8 C.F.R. § 1003.2

Section 1003.2 does not require corroborative evidence in addition to a credible affidavit to support a motion to reopen or reconsider.

Patatanyan v. Ashcroft · filed 2004-02-11

Although the relief that the Patatanyans seek does not perfectly track the standards set forth in 8 C.F.R. § 1003.2 for either a motion to reopen or a motion to reconsider, these regulations have not been interpreted to require corroborative evidence in addition to a credible affidavit.

Section 1003.2 limits reopening to one motion within 90 days, limits reconsideration to one motion within 30 days, and leaves sua sponte reopening or reconsideration to the BIA’s unreviewable discretion.

Woldiger v. Atty Gen USA · filed 2003-10-07(c)(2), (b)(2), (a)

Motions for reconsideration are similarly subject to strict limitations and “must be filed with the Board within 30 days after the mailing of the Board decision . . . [and a] party may only file one motion to reconsider any given decision.” 8 C.F.R. § 1003.2(b)(2). ... Both 8 U.S.C. § 1229a(c)(6) and 8 C.F.R. § 1003.2(c)(2) expressly limit aliens to one motion to reopen removal proceedings, which must be filed within 90 days of the BIA’s final order. ... Because 8 C.F.R. § 1003.2(a) grants the BIA precisely such unfettered discretion over whether to grant a sua sponte reopening, its refusal to exercise this authority is unreviewable.

The regulation gives the BIA broad discretion to deny motions to reconsider and requires such motions to identify factual or legal errors and support them with pertinent authority.

Garcia-Rodriguez v. Ashcroft · filed 2003-11-26(a) (b)

The BIA has wide latitude to deny a motion to reconsider. See 8 C.F.R. § 1003.2(a). Parties filing such a motion “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall [support it by reference to] pertinent authority.” 8 C.F.R. § 1003.2(b). We review a denial of a motion to reconsider for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). In their motion to reconsider, Garcia-Rodriguez and Espinoza-Gomez failed to raise any cognizable errors of fact or law of the BIA’s summary dismissal. Therefore, the BIA did not abuse its discretion when it denied this motion.

Section 1003.2(c)(1) permits reopening only when the proffered evidence is material and was unavailable and could not have been discovered or presented at the prior hearing.

Ordonez v. Immigration and Naturalization Service · filed 2003-10-02(c)(1)

A motion to reopen is the proper way to introduce previously unavailable evidence. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.... ”).

Section 1003.2(c)(1) requires a motion to reopen to state new facts and be supported by affidavits or other evidentiary material; subsection (c)(3)(ii) permits a later motion based on materially changed country conditions for asylum or withholding of deportation.

Singh v. Board of Immigration Appeals · filed 2003-10-09(c)(1), (c)(3)(ii)

We hold that the BIA did not abuse its discretion when it denied Petitioner’s motion because it was not supported by “affidavits or other evidentiary material.” See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing____”). Accordingly, we dismiss the petition for review. ... Our decision, of course, does not prejudice Petitioner’s right to file a new motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(3)(ii) (providing an exception to the rule that an alien may submit only one motion to reopen and that an alien must do so within 90 days of a final decision, where an alien files a motion to reopen “[t]o apply or reapply for asylum or withholding of deportation 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.”).

Section 1003.2(c)(3)(h) permits an otherwise untimely motion to reopen an asylum or withholding application when it is based on changed country conditions that could not have been discovered or presented at the prior hearing.

Zheng v. Ashcroft · filed 2004-02-24(c)(3)(h)

A motion to reopen to apply or reapply for asylum or withholding may be filed at any time if it is based on changed country conditions that could not have been discovered or presented at the prior hearing. 8 C.F.R. § 1003.2(c)(3)(h); 8 U.S.C. § 1229a(e)(6)(C)(ii).

Section 1003.2(c)(3)(ii) creates a narrow exception to the 90-day deadline for motions to reopen based on changed circumstances in the country of nationality or designated removal country, not changes in United States asylum law.

Azanor v. John Ashcroft, United States Attorney General · filed 2004-04-01(c)(3)(ii)

Ordinarily, petitioners must file motions to reopen deportation proceedings within ninety days of the date on which the final administrative decision was rendered. ... This general time limit is inapplicable, however, to motions filed for the purpose of applying or reapplying “for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered.” ... As the Board correctly determined, Aza-nor’s motion satisfies neither the general requirements of subsection 3.2(c)(2) nor subsection 3.2(c)(3)(ii)’s conditions for exceptional relief. ... By expressly restricting subsection 3.2(c)(3)(ii) to motions “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered,” 8 C.F.R. § 3.2(c)(3)(ii) (emphasis added), the INS established a limited exception to the general ninety-day rule, which by its plain terms does not apply to changed circumstances in United States asylum law. ... We conclude, therefore, that the Board did not abuse its discretion by holding that Azanor’s motion to reopen failed to satisfy subsection 3.2(c)(3)(ii).

Section 1003.2(c)(2) limits an alien subject to a final order of removal to one motion to reopen, which must be filed within 90 days after the final order.

Lopez v. Holder · filed 2009-03-09(c)(2)

An alien who is subject to a final order of removal is limited to filing one motion to reopen removal proceedings, and that motion must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Petitioners’ final orders of removal were entered on November 29, 2007. Because petitioners’ motion to reopen was filed on July 7, 2008, beyond the 90-day deadline, and petitioners have not contended that any exceptions to this time limit apply, the BIA did not abuse its discretion in denying their motion to reopen as untimely.

Section 1003.2(c)(2) imposes a 90-day limitations period for motions to reopen; a motion filed about a year after the movant learned of the claim remains untimely even assuming equitable tolling.

Atoyan v. Ashcroft · filed 2003-11-04(c)(2)

We conclude that the BIA did not abuse its discretion in denying Atoyan’s motion to reopen. Substantial evidence supports the BIA’s finding that Atoyan became aware of the existence of her claim during November 1999, and she did not file the motion to reopen until approximately a year later, well after the 90-day limitations period had expired.

Section 1003.2(c)(1) requires a motion to reopen to present evidence that was unavailable and could not have been discovered or presented earlier, and subsection (c)(2) requires filing within 90 days after the final administrative decision.

De Zevallos v. Immigration & Naturalization Service · filed 2003-12-01(c)(1), (c)(2)

To prevail on a motion to reopen, Petitioner must demonstrate that the evidence she seeks to introduce was not available and could not have been discovered or presented at the initial evidentiary hearing. See 8 C.F.R. § 1003.2(c)(1); Bolshakov v. INS, 133 F.3d 1279, 1282 (9th Cir.1998). ... Nor did the BIA abuse its discretion in denying Petitioner’s motion to remand as time-barred. A motion to remand is treated like a motion to reopen. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir.2003) (en banc) (amended on rehearing). Such motions must be filed within 90 days after the date on which the final administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2). Petitioner’s motion to remand was filed over 90 days after the immigration judge’s ruling denying her asylum. The BIA did not abuse its discretion in denying the motion as untimely. See 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) requires a motion to reopen to be filed no later than 90 days after the final administrative decision in the proceeding sought to be reopened.

Escobar-Avila v. Ashcroft · filed 2004-02-26(c)(2)

The BIA did not abuse its discretion because Escobar-Avila did not file her motion to reopen with the BIA until more than ninety days after the BIA’s dismissal of her appeal. See 8 C.F.R. § 1003.2(c)(2) (a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days, but the deadline may be equitably tolled when ineffective assistance of counsel prevents timely filing and the petitioner acts diligently.

Singh v. John Ashcroft, Attorney General · filed 2004-05-18(c)(2)

When properly characterized as a motion to reopen, Singh’s motion was filed one day late. See 8 C.F.R. § 3.2(c)(2) (2002) (motion to reopen must be filed within 90 days). ... We held in Iturribarria that the BIA should have tolled the 90-day filing period for a petitioner seeking to reopen on the basis of ineffective assistance of counsel. ... We hold that the BIA abused its discretion in refusing to toll the filing deadline, and that Singh’s motion to reopen was therefore timely filed.

Section 1003.2(c)(1) allows an alien ordered excluded in absentia to seek reopening and rescission for reasonable cause for failing to appear, supported by affidavits or other evidence.

Tan v. McElroy · filed 2003-11-06(c)(1)

An alien ordered excluded in absentia may move to reopen and rescind the order on a showing of “reasonable cause” for failure to appear, see Matter of Haim, 19 I. & N. Dec. 641, 642, 1988 WL 235452 (BIA 1988), supported by affidavits or other evidence, see 8 C.F.R. § 3.2(c)(1) (2000) (recodified at 8 C.F.R. § 1003.2(c)(1) (2003)).

