Crimes of Moral Turpitude


§ 10.30 V. Reopening Proceedings After a Conviction Has Been Vacated

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Third Circuit

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.).