDENCE -- MATERIALITY STANDARD
Rosales-Perez v. Holder, 740 F.3d 57 (1st Cir. Jan. 15, 2014) (BIA properly denied petitioner's motion to reopen his removal proceedings, since the BIA did not misapply the materiality standard where it evaluated whether the new evidence showed that a "different outcome is warranted" in petitioner's case, or abuse its discretion in finding the new evidence was not material).

REMOVAL PROCEEDINGS " MOTION TO REOPEN " POST-DEPARTURE BAR
Santana v. Holder, 731 F.3d 50 (1st Cir. 2013) (invalidating "post-departure bar," which precludes a noncitizen from filing a motion to reopen "subsequent to his or her departure from the United States."), citing 8 C.F.R. 1003.2(d).

REMOVAL PROCEEDINGS - MOTION TO RECONSIDER
Martinez-Lopez v. Holder, 704 F.3d 169 (1st Cir. Jan. 4, 2013) (noncitizen may not raise new legal theories for eligibility for relief on a motion to reconsider that, though previously available, were not previously asserted).

JUDICIAL REVIEW " PETITION FOR REVIEW " SUA SPONTE MOTION TO REOPEN
Matos-Santana v. Holder, 660 F.3d 91, 2011 WL 5176795 (1st Cir. Nov. 2, 2011) (Court of Appeals lacked jurisdiction to review claim that BIA abused its discretion in not sua sponte entertaining his untimely motion to reopen).

JUDICIAL REVIEW " MOTION TO REOPEN " EQUITABLE TOLLING " NUMBER AND TIME LIMITATIONS
Neves v. Holder, 613 F.3d 30 (1st Cir. Jul. 21, 2010) (petitioner not entitled to equitable tolling where he did not provide evidence demonstrating exercise of due diligence from the date of the BIAs 2003 denial of his first motion to reopen through discovery of attorneys ineffective assistance in June 2006).

MOTION TO REOPEN - NEW EVIDENCE
Chun Xin Chi v. Holder, 606 F.3d 6 (1st Cir. May 26, 2010) (expiration of ten-year bar for failure to voluntarily depart did not constitute "new and previously unavailable evidence" as would warrant reopening removal proceedings to allow noncitizen to apply for adjustment of status).

MOTION TO REOPEN - APPLICATION FOR RELIEF
Palma-Mazariegos v. Gonzales, 504 F.3d 144 (1st Cir. Oct. 2, 2007) (motion to reopen removal proceedings for purpose of applying for relief must be accompanied by application for requested relief).

MOTION TO REOPEN - VOLUNTARY DEPARTURE NOT STAYED
Chedad v. Gonzales, __ F.3d __, 2007 WL 2178427 (1st Cir. Jul. 31, 2007) (BIA grant of a timely motion to reopen did not vacate the original IJs decision finding removability and granting voluntary departure, and did not stay the voluntary departure period, even though it is highly unlike that BIA would reach decision on merits of motion to reopen before voluntary departure period expires; "We read 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly."), disagreeing with Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005), and following Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir.2006); Banda-Ortiz v. Gonzales, 445 F.3d 387, 391 (5th Cir.2006).

Second Circuit

JUDICIAL REVIEW - MOTION TO REOPEN - DEPARTURE BAR
Zhang v. Holder, 617 F.3d 650 (2nd Cir. Aug. 12, 2010) (BIA entitled to deference regarding interpretation of "departure bar" on motions to reopen under 8 C.F.R. 1003.2(a, d)).

MOTION TO REOPEN - SUA SPONTE
Cyrus v. Keisler, 505 F.3d 197 (2d Cir. Oct. 19, 2007) (court lacks jurisdiction to review denial of discretionary request for sua sponte motion to reopen).

