(A)

Motions to Reopen.  After the Immigration Judge issues a final order of removal, either party may 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.[159]  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.[160]  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.

[159] 8 C.F.R. § 1003.23(b).

[160] 8 C.F.R. § 1003.23(b)(3).

Ninth Circuit

POST CON RELIEF " VACATUR " MOTION TO REOPEN " BIA FREQUENTLY GRANTS MOTION TO REOPEN SUA SPONTE AFTER VACATUR REMOVES BASIS FOR REMOVAL
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte under 8 C.F.R. 1003.2(a); cf. In re Rodriguez"Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (concluding that a conviction vacated on the merits cannot form the basis for an alien's removal). The Board regularly grants such requests when the alien's underlying conviction has been vacated due to a substantive or procedural defect in the original criminal proceedings, concluding that such a change in the facts constitutes exceptional circumstances justifying further review of the alien's case.) (footnote omitted).