Section 1003.2(c)(1) requires evidence supporting a motion to reopen to be material and unavailable, and not discoverable or presentable at the former hearing.

Adamian v. Immigration & Naturalization Service · filed 2003-12-16(c)(1)

Moreover, the petitioners have not demonstrated that they have met the unavailability or materiality requirements for a motion to reopen. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. ...”).

Section 1003.2 makes motions to reopen discretionary rather than remedies available as of right, allowing the Board to deny one even when the movant has established a prima facie case for relief.

Louis-Martin v. Ridge · filed 2004-03-05

A motion to reopen is not a remedy available as a right; it is completely discretionary relief. See 8 C.F.R. § 1003.2 (stating that the Board of Immigration Appeals “has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief.”).

Section 1003.2(c)(1) requires a motion to reopen to state the new facts the applicant seeks to prove and to be supported by affidavits or other new evidentiary material.

Singh v. Ashcroft · filed 2004-04-27(c)(1)

A motion to reopen must state the new facts an applicant seeks to prove and be supported by affidavits or other new evidentiary material. 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(2) generally limits a party to one motion to reopen, but the limit does not apply to motions covered by paragraph (c)(3).

Yilmaz v. Ashcroft · filed 2003-11-13(c)(2)

While 8 C.F.R. § 1003.2(c)(2) does generally limit parties to one motion to reopen in proceedings, certain motions are expressly excepted from that regulation. The applicable section begins, “Except as provided in paragraph (c)(3) of this section ...” 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(d) bars a motion to reopen after departure and treats departure after filing as withdrawal of the pending motion.

De Martinez v. Ashcroft · filed 2004-04-16(d)

Under DHS regulations, any departure from the United States precludes an alien from filing a motion to reopen and constitutes a withdrawal of any pending motion to reopen. 8 C.F.R. § 1003.2(d).

Section 1003.2(b)(1) requires a motion for reconsideration to specify errors of fact or law in the prior Board decision and include pertinent supporting authority.

Sswajje v. John Ashcroft, Attorney General · filed 2003-11-21(b)(1)

BIA regulations authorize a motion for reconsideration of a BIA decision and provide that such a motion “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). ... The BIA did not abuse its discretion in denying Sswajje’s motion for reconsideration because the motion alerted the BIA to no legal or factual arguments that had not already been presented to the BIA in response to the INS’s motion for summary dismissal of the untimely appeal of the immigration judge’s order.

Section 1003.2(b)(1) requires a motion to reconsider to specify errors of fact or law in the prior Board decision and support the motion with pertinent authority.

Kui Rong Ma v. John Ashcroft, Attorney General · filed 2004-03-15(b)(1)

A petitioner’s motion to reconsider must identify a legal or factual error in the BIA’s prior decision. See 8 C.F.R. § 1003.2(b)(1) (2003) (stating that the motion “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority”); see also Matter of Cema, 20 I. & N. Dec. 399, 402 (BIA 1991) (stating that a motion to reconsider “questions the Board’s decision for alleged errors in appraising the facts and the law”; when the BIA reconsiders a decision, it considers the case as though a decision had never been entered).

Section 1003.2(c)(1) requires a motion to reopen proceedings to be supported by affidavits or other evidentiary material.

Lipilina v. Immigration & Naturalization Service · filed 2004-01-09(c)(1)

The regulations provide that “[a] motion to reopen proceedings shall . . . be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). The BIA found that the brief submitted by Lipilina did not include any affidavits or other evidentiary material, and, therefore, it failed to meet the regulatory requirements for a motion to reopen. Lipilina does not challenge this finding. In fact, she concedes in her brief before this court that “counsel failed to support [the allegations in the Motion to Reopen] with affidavits or other materials having evidentiary value.” Pet’s Br. at 28. Accordingly, the BIA did not abuse its discretion in denying the Motion to Reopen.

The changed-country-conditions exception permits an applicant to move to apply or reapply for asylum or withholding without the usual time and number limits when the supporting evidence is material and was previously unavailable and could not have been discovered or presented at the prior hearing.

Seving v. Ashcroft · filed 2004-01-15(c)(3)(ii)

It is also clear that the changes in Afghanistan between 1993 and 2002 were material to Seving’s claim: the intervening rise of the Taliban was crucial to Seving’s claims that she feared persecution both because she was a woman who had adopted Western customs, a clear anti-Taliban political statement, and because of her ethnicity. We therefore find that Seving has established that she meets the exception in 8 C.F.R. § 3.2(c)(3)(ii), and that the BIA abused its discretion when it found Seving’s motion to reopen to be time or number-barred.

Section 1003.2(a) preserves the Board's discretion to deny a motion to reopen even when the movant has made out a prima facie case for relief.

Mabikas v. Immigration & Naturalization Service · filed 2004-02-19(a)

Even if those two requirements are met, the BIA may still exercise its discretion to deny relief. Id.; Abudu, 485 U.S. at 105; see 8 C.F.R. § 1003.2(a) (2004) (“The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”).

Section 1003.2(a) gives the BIA discretion to reopen proceedings, and its denial of reopening is upheld absent an abuse of that discretion.

Luswata v. Ashcroft · filed 2004-05-13(a)

After careful consideration, we conclude that the BIA did not abuse its discretion in denying the motion, see 8 C.F.R. § 1003.2(a) (BIA has discretion to reopen), because Luswata had not shown that the new evidence “was not available and could not have been discovered or presented at the [removal] hearing,” 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(b)(3) bars a motion to reconsider based solely on an argument that the case should not have been affirmed without opinion by a single Board Member or a three-Member panel.

Cindulet v. Atty Gen USA · filed 2004-02-19(b)(3)

Under 8 C.F.R. § 1003.2(b)(3), “[a] motion to reconsider based solely on an argument that the case should not have been affirmed without opinion by a single Board Member, or by a three-Member panel, is barred.”

Section 1003.2(c)(2) permits only one motion to reopen, and an alien cannot evade that limit by labeling a successive motion as sua sponte.

Stanislaw Pilch and Zofia Pilch v. John Ashcroft, Attorney General of the United States · filed 2004-02-24(c)(2)

Although only one motion to reopen is permitted, see 8 U.S.C. § 1229a(b)(6)(A); 8 C.F.R. § 1003.2(c)(2), the Pilches (who had filed two already) then filed two more. ... These petitions are summarily dismissed. The statute does not allow aliens to file successive motions to reopen, and adding the words “sua sponte” to a successive motion does not change its character.

Section 1003.2(c)(2) permits reopening only when the offered evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Bhoja v. Ashcroft · filed 2004-03-05(c)(2)

The BIA’s denial of Bhoja’s motion to reopen was similarly reasonable. Motions to reopen “shall not be granted unless it appears to the BIA that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(2). Thus, Bhoja was required to submit new evidence showing a change of circumstances in India that would justify reopening his case.

Section 1003.2(c)(1) requires a motion to reopen to be supported by affidavits or other evidentiary material.

Kumar v. Ashcroft · filed 2004-03-23(c)(1)

In addition, the BIA did not abuse its discretion in denying the motion to reopen because it was not supported by “affidavits or other evidentiary material.” See INS v. Wang, 450 U.S. 139, 143, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam); see 8 C.F.R. § 1003.2(c)(1) (formerly 8 C.F.R. § 3.2(c)(1)).

Subsection (c)(2) requires a motion for reconsideration to be filed within 30 days after the underlying decision is mailed.

De Esquivel v. Ashcroft · filed 2004-04-06(c)(2)

The BIA did not abuse its discretion by denying the petitioners’ untimely motion for reconsideration. See 8 C.F.R. § 1003.2(c)(2) (requiring that reconsideration motion be filed within 30 days after the mailing of the underlying decision).

The regulation exempts a motion to reopen from the filing deadline when it is based on material changed country conditions that were previously unavailable and undiscoverable.

Naser v. Ashcroft · filed 2004-05-05(c)(3)(ii)

Athough Naser’s 2000 motion was facially untimely, see 8 C.F.R. § 3.2(c)(2),1 the time limit does not apply to motions which are “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 C.F.R. § 3.2(c)(3)(ii).

Section 1003.2(a) gives the BIA discretionary sua sponte authority to reopen or reconsider a case, and its exercise is not reviewable because the provision supplies no meaningful standard for judicial review.