BOARD OF IMMIGRATION APPEALS - MOTION TO RECONSIDER - DEFINITION AND STANDARD
Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("The BIA has defined a motion to reconsider as "a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked." In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991) (citation omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in the BIA decision and be supported by relevant authority.") citing 8 C.F.R. 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Third Circuit

JUDICIAL REVIEW " MOTION TO REOPEN " POST-DEPARTURE BAR
Desai v. Attorney General, 695 F.3d 267 (3d Cir. Aug. 21, 2012) (the post-departure bar, under 8 C.F.R. 1003.2(d), which precludes a removed person from filing a motion to reopen immigration proceedings, can be invoked by the agency as a basis for refusing to reopen proceedings sua sponte under 8 C.F.R. 1003.2(a)); distinguishing Prestol Espinal v. Attorney General, 653 F.3d 213, 224 (3d Cir.2011) (the post-departure bar held invalid to the extent it conflicted with a statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, 8 U.S.C. 1229a(c)(7), that grants aliens the right to file one motion to reopen under certain conditions).

JUDICIAL REVIEW"PETITION FOR REVIEW"MOTION TO RECONSIDER
Castro v. Attorney General, 671 F.3d 356 (3d Cir. Feb. 14, 2012) (the circuit court has jurisdiction to entertain a timely petition to review of the denial of a motion to reconsider a decision of the BIA, regardless whether review was sought from the original BIA decision: An adverse BIA decision on the merits (and accompanying order of removal) and a BIA order denying a motion to reconsider are two separate final orders. Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Either one may be the subject of a petition for judicial review, which must be filed within thirty days of the date of the order. 8 U.S.C. 1252(a)(1), (b)(1). As the government points out, filing a motion to reconsider does not toll the thirty-day period for seeking review of the earlier merits decision. Stone, 514 U.S. at 398"99; see also Khalil v. Att'y Gen., 309 F. App'x 624, 627 (3d Cir.), cert. denied, """ U.S. """", 130 S.Ct. 188, 175 L.Ed.2d 42 (2009). When judicial review is sought of both a BIA decision on the merits and a BIA decision on reconsideration, the two petitions for review must be consolidated and considered together. 8 U.S.C. 1252(b)(6). But nothing prevents a petitioner from seeking review of only one of the two BIA orders. See, e.g., Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir.1986) (only reviewing denial of motion to reconsider). . . . We review a BIA denial of a motion to reconsider for abuse of discretion. Pllumi v. Att'y Gen., 642 F.3d 155, 158 (3d Cir.2011). As a consequence, a petitioner who only seeks review of a BIA order on reconsideration forgoes any more favorable standard of review that might have applied had the petitioner sought review of the BIA's underlying decision on the merits. Esenwah, 378 F.3d at 765.).

MOTION TO REOPEN " DEPARTURE BAR
Prestol Espinal v. Attorney General of U.S., 653 F.3d 213 (3d Cir. Aug. 3, 2011) (departure bar to motion to reopen at 8 C.F.R. 1003.2(d) is ultra vires to 8 U.S.C. 1229a(c)(6)(A), (c)(7)(A)).

MOTION TO REOPEN SUA SPONTE " LIMITED JUDICIAL REVIEW
Pllumi v. Attorney General of U.S., __ F.3d __ (3d Cir. Apr. 6, 2011) (If the reasoning given for a decision not to reopen sua sponte reflects an error of law, we have the power and responsibility to point out the problem, even though ultimately it is up to the BIA to decide whether it will exercise its discretion to reopen.).

JUDICIAL REVIEW - PETITION FOR REVIEW - REVIEW OF BIA'S DENIAL OF MOTION TO REMAND
Vakker v. Att'y Gen., 519 F.3d 143 (3d Cir. Mar. 14, 2008) ("Certainly, orders denying motions to remand, like orders denying motions to reopen or reconsider, can qualify as independent final orders over which this court can, in appropriate circumstances, assume jurisdiction. See Korytnyuk v. Ashcroft, 396 F.3d 272, 279-83 (3d Cir. 2005); Shardar v. Attorney General, 503 F.3d 308, 311-12 (3d Cir. 2007); Cruz v. Attorney General, 452 F.3d 240, 246 (3d Cir. 2006); Sevoian v. Ashcroft, 290 F.3d 166, 169-75 (3d Cir. 2002).").

