IndiaPost.com - Appeals to Board of Immigration for second circuit

(Continued from last week's article)

6. Time and Numerical Limitations to Motions.

A motion to reopen or reconsider may be made before the IJ, 8 CFR §1003.23 or the BIA, 8 CFR §1003.2. A motion to reopen must be filed no later than 90 days from the date on which the final administrative decision was rendered. 8 CFR § 1003.2 (c)(2); and a motion to reconsider must be filed "within 30 days after mailing the of the Board decision," 8 C.F.R. 1003.2(b)(2).

The same timeline applies to motions before the IJ. 8 CFR §1003.23(b)(1). A motion to reconsider is on legal grounds alone. It is a "request that the BIA examine its decision in light of additional legal arguments, a change in law, or perhaps and argument or aspect of the case which was overlooked." Matter of Ramos, 23 I&N Dec. 336 (citing Matter of Cerna). A motion to reopen is on factual grounds and must be supported by affidavits or other evidentiary materials.

8 CFR §1003.2(c)(1). The applicant must show that the evidence was 1) material, 2) unavailable at time of hearing and 3) could not have been discovered or presented at original hearing. 8 CFR §§ 1003.2(c)(1). One court has held that the supporting evidence for a motion to reopen need not be filed simultaneously with the motion. Yeghiazaryan v. Gonzales, 439 F.3d 994 (9th Cir.2006). An ineffectiveness claim against counsel will be treated as a motion to reopen, Matter of Lozada, 19 I &N Dec. 637, and the production of new evidence is not required. However, it is still important to show that counsel's neffectiveness was prejudicial.

7. Exceptions to Time and Numerical Limitations.

Even if a motion is time or numerically barred, the relevant exceptions for this CLE are Changed ircumstances, Sua Sponte and ineffective assistance of counsel. An asylum applicant may, at any time, move to reopen his/her case "based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." 8 CFR §1003.2(c)(3)(ii)(2003).

BIA abused its discretion in denying motion to reopen as IJs and BIA have duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim. Poradisova v. Gonzales, 420 F.3d 70 (Where Jewish applicants from Belarus submitted reports from the DOS and international organizations that demonstrated that hostility to Jews had worsened since the decision, the BIA abused its discretion in not reopening).

The BIA may sua sponte reopen the proceedings. 8 CFR §1003.2(a). This authority may only be used in exceptional circumstances. Matter of J-J, 21 I&N Dec. 976 (BIA 1997). Ineffective assistance of counsel can also result in equitable tolling. Iovarski v. INS, 232 F.3d 124 (2d Cir. 2000)(finding that 90 day time limitation may be equitably tolled because it is not jurisdictional but denying tolling on facts of the case because Respondent did not act with due diligence).

8. Effect of Removal.

Pursuant to regulation, "A motion to reopen or a motion to reconsider shall not be made by . . . a person who is the subject of . . . removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the . . . removal of a person who is the subject of . . . removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion."

8 C.F.R. § 1003.2(d). A stay of removal may be requested from the BIA pending disposition of the motion (stays are automatic for motions to reopen in absentia orders, but not otherwise). "[T]hough the BIA has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the motion states nonfrivolous grounds for reopening." Dada v. Mukasey, _ S. Ct. ___, 06-1181, 2008 WL 2404066 (June 16, 2008), slip op. at 19. A. United States Court Of Appeals For The Second Circuit (Second Circuit)

9. Petition for Review.

The Court of Appeals can review through a petition for review a final removal order of the BIA, which includes a final order denying asylum in "asylum-only proceedings" (proceedings against an alien who entered on the Visa Waiver Program and gave up the right to contest removal except by applying for asylum, withholding, or CAT relief). Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006). A PFR "must be filed not later than thirty days after the date of the final order" of removal or the final order of exclusion or deportation. INA §242(b)(1).

This deadline is "mandatory and jurisdictional" and is not subject to equitable tolling. A PFR can also be filed over the denial of a motion to reopen or reconsider, but such a PFR will not preserve the underlying issues arising from the original denial. Often, one must file two PFRs, one over the BIA decision and the second over the denial of a motion to reopen or reconsider. A PFR must include a copy of a final administrative order and state whether any court has upheld the validity of the order, and if so, provide the necessary details, ie. which court, date of ruling and type of proceeding. INA §242(c). The PFR must be filed in court of appeals where the IJ completed the proceeding. Effective April 9, 2006, the filing fee is $450. In the Second Circuit, the original plus three bound copies and one unbound copy (for ease of scanning by the clerk) must be filed.

10. Service of the Petition for Review.

The petition must be served on the Attorney General and the local Field Office Director of ICE (Immigration and Customs Enforcement). It should also be served on the Office of Immigration Litigation ithin the Department of Justice in Washington D.C., as a courtesy, since they are the attorneys who will actually be handling the case for the government.

11. Limitation on Jurisdiction.

Although INA §208(a)(3) states, with respect to the 1 year deadline and the exceptions based on changed circumstances or extraordinary circumstances, that "[n]o court shall have jurisdiction to review any determination of the Attorney General, the Real ID Act of 2005 amended INA § 242(a)(2)(D) to provide that "nothing in …any…provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." Xiao Ji Chen v. US DOJ, 471 F.3d 315 (2d Cir. 2006). The issues reviewable under this provision are "the same types of issues that courts traditionally [addressed] in habeas review over Executive detentions." Id. at 326-327.

(To be continued)