Enriquez-Alvarado v. Ashcroft · filed 2004-05-19(a)

Likewise, 8 C.F.R. § 1003.2(a) grants the BIA similar sua sponte authority. ... The court held that it lacked jurisdiction because the only basis for reopening the case sua sponte, 8 C.F.R. § 1003.2(a), “provides no standards controlling or directing the BIA’s decision whether to reconsider on its own motion.” ... The reasoning of Belay-Gebru is persuasive. ... Because Supreme Court precedent prohibits review of such discretionary decisions, see Heckler, 470 U.S. at 830, this Court lacks jurisdiction.

A motion to reconsider must specify the factual or legal errors in the prior Board decision and be supported by pertinent authority.

Singh v. Ashcroft · filed 2004-05-20(b)(1)

Similarly, the BIA did not abuse its discretion when it denied Singh’s motion to reconsider, because Singh did not argue, much less demonstrate and support with legal authority, that the BIA erred as a matter of law or fact in its May 13, 2002 decision. See Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir.2003); see also 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.”).

Section 1003.2(b)(1) requires a motion to reconsider to specify the errors of fact or law in the prior Board decision and support the motion with pertinent authority.

Alfaro v. Ashcroft · filed 2004-05-20(b)(1)

Petitioners contend that the BIA failed to address their argument that the IJ did not consider if they qualified for other forms of relief. This contention lacks merit because Petitioners failed to identify the potential relief the IJ allegedly did not consider. See 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.”); Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir.1989) (“IJs are not expected to be clairvoyant; the record before them must fairly raise the issue.”). Thus, the BIA did not abuse its discretion when it denied Petitioners’ motion to reconsider.

Section 1003.2(b)(1) permits a motion to reconsider to be deemed a motion to remand for further proceedings before the Immigration Judge, but a filing that is not indicated to be a motion to reconsider cannot be treated that way merely to present new facts.

Monroy-Perez v. Ashcroft · filed 2004-06-25(b)(1)

Petitioners also contend that their brief to the BIA was in fact a motion to reconsider, which “may be deemed a motion to remand the decision for further proceedings before the Immigration Judge.” 8 C.F.R. § 1003.2(b)(1). There is no indication within this brief that it was a motion to reconsider. Moreover, the purpose of such a motion is “not to raise new facts, but rather to demonstrate that the IJ or the BIA erred as a matter of law or fact.”

A motion to reopen before the BIA must be accompanied by the appropriate application for relief and supporting documents.

Singh v. Ashcroft · filed 2004-06-28(c)(1)

The BIA did not abuse its discretion in denying Singh’s motion to reopen for failure to submit affidavits. See 8 C.F.R. § 1003.2(c)(1) (requiring that motions to reopen before the BIA be accompanied by the appropriate application for relief and supporting documents).

A motion to reconsider must be timely filed, identify errors of fact or law in the prior BIA decision, and does not require the BIA to provide more reasoning than its decision contains.

Sunico v. Atty Gen USA · filed 2004-07-06(b)(2), (b)(1), (b)(3)

We do not agree with the proposition that the BIA abused its discretion in denying Sunico’s motion to reconsider because it was untimely filed and, secondarily, because it had no merit. ... Even if Sunico did not waive his challenge to the BIA’s timeliness determination by failing to raise that issue in his opening brief, see FDIC v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000), the BIA did not err in its determination that Sunico’s motion to reconsider was not timely filed and therefore should be denied, see 8 C.F.R. § 1003.2(b)(2). ... Furthermore, even if Sunico had timely filed a motion to reconsider, he did not meet his burden before the BIA to show errors of fact or law in the prior BIA decision, see 8 C.F.R. § 1003.2(b)(1), and the BIA was not required to give more reasoning than it did in its December 12, 2002, decision, see 8 C.F.R. § 1003.2(b)(3); Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (en banc) (holding that regulations allowing the BIA to summarily affirm an IJ without opinion do not violate due process).

Section 1003.2(c)(1) requires evidence supporting reopening to have been unavailable and not discoverable or presentable at the prior hearing, and requires reliable supporting evidence.

Botchway v. Atty Gen USA · filed 2003-06-13(c)(1)

The BIA’s decision was not an abuse of discretion, for several reasons. First, although Amissah was presumably aware of the information contained in the statement as of April 9, 2001, Botchway’s counsel did not raise this concern at her May 9, 2001 hearing. Botchway has not explained why the information in the letter was not available and could not have been discovered or presented at the May 9, 2001 hearing, as required by 8 C.F.R. § 3.2(c)(1). ... Second, the letter is not a sworn affidavit and, thus, Botchway has not established the reliability of the information contained in it, as 8 C.F.R. § 3.2(c)(1) requires.

Section 1003.2 makes motions to reopen or reconsider discretionary, and a motion to reopen requires material evidence that was unavailable and could not have been discovered or presented at the former hearing.

Noriega-Lopez v. John Ashcroft, Attorney General Charles Demore Lori Scialabba · filed 2003-07-09(c)(1), (a)

Here, a motion to reopen would not have been appropriate, as there were no new facts relevant to the propriety of the BIA’s issuance of the order of removal. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....”); Iturribarria v. INS, 821 F.3d 889, 895 (9th Cir.2003) (discussing the distinction between motions to reopen and motions to reconsider). The same regulation that renders a motion to reopen discretionary, however, also applies to motions to reconsider. See 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section.” (emphasis added)).

Subsection (b)(2) requires a petition to review a final deportation order to be filed within 30 days after the order is issued.

Birke v. Ashcroft · filed 2003-08-05(b)(2)

The appellant did not file for judicial review within the statutory guidelines under 8 C.F.R. § 1003.2(b)(2) (2003). The section states that any petition to review a final deportation order must be filed "within 30 days” after that order is issued.

Section 1003.2(a) permits the Board of Immigration Appeals to reconsider its decision in its discretion.

Theagene v. Ashcroft · filed 2003-08-27(a)

The government’s motion to reconsider properly stated a perceived error in law that the Board committed in reversing the immigration judge. As such, the Board acted within its discretion in granting the motion to reconsider.

A motion to reconsider must specify the errors of fact or law in the prior Board decision and be supported by pertinent authority.

Nur v. Ashcroft · filed 2004-07-06(b)(1)

In order to demonstrate that the BIA abused its discretion in denying his motion to reconsider, Nur must show that he raised specific errors in the motion that would entitle him to such relief. A motion to reconsider “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).

Section 1003.2(b)(1) requires a motion to reconsider to specify the factual or legal errors in the prior Board decision and include pertinent supporting authority.

Esenwah v. John D. Ashcroft, Attorney General of the United States · filed 2004-08-05(b)(1)

“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(l)(2004). By its very nature, a motion for reconsideration alleges defects of some sort in the underlying decision by the BIA. Though our review is only for abuse of discretion, a proper review under the abuse-of-discretion standard of denials of motions for reconsideration ordinarily requires some review of the underlying decision.

Section 1003.2(b)(1) requires a motion to reconsider to identify specific factual or legal errors in the BIA’s decision and support them with pertinent authority, while subsection (a) makes denial reviewable for abuse of discretion.

Galko v. Ashcroft · filed 2004-08-31(b)(1), (a)

In a motion to reconsider, a petitioner must cite specific errors of fact or law in the BIA’s decision, supported with pertinent authority. 8 C.F.R. § 1003.2(b)(1); Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of Gaiko’s motion for reconsideration under the highly deferential abuse-of-discretion standard. 8 C.F.R. § 1003.2(a); Dandan v. Ashcroft, 339 F.3d 567, 575 (7th Cir.2003).

Section 1003.2(b)(1) requires a motion to reconsider to identify errors of fact or law in the prior Board decision and support the motion with pertinent authority.

Munoz-Guevara v. Ashcroft · filed 2004-09-22(b)(1)

The BIA did not abuse its discretion in denying the motion for reconsideration because the motion failed to specify errors of fact or law in the BIA’s decision. See 8 C.F.R. § 1003.2(b)(1) (stating that a motion to reconsider “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority”).

A motion for reconsideration must identify the factual or legal errors in the prior Board decision and be supported by pertinent authority.

Djon Sinistaj (02-4026) Drita Sinistaj (02-4027) Marija Sinistaj (02-4028) v. John Ashcroft, Attorney General Immigration and Naturalization Service · filed 2004-07-07(b)

Pursuant to 8 C.F.R. § 1003.2(b), a motion for reconsideration of a decision by the Board must “state the reasons for the motion by specifying the errors of fact or law in the prior Board decision,” and must be “supported by pertinent authority.” ... Moreover, the only legal authority cited in the motion was a string-cite of three cases that purportedly deal with notions of “due process” and “fundamental fairness,” but were not cited for any proposition related to reconsideration and do not reveal any error committed by the Board in this case. Thus, the cases cited do not constitute “pertinent authority” within the meaning of 8 C.F.R. § 1003.2(b).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the final administrative decision.