Fourth Circuit

JUDICIAL REVIEW - MOTION TO REOPEN - SUA SPONTE
Mosere v. Mukasey, 552 F.3d 397 (4th Cir. Jan. 12, 2009) (court lacks jurisdiction to review BIA refusal to grant sua sponte motion to reopen, since there are no meaningful standards by which to evaluate the decision).

JUDICIAL REVIEW - MOTION TO REOPEN - STANDARD OF REVIEW
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec. 9, 2008) ("The BIA's denial of a motion to reopen is reviewed for an abuse of discretion and should be reversed only if the decision is arbitrary, capricious, or contrary to law. Afanwi v. Mukasey, 526 F.3d 788, 794 (4th Cir.2008) (citing Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744-45 (4th Cir.2006)). "The BIA's denial of a motion to reopen is reviewed with extreme deference, given that motions to reopen are disfavored because every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." Barry, 445 F.3d at 744-45 (citing Stewart v. Immigration & Naturalization Serv., 181 F.3d 587, 596 (4th Cir.1999)) (internal quotations and punctuation omitted).").

MOTIONS TO REOPEN - DEPORTED NONCITIZENS
William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. 1003.2(d), containing the post-departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid.").

Fifth Circuit

MOTION TO REOPEN " DEPARTURE BAR
Lari v. Holder, 697 F.3d 273 (5th Cir. Sept. 27, 2012) (8 C.F.R. 1003.2(d), barring noncitizens from filing a motion to reconsider after their departure from the United States, is ultra vires to the INA).

REMOVAL PROCEEDINGS - POST-DEPARTURE BAR
Ovalles v. Holder, 577 F.3d 288 (5th Cir. Jul.27, 2009) (upholding 8 C.F.R. 1003.2(d) bar to filing motions to reopen and reconsider by noncitizens already deported from the United States), following Navarro-Miranda v. Gonzales, 330 F.3d 672, 675-76 (5th Cir. 2003). But see, William v. Gonzales, 499 F.3d 329, 331-34 (4th Cir. 2007); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314, 1317 (11th Cir. 2006); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. August 21, 2006).

Sixth Circuit

JUDICIAL REVIEW - SUA SPONTE MOTION TO REOPEN
Gor v. Holder, 607 F.3d 180 (6th Cir. Jun. 4, 2010) (the court suggested en banc review of earlier circuit decisions finding no jurisdiction to review denials of sua sponte motions to reopen, in light of Kucana v. Holder, 130 S.Ct. 827 (2010)).

MOTION TO REOPEN
Madrigal v. Holder, 572 F.3d 239 (6th Cir. Jul.9, 2009) (deportation by the government did not trigger automatic withdrawal, under 8 C.F.R. 1003.4, of appeal to BIA to review IJ denial of motion to reopen because respondent had not left of her own volition). ttp://www.ca6.uscourts.gov/opinions.pdf/09a0241p-06.pdf

Seventh Circuit

MOTION TO REOPEN " ILLEGAL REENTRY AFTER REMOVAL PERMANENTLY BARS REOPENING
Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. Oct. 15, 2013) (illegal reentry after 2005 removal, despite several procedural errors, permanently bars reopening that earlier removal order); citing 8 U.S.C. 1231(a)(5).

REMOVAL PROCEEDING " IN ABSENTIA ORDER " MOTION TO REOPEN
Smykiene v. Holder, 707 F.3d 785 (7th Cir. Feb. 13, 2013) (Immigration Judge and the BIA erred in allowing noncitizen who claimed not to have received notice to reopen her case; BIA failed to recognize its own distinction between providing notice, and receipt of notice).

