In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[300]   Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.[301] 

 

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.[302]  The circuit courts are split on this issue.[303] 

A deportation proceeding may also be reopened, even after a criminal conviction has initially become final, if a criminal court accepts a late appeal of the criminal conviction.  The conviction is then on direct appeal, and therefore nonfinal, and thus is no longer a sufficient basis on which to ground a deportation or removal order.[304]

 

PRACTICE POINTER: The rules limiting motions to reopen must be consulted in this connection.[305]  See Post-Deportation Human Rights Project, Practice Advisory, filing Post-Deportation Motions to Reopen or Reconsider, www.bc.edu/postdeportation.

 

[300] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971) (orderly administration of justice precluded examination of validity of a conviction, but case was remanded when sentence vacated); Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967); Ordaz-Machado v. Rivkind, 669 F.Supp. 1068, 1070 (S.D. Fla. 1987) (deportation order may be based on conviction unless it is vacated in a post-conviction motion).  But see Cruz-Godonez v. Ashcroft, 40 Fed.Appx. 565 (9th Cir. 2002) (court of appeals lacked jurisdiction to reopen deportation order, since respondent had been deported for an aggravated felony, even though sentence upon which deportation order was based had later been reduced by state court, since respondent was an aggravated felon at the time of his removal).

[301] Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes); Cruz v. Att’y Gen. of the US, 452 F.3d 240 (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).  But see De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”); Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated).

[302] Matter of GNC, 22 I. & N. Dec. 281, 288 (BIA 1998).

[303] Compare 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."); 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 s/he ‘is the subject of removal … proceedings.’”; once a person leaves the United States, s/he 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); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (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), relying on 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 are not legally valid, and thus do not bar motions to reopen); 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); with Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”); Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

[304] See Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[305] 8 C.F.R. § § 1003.2(c)(2), 1003.23(b)(4)(i).

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

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).

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).

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)).

Third Circuit

POST CON RELIEF " REMOVAL PROCEEDINGS " RETURN TO THE UNITED STATES
Orabi v. Attorney General of the U.S., 738 F.3d 535, 528 (3d Cir. Jan. 2, 2014) (even after deportation, the Government was prepared to return noncitizen to the United States under certain circumstances pursuant to ICE regulations); see ICE Policy, 11061.1(2) (Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings.); see also 8 U.S.C. 1229a(b)(2)(A) (requiring an immigrant's presence at a removal hearing absent the parties' consent or a telephonic or video conference).

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).

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.).

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).").

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

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).

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).

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.).

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).

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).

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).

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

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.