Manoukian v. Ashcroft · filed 2004-07-16(c)(2)

Petitioner filed his current motion to reopen on September 30, 2002, more than 90 days after the BIA’s February 27, 2002 decision dismissing his appeal. See 8 C.F.R. § 3.2(c)(2) (now codified at 8 C.F.R. § 1003.2(c)(2)) (a party’s motion to reopen must be filed within 90 days of the date of the final administrative decision).

Section 1003.2 governs BIA motions to reconsider and reopen by requiring specified errors or qualifying new evidence, limiting review of those motions to abuse of discretion, and providing that filing a motion does not stay execution unless a stay is specifically granted.

Boudaguian v. Ashcroft · filed 2004-07-22(a), (b)(1), (c)(1), and (f)

We review such orders for abuse of discretion. See 8 C.F.R. § 1003.2(a); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir. 2003). ... The applicable regulation provides that a motion asking the BIA to reconsider an adverse decision “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). ... The motion may not be granted unless the new evidence “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). ... The applicable regulation provides that the filing of a motion to reopen “shall not stay the execution of any decision made in the case . . . unless a stay of execution is specifically granted.” 8 C.F.R. § 1003.2(f).

Section 1003.2 gives the Board discretion over motions to reopen and distinguishes the 30-day deadline for motions to reconsider from the 90-day deadline for motions to reopen.

Heu Long Siong v. Immigration & Naturalization Service · filed 2004-07-23(a), (b)(2), (c)(2)

By contrast, the decision to grant or deny a motion to reopen is “within the discretion of the Board.”9 8 C.F.R. § 1003.2(a); ... “A motion to reconsider must be filed "within 30 days after the mailing of the Board decision:" 8 C.F.R. § 1003.2(b)(2). By contrast, a motion to reopen must be filed within 90 days after the final decision. 8 C.F.R. § 1003.2(c)(2). If characterized as a motion to reopen, Siong's motion was timely.

Section 1003.2 requires reopening evidence to be material and previously unavailable, and leaves motions to reopen or reconsider to the BIA's discretion, subject to abuse-of-discretion review.

Goguadze v. Atty Gen USA · filed 2004-08-05(a), (c)(1)

A motion for reconsideration must “specify the errors of law or fact in the previous order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(5)(C); 8 C.F.R. § 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a motion to . . . reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Accordingly, we review to determine if the BIA abused its discretion. ... Section 1229a(c)(6) allows an alien to file a motion to reopen which must “state the new facts that will be proven at a hearing to be held if the motion is granted.” 8 U.S.C. § 1229a(c)(6)(B). Regulation 1003.2(c) provides that a motion to reopen “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). The regulation further provides that granting a “motion to reopen . . . is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Thus, our review is for an abuse of discretion.

Subsection (f) provides that filing a motion to reopen does not stay execution of a decision unless a stay of execution is specifically granted.

Vitalik K. Boudaguian Ofelia R. Boudaguian Khristofor v. Boudaguian Kristina v. Boudaguian v. John D. Ashcroft, Attorney General of the United States · filed 2004-07-22(f)

The applicable regulation provides that the filing of a motion to reopen “shall not stay the execution of any decision made in the case ... unless a stay of execution is specifically granted.” 8 C.F.R. § 1003.2(f). As the BIA granted no such stay, the thirty-day voluntary departure period expired well before the Boudaguians filed this petition for judicial review.

Section 1003.2(a) makes the decision whether to grant or deny a motion to reopen discretionary with the Board.

Heu Long Siong v. Immigration and Naturalization Service · filed 2004-07-23(a)

By contrast, the decision to grant or deny a motion to reopen is "within the discretion of the Board."9 8 C.F.R. § 1003.2(a); see also INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (stating that "[t]he granting of a motion to reopen is ... discretionary"); Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.2002) (stating that "`[t]he BIA has considerable discretion concerning motions to reopen'") (quoting Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996)).

Section 1003.2(c) requires a motion to reopen based on additional evidence to state new and material facts that were unavailable and could not have been discovered or presented at the prior hearing.

Gebremaria v. John Ashcroft, Attorney General of the United States · filed 2004-08-02(c)

The applicable regulation indicates that a motion to reopen for additional evidence must state new and material facts that were not available and could not have been discovered or presented at the prior hearing. 8 C.F.R. § 3.2(c) (1994).

Section 1003.2(c)(1) requires evidence supporting a motion to reopen to be material and previously unavailable.

Amir-Moezi v. Ashcroft · filed 2004-08-26(c)(1)

A motion to reopen shall not be granted unless it appears that the evidence is material and was not previously available. See 8 C.F.R. § 1003.2(c)(1). ... The record supports the BIA’s conclusion that petitioner did not augment his motion to reopen with previously unavailable new and material evidence. ... The fact that this information was neither new nor unavailable was a sufficient basis for the BIA to deny petitioner’s motion to reopen and remand.

Section 1003.2(f) says filing a motion to reopen or reconsider generally does not stay execution of the decision, except for specified in absentia reopening motions; the exception does not apply to a motion to reconsider.

Patel v. Ashcroft · filed 2004-08-03(f)

But the provision we have just quoted applies only to motions to reopen or reconsider decisions by an immigration judge, not motions to reopen or reconsider decisions of the Board of Immigration Appeals. Such motions are governed by 8 C.F.R. § 1003.2(f), which provides that “the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case ... except where a motion is filed pursuant to the provisions of §§ 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A).” Those sections specify the procedures for filing motions to reopen in absentia orders, but do not mention motions to reconsider.

Section 1003.2(c)(1) permits reopening a final removal order only when the proffered evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Johnson v. John Ashcroft, U.S. Attorney General Immigration and Naturalization Service · filed 2004-08-05(c)(1)

“Such motions are allowed under INS regulations only where a party seeks to present new evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 3.2(c)(1) (2001) (now codified at 8 C.F.R. § 1003.2(c)(1)). Significantly, the BIA has, by decision, imposed an equivalent precondition on the granting of a motion to remand.”

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days after the final administrative decision.

Ameh v. Ashcroft · filed 2004-08-06(c)(2)

We first address the Board’s denial of Ameh’s motion to reopen and find that the Board did not abuse its discretion in denying the motion as untimely filed. See 8 C.F.R. § 1003.2(c)(2) (2004); INS v. Doherty, 502 U.S. 314, 323-24 (1992).

Section 1003.2(c) treats a remand request seeking to present newly available evidence as a motion to reopen, while § 1003.2(a) leaves reopening to the BIA’s discretion.

Ghareeb v. Ashcroft · filed 2004-09-17(c)

Ghareeb filed his motion to remand pursuant to 8 C.F.R. § 1003.2, the precursor regulation to 8 C.F.R. § 1003.2, which provides for motions to reopen. 8 C.F.R. § 1003.2(c). Accordingly, the BIA properly characterized his motion to remand as a motion to reopen. ... The regulations provide that a motion to reopen is “within the discretion of the Board,” and that the “Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a); see also Doherty, 502 U.S. at 323.

Section 1003.2(c)(2) limits a party to one motion to reopen filed within 90 days, but the Board may suspend those restrictions to address a change in law without being required to consider further motions based on the same change.

Jing v. Ashcroft · filed 2004-08-06(c)(2)

As the BIA explained in G-C-L-, X-G-W- permitted the suspension of the filing restrictions embodied in 8 C.F.R. § 1003.2(c)(2) “to afford individuals both a means to promptly respond to the change in law and a reasonable period of time in which to do so.” In re G-C-L-, 23 I. & N. at 362 (emphasis supplied). Once a petitioner has had the opportunity to file a motion to reopen in light of the new law, neither the logic nor the text of the opinions obligate the Board to consider numerous, additional motions to reopen. Here, the BIA permitted the petitioners to file a motion to reopen well beyond the 90-day deadline of § 1003.2(c)(2) to take advantage of the change in asylum law. Having done so, the BIA was not required to consider yet another motion to reopen based on the same change in law.

Section 1003.2(c) permits reopening only when the offered evidence is material and was unavailable and could not previously have been discovered or presented.

Velasquez v. Ashcroft · filed 2004-08-10(c)

A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.

Subsection (b)(3) bars a motion to reconsider based solely on an argument that a single Board Member or three-Member panel should not have affirmed without opinion, while subsection (a) preserves the Board’s discretion to deny reopening even after a prima facie case for relief is shown.