REMOVAL PROCEEDING " IN ABSENTIA ORDER " MOTION TO REOPEN
Smykiene v. Holder, 707 F.3d 785 (7th Cir. Feb. 13, 2013) (Immigration Judge and the BIA erred in allowing noncitizen who claimed not to have received notice to reopen her case; BIA failed to recognize its own distinction between providing notice, and receipt of notice).

MOTION TO REOPEN " EQUITABLE TOLLING " DUE DILIGENCE
El-Gazawy v. Holder, 690 F.3d 852 (7th Cir. Aug. 16, 2012) (noncitizen failed to establish due diligence in establishing equitable tolling for ineffective assistance of counsel when filing untimely motion to reopen).

JUDICIAL REVIEW " SUA SPONTE MOTION TO REOPEN
Anaya-Aguilar v. Holder, 683 F.3d 369 (7th Cir. Jun. 14, 2012) (no jurisdiction to review BIA decision to deny sua sponte motion to reopen).

MOTION TO REOPEN " TOLLING
Sarmiento v. Holder, 680 F.3d 799 (7th Cir. May 21, 2012) (filing motion to reconsider does not toll 90-day deadline to file motion to reopen).

REMOVAL PROCEEDINGS " MOTION TO RECONSIDER
Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. Jul. 14, 2010) (BIA has jurisdiction to reconsider its decision after petitioners removal, because deportation from the United States is not equivalent to withdrawal of an application by voluntary departure from the United States and the INA specifically grants the BIA authority to reconsider or reopen its own decisions).

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

OVERVIEW - APPEAL & MOTION TO REOPEN
Sharashidze v. Mukasey, 542 F.3d 1177 (7th Cir. Sept. 8, 2008) (pending circuit court appeal does not toll 90-day time limit for filing motion to reopen with Board of Immigration Appeals).

Eighth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - NO JURISDICTION EXISTS TO REVIEW BIA'S DISCRETIONARY DENIAL OF SUA SPONTE REOPENING
Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. Mar. 11, 2008) (BIA's decision whether to reopen removal proceedings sua sponte is discretionary, under 5 U.S.C. 701(a)(2), so the circuit court lacks jurisdiction to review it).

MOTION TO REOPEN - NEW EVIDENCE MUST BE SHOWN NOT ONLY TO BE MATERIAL BUT UNAVAILABLE AND UNDISCOVERABLE PRIOR TO CONCLUSION OF REMOVAL PROCEEDINGS
Ivanov v. Gonzales, ___ F.3d ___ (8th Cir. April 24, 2007) (IJ abused discretion by granting DHS motion to reopen pursuant to 8 C.F.R. 1003.23(b)(3) because DHS failed to establish that the evidence submitted with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of removal proceedings).

Ninth Circuit

MOTION TO REOPEN " INEFFECTIVE ASSISTANCE
Salazar-Gonzales v. Lynch, 798 F.3d 917 (9th Cir. Aug. 20, 2015) (noncitizen entitled to equitable tolling on untimely motion to reopen due to prior counsels advice to pursue a form of immigration relief for which the noncitizen was statutorily ineligible; counsels incorrect advice that client could pursue consular processing caused noncitizen to forego right to appeal).

MOTION TO REOPEN REMOVAL PROCEEDINGS " CONVENTION AGAINST TORTURE
Go v. Holder, 744 F.3d 604 (9th Cir. Mar. 7, 2014) (the specific time and number limitations on motions to reopen, 8 C.F.R. 1003.2(c), apply to motions to reopen that arise under the Convention Against Torture).

JUDICIAL REVIEW " EXHAUSTION " MOTION TO REOPEN NOT REQUIRED
Arsdi v. Holder, 659 F.3d 925, 930 (9th Cir. Oct. 24, 2011) (As the government points out, an alien may also move for reconsideration or reopening of the IJs decision. See 8 U.S.C. 1229a(c)(6)-(7). Because these motions are not remedies available to the alien, as of right, an alien need not use them in order to exhaust his claim. 8 U.S.C. 1252(d)(1). However, these multifarious methods of review highlight the import Congress placed on allowing the agency to correct its own mistakes prior to interference by the federal courts.).