Tagoe v. Ashcroft · filed 2004-08-27(b)(3), (a)

Under 8 C.F.R. § 1003.2(b)(3), “[a] motion to reconsider based solely on an argument that the case should not have been affirmed without opinion by a single Board Member, or by a three-Member panel, is barred.” Accordingly, the BIA properly dismissed Tagoe’s motion to reconsider. ... Further, even if the BIA determines that a petitioner demonstrated a bona fide marriage, it still may exercise its discretion to deny relief. See INS v. Abudu , 485 U.S. 94, 105 (1988); see also 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”).

Section 1003.2(c)(1) treats a material change in circumstances affecting the claim as a previously unavailable basis for reopening.

Sauceda-Corrales v. Ashcroft · filed 2004-08-11(c)(1)

After the initial decision to deny Sauceda-Corrales’ request for suspension of deportation, his wife was ordered deported to Guatamala, and her appeal from that order was dismissed. It is no longer an option for the children to remain in the United States with the mother, since she cannot remain here. Thus, Sauceda-Corrales’ claim changed to a contention that his children will suffer hardship because they will no longer be able to live in the United States. That is a different question which requires different analysis. That change in circumstances is a material factor that was previously unavailable. 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(3)(ii) permits a motion to reopen despite the ordinary deadline when the movant adequately shows changed circumstances in the country of nationality.

Ghobrial v. Ashcroft · filed 2004-08-16(c)(3)(ii)

The BIA did not abuse its discretion in denying Ghobrial’s motion to reopen as untimely under 8 C.F.R. § 3.2(c)(2) (2002), because the record shows, and Ghobrial does not dispute, that the motion was filed on May 3, 2002, more than 90 days after the November 5, 2001 final order of deportation, and Ghobrial has failed to raise any equitable tolling arguments, see Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002), or adequately show changed circumstances in Egypt, see 8 C.F.R. § 1003.2(c)(3)(ii) (formerly 8 C.F.R. § 3.2(c)(3)(h)).

A motion to reopen must present new evidence; when it presents none and only seeks reconsideration of resolved issues, it is properly treated as a motion to reconsider.

Chen v. Ashcroft · filed 2004-09-22(c)(1)

The BIA correctly construed Chen’s motion to reopen as a motion to reconsider because the record shows that Chen provided no new evidence with his motion and simply sought further reconsideration of issues that were resolved before the immigration judge (“IJ”) and the BIA in 2000 and 2001.

Section 1003.2(c)(1) permits reopening to consider a section 212(c) application when the alien demonstrates statutory eligibility for that relief before the administratively final deportation order.

Maxwell v. Immigration & Naturalization Service · filed 2004-08-20(c)(1)

Despite the First Circuit’s holding in Wright, this Court finds that the following agency regulation addressing motions to reopen, in precisely the circumstances raised by this case, supports statutory eligibility for Mr. Maxwell: 8 C.F.R. § 1003.2(c)(1); see also Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034 (5th Cir.1997) (although not applicable to the facts of that case, the Fifth Circuit discusses the regulation and concludes that it “permit[s] the reopening of exclusion proceedings to entertain requests for section 212(c) relief’). Given this pertinent and persuasive regulation, the Court finds that AEDPA and IIRIRA do not retroactively revoke Mr. Maxwell’s 212(c) eligibility. Accordingly, the BIA erred as a matter of law in concluding that Mr. Maxwell was not statutorily eligible for 212(c) relief.

Section 1003.2(a) permits the BIA to reopen proceedings sua sponte, but courts lack jurisdiction to review its discretionary refusal to do so.

Atilano-Flores v. Ashcroft · filed 2004-08-20(a)

We lack jurisdiction to review the BIA’s decision not to exercise its discretion to reopen petitioners’ proceedings sua sponte under 8 C.F.R. § 1003.2(a) (formerly 8 C.F.R. § 3.2(a) (2002)).

Section 1003.2(b)(2) imposes numerical limits on motions to reopen immigration proceedings.

Zapien v. Ashcroft · filed 2004-08-20(b)(2)

The BIA did not abuse its discretion in denying petitioner’s second motion to reopen according to the numerical limitations established by 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(c)(1) permits reopening when previously unavailable evidence, although minimal, is sufficient to establish a prima facie case for relief.

Diaz v. Ashcroft · filed 2004-08-24(c)(1)

No longer represented by a notary illegally practicing law or by counsel appearing on the notary’s behalf, SolorioDiaz has now presented evidence, not previously available, that, although minimal, is *798sufficient to state a prima facie case for relief. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(2)'s 90-day and one-motion limits do not bar a motion to reopen based on materially changed conditions in the country of nationality when the supporting evidence was unavailable and undiscoverable at the previous hearing.

Anis Shokri Salama Malty v. John Ashcroft, Attorney General · filed 2004-08-27(c)(2)

Ordinarily, a petitioner seeking to reopen his deportation proceedings must file a motion within ninety days of the date upon which the final administrative decision was rendered and may file only one motion to reopen. 8 C.F.R. § 1003.2(c)(2). However, the time and numerical limitations are inapplicable in certain circumstances. ... Because Malty filed his motion to reopen on the basis of changed circumstances arising in Egypt and because, as discussed below, we conclude that his evidence is “material and was not available and could not have been discovered at the previous hearing,” 8 C.F.R. § 1003.2(c)(3)(h), we hold that the BIA abused its discretion in ruling that the motion was untimely and numerically barred.

Section 1003.2(b)(2) requires a motion for reconsideration to identify a legal or factual error in the prior BIA decision.

Shiferaw v. Ashcroft · filed 2004-09-01(b)(2)

The record supports the BIA’s determination that Shiferaw, in his reconsideration motion, failed to point to any legal or factual error by the BIA in denying his motion to reopen. As a result, Shiferaw has not shown that the BIA abused its discretion in denying his reconsideration motion on the grounds that he had failed to make such a showing. See 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(d) removes the BIA’s jurisdiction to reopen the removal proceedings of an alien who has already been deported.

Vasquez-Barron v. Holder · filed 2009-03-18(d)

Vasquez’s attempt to have his removal proceedings reopened is foreclosed by Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675-76 (5th Cir.2003), where we upheld the BIA’s interpretation of 8 C.F.R. § 1003.2(d) (formerly 8 C.F.R. § 3.2(d)) as removing the BIA’s jurisdiction to reopen the removal proceedings of a deported alien.

Subsection (d) bars a person who departed the United States after an appeal from filing a motion to reopen once that departure made the deportation order final.

Villalvaso-Lugo v. Ashcroft · filed 2004-09-13(d)

But under 8 C.F.R. § 1003.2, the BIA could not, in fact, reopen Villalvaso’s case. Thus, by temporarily leaving the United States, Villalvaso withdrew his appeal, which rendered his deportation order final, terminated his LPR status, and barred him from filing a motion to reopen. See 8 C.F.R. § 1003.2(d).

Section 1003.2(c)(1) requires an alien moving to reopen before the BIA to attach the appropriate application for relief and all supporting documentation.

Chia v. U.S. Attorney General · filed 2009-03-03(c)(1)

When filing a motion to reopen, an alien is required to attach “the appropriate application for relief and all supporting documentation.” 8 C.F.R. §§ 1003.2(c)(1) (before BIA), 1003.23(b)(3) (before IJ). Form I-485 is the appropriate form for applying for adjustment of status. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th Cir. 2006); see also 8 C.F.R. § 245.2(a)(3)(ii). Here, the record shows that Chia failed to attach an I-485 form to his motion to reopen as required by agency regulation.

Section 1003.2(c)(1) requires a motion to reopen to be accompanied by affidavits or other evidentiary material but does not require those affidavits to be signed by the petitioner.

Domratchev v. Ashcroft · filed 2004-09-20(c)(1)

Contrary to the government’s contention, the statute and regulations do not require that the affidavits accompanying a motion to reopen be signed by petitioner. See 8 C.F.R. § 1003.2(c)(1) (requiring that a motion to reopen be accompanied by “affidavits or other evidentiary material”); 8 U.S.C. § 1229a(c)(6)(B) (same).

Section 1003.2(b)(2) requires a motion to reconsider to be filed within 30 days of the mailing of the Board decision, and § 1003.2(c)(3)(i)-(iv) provides no regulatory exception to that deadline.

Ma v. Ashcroft · filed 2004-09-20(b)(2), (c)(3)(i)-(iv)

A motion to reconsider must be filed within 30 days of the mailing of the Board decision. 8 C.F.R. § 1003.2(b)(2). There is no regulatory exception to the filing deadline. See 8 C.F.R. § 1003.2(c)(3)(i)-(iv).

Section 1003.2(c)(1) requires evidence supporting a motion to reopen to be previously unavailable at the hearing.

Alianza v. Ashcroft · filed 2004-09-20(c)(1)

As to much of the new evidence offered in support of his motion, Alianza has not demonstrated that it was not available at his hearing. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(b)(3) bars a motion to reconsider based solely on the argument that the case should not have been affirmed without opinion by a single Board Member or a three-Member panel.

Lisanu v. Ashcroft · filed 2004-09-22(b)(3)

The BIA improperly denied Lisanu’s motion for reconsideration on the grounds that Lisanu’s sole argument was barred under the BIA’s regulations. See 8 C.F.R. § 1003.2(b)(3) (“A motion to reconsider based solely on an argument that the case should not have been affirmed without opinion by a single Board Member, or by a three-Member panel, is barred.”).

Section 1003.2(c)(4) allows a motion to reopen filed while an appeal is pending to be deemed a motion to remand.

Patel v. Attorney General · filed 2008-02-11(c)(4)

The parties dispute whether Patel effectively made a motion to reopen and remand before the BIA when she asserted an ineffectiveness of counsel claim. We agree with the government that because Patel stated new facts supported by affidavits when raising that claim, she effectively made a motion to reopen. See 8 C.F.R § 1003.2(c)(1). Patel’s motion to reopen was made while she had an appeal pending and therefore “may be deemed a motion to remand.” 8 C.F.R. § 1003.2(c)(4).

Section 1003.2 sets a reasonable standard governing admission of new evidence in a motion to remand.

Habib v. Ashcroft · filed 2004-03-09

The regulation discussed above sets a reasonable standard for admission of new evidence.

Section 1003.2(c) distinguishes motions to reopen from motions to remand, so a prior motion to remand does not trigger the one-motion limit, but reopening still requires previously unavailable evidence.

Simtion, Raducu v. Ashcroft, John · filed 2004-12-29(c)(1), (c)(2), (c)(4)

The BIA ruled that if Simtion was seeking to have the asylum proceeding reopened, he would be “barred by the numerical limitations [sic] on motions.” ... But although Simtion had previously filed a document with the BIA titled a “motion to reopen,” after he missed his first adjustment of status hearing, it is not clear that his deportation hearings had ever been “closed” such that they could be “reopened.” ... It appears that Simtion had only filed motions to remand before, but had never filed a true motion to reopen. So the BIA’s determination that Simtion was barred by the numerical limitation on motions appears to be incorrect. ... Still, Simtion was not entitled to have his motion granted. All motions to reopen must be based on evidence that “could not have been discovered or presented at the former hearing.”

Section 1003.2's requirements apply to a submission styled as a motion to remand when the submission is actually a motion to reopen or reconsider.

Romulo v. Gonzales · filed 2005-08-04

We reject petitioners’ contention that the BIA abused its discretion by failing to consider their letter and attachments, entitled “Additional Documentation Submitted Based on New and Material Facts and Exhibits,” as a motion to remand. The letter and attachments did not comply with the requirements of 8 C.F.R. § 1003.2, and none of the purportedly new evidence related to petitioners’ presence in the United States during the relevant ten-year period.

Section 1003.2(c)(1) bars reopening unless the evidence offered is material, previously unavailable, and could not have been discovered or presented at the former hearing.

Membreno v. Alberto R. Gonzales, Attorney General · filed 2005-10-14(c)(1)

“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen.

A motion to reopen or remand may be denied when the new evidence offered is unlikely to produce a different result at a future hearing.

Lin v. Gonzales · filed 2006-07-14(c)(1)

The BIA did not abuse its discretion in denying Lin’s motion to remand based on her recent marriage and second pregnancy. See Jian Wen Wang v. BCIS, 437 F.3d 276, 278 (2d Cir.2006). Lin again failed to submit any evidence of a policy of sterilization of Chinese citizens who have children abroad, and therefore the BIA was within its discretion in concluding that the evidence of her pregnancy, standing alone, was unlikely to lead to a different result at a future hearing. See 8 C.F.R. § 1003.2(c)(1), (4).

Section 1003.2 permits the BIA to treat a new-evidence submission as a motion to remand and to deny it even when the movant makes a prima facie case, including when the evidence could have been presented earlier.

Li v. Bureau of Citizenship & Immigration Services · filed 2007-03-21(c)(1), (c)(4), (a)

The BIA properly construed this submission as a motion to remand as it presented new evidence. See 8 C.F.R. § 1003.2(c)(1), (c)(4); see also 8 C.F.R. § 1003.1(d)(3)(iv). The BIA’s denial of a motion to remand is held to the substantive standard of review for motions to reopen and reconsider, i.e., abuse of discretion. ... Although Li asserts that the evidence he submitted made out a prima facie case for CAT relief based on his illegal departure, the BIA has discretion to deny a motion to remand “even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Furthermore, the BIA has not “acted in an arbitrary or capricious manner,” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted), in denying Li’s motion where: (1) Li offered no explanation as to why evidence of his illegal departure could not have been presented to the IJ during the merits hearing in 1999, see 8 C.F.R. § 1003.2(c)(1); (2) Li’s only evidence that he departed China without authorization is his own assertion in a statement included with the November 2004 submission; and (3) Li did not demonstrate that someone in his “particular alleged circumstances” is more likely than not to be tortured in China.

Section 1003.2(c)(1) permits remand based on new evidence that was not received until after the initial decision.

Rranxburgaj v. Mukasey · filed 2008-07-01(c)(1)

Petitioner contends that the decision to remand constituted a violation of due process because the BIA did not adhere to its own precedent when it remanded to another immigration judge. See 8 C.F.R. § 1003.2(c)(1) (2008). The record, however, reflects that the BIA acted reasonably and in accord with its regulations when it remanded the matter following the presentation of new evidence contained in the Embassy Report, which Respondent did not receive until after the initial grant of asylum.

Section 1003.2(c) requires new evidence supporting a motion to reopen or remand to have been unavailable at the time of the previous hearing.

Neto v. Holder · filed 2009-04-29(c)

We conclude that the BIA did not abuse its discretion in denying Neto’s motion for remand where Neto failed to show, as required by 8 C.F.R. § 1003.2(c), that the new evidence at issue was unavailable at the time of his previous hearing.

Section 1003.2(c)(1) permits the Board to grant a motion to reopen, and a remand motion based on new evidence, only when the evidence is material and was previously unavailable and undiscoverable or unpresentable at the former hearing.

Riaz v. Holder · filed 2010-03-02(c)(1)

Thus, it “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). ... Indeed, to adjudicate a motion to remand, the BIA must assess the materiality of the evidence the movant submitted to determine whether he or she “demonstrat[ed] a likelihood that the new evidence presented would alter the result in the case [on remand].”

Section 1003.2(c)(4) treats a motion to remand for submitting additional evidence like a motion to reopen, and § 1003.2(c)(1) requires the evidence to be material and unavailable at the former hearing.

Huang v. Attorney General of the United States · filed 2010-09-08(c)(4), (c)(1)

The BIA treats a motion to remand for the purpose of submitting additional evidence in the same manner as motions to reopen the record. See 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20 I. & N. Dec. 464, 471 (B.I.A. 1992) (“[W]here a motion to remand is really in the nature of a motion to reopen or a motion to reconsider, it must comply with the substantive requirements for such motions.”). The alien must show that the “evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires the BIA to deny a motion to remand unless the offered evidence is material.

Neri-Garcia v. Holder · filed 2012-10-03(c)(1)

Thus, a motion to remand “shall not be granted unless it appears to the [BIA] that evidence sought to be offered is material.” 8 C.F.R. § 1003.2(c)(1). ... The BIA appropriately considered whether the evidence of new incidents of violence against gay men was sufficient to justify a remand. Even if the news articles had reported direct or indirect involvement by government actors in the murders, the BIA’s assessment of the probative value of isolated acts of violence, considering the size and population of Mexico, was reasoned and rational. ... The BIA did not abuse its discretion in denying Neri-Garcia’s motion to remand.

Section 1003.2 treats a motion to remand seeking previously unpresented evidence as a motion to reopen, which must identify and support new facts and may be granted only when the evidence is material and previously unavailable or undiscoverable.

Min Jun Jiang v. U.S. Attorney General · filed 2012-10-16(c)(4) (c)(1)

A motion to remand that seeks to introduce evidence that has not previously been presented is generally treated as a motion to reopen. 8 C.F.R. § 1003.2(c)(4); Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008). ... A motion to reopen must “state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. . . . A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing[.]” 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires a motion to reopen or remand based on new evidence to show that the evidence is material, new, and previously unavailable.