REMOVAL PROCEEDINGS " MOTION TO REOPEN "TIME LIMITATION
Vega v. Holder, 611 F.3d 1168, 1171 (9th Cir. Jul. 19, 2010) (petitioners motion to reopen denied as untimely, where motion to reopen had to be filed within 90 days of a final administrative order of removal and here the final order of removal is the final administrative decision, rendered in the proceeding sought to be reopened, which is the BIAs initial merits determination, not the denial of petitioners motion to reconsider.).

REMOVAL PROCEEDINGS " MOTION TO REOPEN
Hernandez-Velasquez v. Holder, 611 F.3d 1073 (9th Cir. Jul. 14, 2010) (denial of motion to reopen reversed where respondent did not receive BIA decision affirming removal order despite mailing change of address form to BIA; sworn affidavit was sufficient to establish change of address was mailed).

JUDICIAL REVIEW - MOTION TO REOPEN REMAINS PENDING DESPITE PHYSICAL REMOVAL OF PETITIONER BY UNITED STATES
Coyt v. Holder, 593 F.3d 902 (9th Cir. Jan. 20, 2010) (involuntary physical removal of petitioner by the United States did result in automatic withdrawal of motion to reopen; 8 C.F.R. 1003.2(d) is ultra vires to the INA as applied to noncitizens removed from the U.S. by the DHS). The court reasoned that the regulation "would completely eviscerate the statutory right to reopen provided by Congress if the agency deems a motion to reopen constructively withdrawn whenever the government physically removes the petitioner while his motion is pending." The court declined to decide whether the regulation would be valid if the person departed voluntarily or was not "physically removed." (It is not clear what the court meant by "physically removed" and what constitutes an "involuntary removal," but in this case, the petitioner had filed a motion to stay removal with the BIA, but he was removed before the BIA had ruled on it.) Further, the courts reasoning should apply to permit the adjudication of a motion to reopen filed after a person is deported. The Ninth Circuit is the third court to address the validity of the regulation vis--vis the motion to reopen statute. See also William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (striking down regulation); Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (upholding regulation). The BIA also has weighed in, affirming the application of the departure bar in Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008). The American Immigration Council and the National Immigration Project have been working with petitioners to challenge the validity of the regulation. We recently filed a brief in the Ninth Circuit in a case which may address some of the unresolved issues in Martinez Coyt and also are litigating this issue in the Sixth Circuit. Please contact clearinghouse@immcouncil.org if you have a case raising this issue.

MOTION TO REOPEN - VOLUNTARY DEPARTURE
Nevarez v. Holder, 572 F.3d 605 (9th Cir. Jul. 8, 2009) (remand to BIA to address how to treat noncitizens with grants of voluntary departure and who have filed motions to reopen in cases pending when Dada v. Mukasey, __U.S.__, 128 S.Ct. 2307 (Jun. 16, 2008) (noncitizens who file motion to reopen must request withdrawal of voluntary departure) was decided).

MOTION TO REOPEN - SECOND MOTION
Nevarez v. Holder, 572 F.3d 605 (9th Cir. Jul. 8, 2009) (remand to BIA to address the issue of whether a subsequent request to consider motion to reopen sua sponte is barred under INA 240(c)(7)(A) if the first motion was rejected as untimely and not fully considered by the BIA).

OVERVIEW - MOTION TO REOPEN
Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. Nov. 19, 2008) ("[W]e hold that when the DHS opposes a motion to reopen for adjustment of status, the BIA may consider the objection, but may not deny the motion based solely on the fact of the DHSs objection.").

MOTION TO REOPEN
Doissaint v. Mukasey, 538 F.3d 1167 (9th Cir. Aug. 18, 2008) (BIA cannot cure legal error in denial of petitioners motion to reopen, since motions to reopen are only for consideration of new evidence; to cure error BIA should have reconsidered original claim on the merits).