Quijano v. Eric Holder, Jr. · filed 2013-12-20(c)(1)

To the extent that Quijano challenges the BIA’s denial of his motion to remand, the BIA did not abuse its discretion because Quijano did not demonstrate that the evidence he submitted with his motion was material, new, and previously unavailable. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires an alien seeking remand based on new evidence to show that the evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Dong v. Holder · filed 2014-03-28(c)(1)

An alien seeking a remand for consideration of new evidence must demonstrate that the evidence to be offered “is material and was not available and could not have been discovered or presented at the former hearing.” ... Dong does not meaningfully challenge the BIA’s dispositive determination that his evidence of ineffective assistance was previously available and could have been presented in his prior appeal to the BIA.

Section 1003.2(c)(1) requires a motion to reopen to state the new facts to be proven at a hearing and to be supported by affidavits or other evidentiary material; those requirements apply by analogy to a motion to remand.

Angov v. Holder · filed 2015-06-08(c)(1)

“Since a motion to remand is so similar to a motion to reopen, the motion to remand should be drafted in conformity with the regulations pertinent to motions to reopen . . . .” “The applicable regulation provides that a motion to reopen shall state “the new facts that will be proven at a hearing to be held if the motion is granted” and be supported by affidavits or other “evidentiary material.” 8 C.F.R. § 1003.2(c)(1). But Angov didn’t provide any evidence supporting his motion nor did he even explain why he believed that section 208.6 had been violated. The BIA did not abuse its discretion in denying Angov’s motion to remand.

Section 1003.2(c)(1) permits a motion to reopen, and a motion to remand under the same formal requirements, only when the new evidence is material and was unavailable and could not have been presented at the prior hearing.

Batila-Batila v. Jefferson Sessions · filed 2018-06-15(c)(1)

“A petitioner may . . . move to [remand] for the purpose of submitting a new application for relief, provided . . . the evidence sought to be offered is [1] material and [2] was not available and could not have been presented at the former hearing.”

Section 1003.2(c)(1) subjects a motion to remand based on new evidence to the same standards as a motion to reopen, including showing that the evidence was previously unavailable or establishing prima facie eligibility for relief.

Rashid v. Sessions · filed 2018-10-09(c)(1)

Nor do we discern any legal or constitutional error in the BIA’s denial of remand. A motion to remand based on new evidence is subject to the same rules as a motion to reopen, and thus a movant’s failure to proffer previously unavailable evidence or demonstrate his prima facie eligibility for relief are permissible grounds for denying a motion to remand.

Section 1003.2(c)(1) requires a motion to remand for new evidence to show that the evidence is material and was unavailable and could not have been discovered or presented at the hearing.

Shakkuri v. Barr · filed 2019-07-15(c)(1)

A motion to [remand] shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the [evidentiary] hearing.

Section 1003.2(b)(1) permits the BIA, in its discretion, to grant a timely motion to remand for further proceedings before an immigration judge.

Campos-Julio v. Barr · filed 2020-03-23(b)(1)

The BIA has discretion to grant timely motions to remand for further proceedings before the IJ. 8 C.F.R. §§ 1003.2(b)(1), (c)(4); see § 1003.1(d)(3)(iv). Motions to remand are disfavored, and we review their denial under a “highly deferential” abuse of discretion standard. See Alva-Arellano v. Lynch, 811 F.3d 1064, 1066 (8th Cir. 2016). Remand to the IJ is not warranted if the new evidence proffered was available and could have been presented at an earlier hearing, and the BIA will only remand “if the evidence is of such a nature that the Board is satisfied that if proceedings before the IJ were reopened, with all the attendant delays, the new evidence would likely change the result in the case.” Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005) (cleaned up); see Lee v. Holder, 765 F.3d 851, 854-55 (8th Cir. 2014).

Section 1003.2(c)(1) requires a motion to remand to be supported by new evidence.

Calderon-Rosas v. Attorney General United States · filed 2020-04-27(c)(1)

Indeed, the BIA entirely failed to discuss the significance of the hundred-plus pages of new evidence Calderon-Rosas submitted. Instead, paradoxically, it simultaneously faulted Calderon-Rosas for “not establish[ing] what additional corroboration he would have submitted,” JA 9, despite clear briefing and evidence to the contrary, and pronounced that it was “without authority to consider new evidence offered for the first time on appeal,” id., despite clearly applicable law to the contrary, 8 C.F.R. § 1003.2(c)(1) (requiring submission of new evidence to support motion to remand).

Section 1003.2(c)(1) requires new evidence supporting a motion to reopen or remand to be likely to change the result of the case.

Mishu v. Garland · filed 2022-05-25(c)(1)

The BIA did not abuse its discretion in denying Mishu’s motion to remand where he failed to establish the evidence submitted would likely change the result in this case. See 8 C.F.R. § 1003.2(c)(1); ... “bear a heavy burden of proving that, if proceedings were reopened, the new evidence would likely change the result in the case.”

Subsection (c) permits the BIA to deny a motion to reopen or remand when the new evidence is not material or probative and is unlikely to change the result.

Yousif v. Garland · filed 2022-11-16(c)

We begin with a bit of context. “The Board may deny a motion to remand where the evidence . . . is not material or probative[.]” Section 5.8, Motions to Remand, BIA Practice Manual (last updated August 15, 2022), https://www.justice.gov/eoir/reference-materials/bia/chapter-5/8; see also 8 C.F.R. § 1003.2(c). Or put another way, the BIA can deny the motion when the new evidence offered is not “‘likely [to] change the result in the case.’”

Section 1003.2(c)(1) requires a motion to reopen based on newly available evidence to identify material evidence that was unavailable and could not have been presented at the former hearing, while a motion seeking discretionary relief may rely on circumstances arising after the hearing.

Kabore v. Garland · filed 2022-12-21(c)(1)

“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” 8 C.F.R. § 1003.2(c)(1) (version in effect until Jan. 14, 2021). ... Kabore did not identify a material change in conditions as required to excuse his failure to raise a claim of religious persecution in his original proceedings. See 8 C.F.R. § 1003.2(c)(1).

A motion to remand for new evidence may be granted only when the evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Kassomi v. Garland · filed 2023-08-04(c)(1)

“A motion to [remand for new evidence] shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . . . .”

Section 1003.2(c)(1) requires a petitioner seeking remand to proffer material new evidence, and evidence is not material when it does not demonstrate an individualized risk relevant to the petitioner’s claim.

Ani v. Bondi · filed 2025-10-16(c)(1)

To prevail on a motion to remand, a petitioner must, among other things, “proffer evidence that ‘is material.’” Alcarez-Rodriguez v. Garland, 89 F.4th 754, 760 (9th Cir. 2023) (quoting 8 C.F.R. § 1003.2(c)(1)). The BIA did not abuse its discretion in finding that Ani’s new evidence was not material.

Section 1003.2(c)(1) requires new evidence supporting a motion to reopen or remand to be material and previously unavailable and undiscoverable or unpresentable at the former hearing.

Bhandari v. Blanche · filed 2026-06-23(c)(1)

On appeal to the BIA, Bhandari also sought remand to present additional hardship evidence. “A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen.” Li Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 156 (2d Cir. 2005). Accordingly, it “shall not be granted unless it appears . . . that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). ... And the BIA reasonably concluded that the evidence of her son’s therapy and his excellence in school was not new under 8 C.F.R. § 1003.2(c)(1). Before the IJ, Bhandari had testified that she was managing her son’s ADHD by implementing structure and extra activities in the home. Her new evidence of parental involvement in behavioral therapy for ADHD similarly requires implementing structure and limitations in the home. And the evidence before the IJ showed that her son was excelling in school, so the evidence of academic achievement was not new.

A new evidence motion to remand may be denied when the evidence is immaterial or the movant fails to explain why it was previously unavailable.

Arshad v. United States Department of Justice · filed 2006-04-06(c)(1)

The BIA can deny such a motion on the grounds of “the movant’s failure to comply with the requirement of 8 C.F.R. § 3.2(c)(1) that his motion articulate material, previously unavailable evidence that would be introduced at a new hearing.” ... Here, as the BIA properly concluded, the letter described events that took place in 1990 and Arshad failed to explain why it could not have been obtained earlier, and, in any event, it did not constitute material evidence in support of Arshad’s claims. Accordingly, the BIA did not abuse its discretion in denying the motion.

Section 1003.2 distinguishes reconsideration from reopening; granting reconsideration does not by itself vacate the underlying removal order or eliminate jurisdiction over a pending review petition.