MOTION TO REOPEN - FILING PETITION OF REVIEW IN CIRCUIT COURT DOES NOT TOLL STATUTORY TIME LIMIT FOR FILING MOTION TO REOPEN
Dela Cruz v. Mukasey, 532 F.3d 946 (9th Cir. Jul. 9, 2008) (filing petition for review with circuit court does not toll statutory time limit for filing motion to reopen/reconsider with the BIA).

Tenth Circuit

MOTION TO REOPEN REMOVAL PROCEEDINGS " POST-DEPARTURE BAR INVALID
Contreras-Bocanegra v. Holder, ___ F.3d ___, 2012 WL 255879 (10th Cir. Jan. 30, 2012) (en banc) (8 C.F.R. 1003.2(d), prohibiting respondent from moving to reopen removal proceedings after departure from the United States, impermissibly interferes with Congress' clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. 1229a(c)(7)); overturning Roussillon"Puga v. Holder, 580 F.3d 1147, 1156 (10th Cir.2009) (upholding post-departure bar as an authorized exercise of the Attorney General's rulemaking authority).

REMOVAL PROCEEDINGS - POST-REMOVAL MOTION TO REOPEN
Mendiola v. Holder, 585 F.3d 1303 (10th Cir. Oct. 28, 2009) (post-departure bar contained in 8 C.F.R. 1003.2(d) divested BIA of jurisdiction to review a motion to reopen, even though it was filed within 90 days of the order of deportation).

REMOVAL PROCEEDINGS - MOTION TO RECONSIDER OR REOPEN - AFTER REMOVAL
Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. Sept. 15, 2009) (8 C.F.R. 1003.23(b)(1), barring motions to reopen filed by noncitizens who have already departed the United States, is a valid exercise of the Attorney General's Congressionally-delegated rule-making authority, and does not violate 8 U.S.C. 1229a(c)(6)(A) or (7)(A)). But see Lucero's dissent: "Todays majority ruling creates a circuit split, rests on a dubious interpretation of 1229a(c)(6)(A) and (7)(A), disregards the clear import of Dada, and imagines a conflict between two portions of the regulation before us when there is none."

Eleventh Circuit

REMOVAL PROCEEDINGS " MOTION TO REOPEN " DEPARTURE BAR
Lin v. U.S. Atty General, 681 F.3d 1236 (11th Cir. May 23, 2012) (the departure bar regulation, 8 C.F.R. 1003.2(d)"stating that the BIA may not entertain a motion to reopen filed by or on behalf of a person who has departed the United States"impermissibly conflicts with INA 240(c)(7)(A), 8 U.S.C. 1229a(c)(7)(A), which permits an alien to file one motion to reopen); accord, Contreras"Bocanegra v. Holder, 2012 WL 255879 (10th Cir. 2012) (en banc); Prestol Espinal v. Att'y Gen., 653 F.3d 213 (3d Cir. 2011); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007).

MOTION TO REOPEN - BIA
Cisneros v. U.S. Attorney Gen., __ F.3d __, 2008 WL 217364 (11th Cir. Jan. 28, 2008) (BIA abused its discretion in failing to examine exceptional circumstances in denying the motion to reopen).

Other

POST CON " MOTION TO REOPEN SUA SPONTE AFTER VACATED CONVICTION
The Board has frequently granted motions to reopen, sua sponte, after a conviction has been vacated. E.g., In Re: Jose Noel Meza-Perez A.K.A. Jose Noel Perez, 2011 Wl 899604 (BIA 2011) (unpublished) (The sole conviction underlying the respondent's removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(E)(i) (crime of domestic violence), has been vacated due to a defect in the criminal proceedings. The Board, therefore, will grant the respondent's motion sua sponte and terminate the proceedings.); In Re: Cesar Gomez-Rivas A.K.A. Cesar Gomez A.K.A. Cesar Rivas Gomez, : A041 830 317 - IMP, 2011 WL 4730892, at *1 (BIA 2011) (unpublished) (reopening an untimely motion to reopen after the respondent was deported because the conviction that formed the basis for the deportation was vacated on a legally invalidity); In Re: Francisco Antonio Jimenez Dilone A.K.A. Francisco Jimenez A.K.A. Franciso Jimenez A.K.A. Franciso Antonio Jimenez-Dilone, : A039 093 312 - BOS, 2009 WL 422063, at *1-2 (BIA 2009) (unpublished) ( Given this new evidence [regarding the vacatur of a conviction], we find that sua sponte reopening is appropriate despite the time bar, and will reopen proceedings and remand the record to the Immigration Judge.); In Re: Ignacio Javier Perez-Hernandez A.K.A. Javier Ignacio Perez, Jr. A.K.A. Ignacio Hernandez, : A092 259 726 - LOS, 2013 WL 3899855, at *1 (BIA July 18, 2013) (unpublished) (The evidence offered with the motion reveals that on Apr. 6, 2011, the criminal court granted the respondent's motion, pursuant to California Penal Code section 1016.5, to vacate the conviction underlying his removability, and permitted him to plead to a lesser offence. See Motion Tab F. California Penal Code section 1016.5 requires that a criminal defendant must be advised of the potential immigration consequences of entering a plea of guilty prior to entering the plea. Inasmuch as the conviction underlying the sole basis of the respondent's removability has been vacated due to a substantive defect in the criminal proceedings, reopening is warranted. See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003); Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000).)(emphasis supplied). See also Mendiola v. Holder, 576 F. App'x 828, 835-36 (10th Cir. 2014) (unpublished); Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya"Aguilar v. Holder, 697 F.3d 1189 (7th Cir.2012); Pllumi v. Attorney Gen. of U.S., 642 F.3d 155, 160 (3d Cir. 2011); Mahmood v. Holder, 570 F.3d 466, 470 (2d Cir. 2009). Thanks to Stacy Tolchin.

POST CON RELIEF " MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER OBTAINING POST-CONVICTION RELIEF
If a respondent has obtained post-conviction relief in the court of conviction, respondent can ask the immigration judge or Board of Immigration Appeals sua sponte to reopen removal proceedings based upon a gross miscarriage of justice. There is a line of cases in the Ninth Circuit (Cardoso-Tlaseca v. Gonzalez, 460 F.3d 1103 (9th Cir. 2006); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990)) that supports the argument that if the prior conviction was vacated on constitutional grounds, the removal was illegal and ought not to stand. Where the prior conviction was later found by the Ninth Circuit in a criminal proceeding not to have supported the ground of removal, the immigration courts could follow the same procedure, but the argument will be different. The argument would be stronger if the IJ was wrong from the beginning about the law, as opposed to a situation in which the law has evolved since the original removal order and is now favorable. Thanks to Maria Andrade.

REMOVAL PROCEEDINGS " MOTION TO REOPEN " POST-DEPORTATION HUMAN RIGHTS PROJECT
Post-Deportation Human Rights Project http://www.bc.edu/centers/humanrights/projects/deportation.html

MOTION TO REOPEN - AFTER DEPARTURE FROM UNITED STATES
The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judges decision final and bar any motion to reopen or reconsider. 8 C.F.R. 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase "is the subject of"); Contreras-Rodriguez v. United States Atty Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin.

REMOVAL PROCEEDINGS - RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL - REGULATIONS
Although 8 C.F.R. 1208.4(a)(5)(iii) mirrors Lozada, one could argue that it codifies its formal requirements for corroboration and bar regulation purposes, but does not rely on Lozada's jurisprudential rationale for existence. Extraordinary circumstances exceptions need only be "directly related" to the delay in filing. A lawyer's incompetence need not attach to any right to representation to be "directly related" to the delay in failure to file. The other exceptions are recognized as "directly related" to delay but are not tied to constitutional or statutory rights (no right to good health in the U.S. or against tragic family deaths). Thanks to Eric Berndt.