Ayala v. Mukasey · filed 2008-02-06(i)

In addition, the alien may simultaneously file a motion for reconsideration within 30 days of the BIA’s issuance of the final order. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). It is within the BIA’s discretion to grant or deny a motion for reconsideration. 8 C.F.R. § 1003.2(a). “If the motion to reconsider is granted, the decision upon such reconsideration shall affirm, modify or reverse the original decision made in the case.” 8 C.F.R. § 1003.2(i). ... Accordingly, in light of Stone, we hold that the BIA’s grant of the motion to reconsider did not divest us of jurisdiction over Plasencia-Ayala’s petition for review.

Section 1003.2 requires a motion to reconsider to be filed within 30 days after the Board's decision is mailed and a motion to reopen to be filed within 90 days after the final administrative decision.

Orozco-Morales v. Ashcroft · filed 2004-09-23(b)(2) (c)(2)

Because Petitioner’s motion was filed nearly nine months after the BIA’s final decision, the BIA did not abuse its discretion in denying Petitioner’s motion to reopen or reconsider as untimely. See 8 C.F.R. § 1003.2(b)(2) (“A motion to reconsider a decision must be filed with the Board within 30 days after the mailing of the Board decision”); 8 C.F.R. § 1003.2(c)(2) (A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”).

Section 1003.2 generally limits a party to one motion to reopen filed within 90 days or one motion to reconsider filed within 30 days after the final administrative decision, subject to its application to the proceeding being re-evaluated.

Chen v. Board of Immigration Reviews · filed 2006-02-17

A party generally may file only one motion to reopen, which must be filed within 90 days, or one motion to reconsider, which must be filed within 30 days, after the date on which a final administrative decision was rendered in the proceeding sought to be re-evaluated. 8 C.F.R. § 1003.2. Here, the BIA did not abuse its discretion in finding that Chen had failed to properly file his December 2004 motion to reconsider where this is the second such motion, and where it motion was filed more than nine months after his first was denied. Even if his motion were considered to be a motion to reopen, it still would not have been timely filed.

Section 1003.2(d) generally bars a person who departs the United States after removal proceedings begin from filing a motion to reopen, but the court held that the bar was misapplied where a vacated conviction was a key part of the deportation proceeding.

Cardoso-Tlaseca v. Gonzales · filed 2006-08-21(d)

We have interpreted this regulation “to mean that a person who leaves the U.S. after removal proceedings have already been initiated is barred from filing a motion to reopen.” ... In denying Cardoso’s motions to reopen and reconsider, the BIA purported to limit our holding in Wiedersperg to cases in which the vacated state court conviction is “the sole ground of deportability.” (Emphasis added). This was error. Both Wiedersperg and Estrada-Rosales apply where the conviction was a “key part” of the deportation proceeding.

Section 1003.2(d) bars a person who has departed the United States from making a motion to reopen or reconsider, and departure after filing withdraws the pending motion.

Tahiraj-Dauti v. Attorney General · filed 2009-01-30(d)

a motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. ... Tahiraj-Dauti does not cite any evidence which would vitiate the application of 8 C.F.R. § 1003.2(d), which we have held is a bar to his motion to reopen.

Section 1003.2(a) requires a motion to reopen a case decided by the Board to be filed with the Board, including a successive asylum application filed after a final order of removal.

Chen v. Holder · filed 2009-03-24(a)

Because Chen was required to file her motion to reopen before the BIA under 8 C.F.R. § 1003.2(a), the IJ did not abuse her discretion in finding that the Immigration Court did not have jurisdiction to consider the motion.

Section 1003.2(d) treats any departure from the United States as withdrawal of a pending motion to reopen or reconsider, without distinguishing between voluntary and involuntary departures.

Tahiraj-Dauti v. Attorney General · filed 2009-04-29(d)

We need not address this issue because the regulation draws no distinction between voluntary and involuntary departures, and commands that “[a]ny departure . . . shall constitute a withdrawal of such motion.” 8 C.F.R. § 1003.2(d).

Section 1003.2(d) does not eliminate the Board’s subject-matter jurisdiction over a motion to reopen or reconsider merely because the alien has departed the United States.

Marin-Rodriguez v. Holder · filed 2010-07-14(d)

As a rule about subject-matter jurisdiction, §1003.2(d) is untenable. The Immigration and Nationality Act authorizes the Board to reconsider or reopen its own decisions. It does not make that step depend on the alien’s presence in the United States.

Section 1003.2(a) permits an attorney to sign a motion to reopen or reconsider for a party, but the motion must include the requisite authorization forms for the BIA to have jurisdiction.

Abdulla v. Cissna · filed 2020-05-20(a)

A motion to reopen or reconsider must be made by “the Service, or by the party affected by the decision.” 8 C.F.R. § 1003.2(a). Here, the motion was made and signed by Abdulla’s attorney. That is permissible as long as the motion accompanies the requisite authorization forms, which it did not. That filing deficiency prevented the BIA from having proper jurisdiction.

Section 1003.2(a) gives the BIA authority, on its own motion, to reopen or reconsider a case in which it has rendered a decision at any time.

Carranza-Albayero v. Garland · filed 2022-05-04(a)

The regulations also provide that the BIA “may at any time reopen or reconsider” on its own motion any case in which it has rendered a decision. 8 C.F.R. § 1003.2(a) (emphasis added).

Section 1003.2(c)(1) requires a motion to reopen to state the new facts to be proven at a hearing and to include affidavits or other evidentiary material.

Askari v. Atty Gen USA · filed 2004-09-30(c)(1)

A motion to reopen must state the new facts that will be proven at a hearing to be held if the motion is granted and must be supported by affidavits or other evidentiary material. 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) guides the BIA's discretion when deciding whether to grant a motion to reopen.

Ven v. Ashcroft · filed 2004-10-22(c)(1)

The BIA also appropriately cited 8 C.F.R. § 1003.2(c)(1). Section 1003.2(c)(1) guides the BIA's discretion in granting a motion to reopen. It is this section that is relevant, not the ones cited by the petitioners.

Section 1003.2(c)(2) requires a motion to reopen to be timely filed, and an untimely motion may be denied.

Barajas-Magana v. Ashcroft · filed 2004-12-13(c)(2)

The IJ did not abuse her discretion by denying Barajas-Magana’s motion to reopen because the motion was not timely filed pursuant to 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) requires a motion to reopen before the Board of Immigration Appeals to be filed within 90 days of the Board's decision.

Pahlevan v. Ashcroft · filed 2004-09-23(c)(2)

We agree with the BIA’s finding that Pahlevan’s motion was not timely filed, where Pahlevan failed to file her motion to reopen within 90 days of the BIA’s decision. See Immigration and Nationality Act § 240(c)(6)(C)(I); 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) sets a 90-day deadline for filing a motion to reopen, which the court applied in calculating that the petitioners' motion was untimely.

Torres v. Ashcroft · filed 2004-11-09(c)(2)

Assuming that the 90-day statute of limitations set forth in 8 C.F.R. § 1003.2(c)(2) was equitably tolled until October 24, 2001, Petitioners had until January 22, 2002, to file their second motion to reopen.

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days after the final agency action.

Qalliaj v. Ashcroft · filed 2004-11-22(c)(2)

The BIA properly denied Qalliaj’s motion as untimely, because Qalliaj filed his motion more than 90 days after the final agency action and provided no explanation for the delay. See 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the final administrative decision, subject to specified exceptions.

Perez-Lopez v. Ashcroft · filed 2004-12-10(c)(2)

The BIA properly denied Petitioners’ motion to reopen as untimely because they filed it nearly two years after the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2); Iturribarria v. INS, 321 F.3d 889, 894-95 (9th Cir.2003).

Section 1003.2(c)(1) requires a motion to reopen to include affidavits or other evidentiary material that was previously unavailable.

Peralta v. Ashcroft · filed 2004-09-27(c)(1)

The BIA did not abuse its discretion by declining to revisit Peralta’s allegations because Peralta failed to support his motion to reopen with “affidavits or other evidentiary material” that were previously unavailable. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(b)(1) requires a motion for reconsideration to identify factual or legal errors in the prior Board decision and support the motion with pertinent authority.

Ahmed, Nuradin v. Ashcroft, John · filed 2004-10-26(b)(1)

To be within a mile of being granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its mind. Such a motion “is 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); see also Zhang v. INS, supra, 348 F.3d at 293. Therefore it “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).

Section 1003.2(b)(1) requires a motion to reconsider to specify errors of fact or law in the prior Board decision and be supported by pertinent authority.

Cruz v. Ashcroft · filed 2004-12-16(b)(1)

The BIA did not abuse its discretion in denying the Petitioners’ motion for reconsideration because the motion failed to identify errors of fact or law in the BIA’s decision. See 8 C.F.R. § 1003.2(b)(1) (stating that a motion to reconsider “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority”).

Section 1003.2(b)(1) requires a motion for reconsideration to identify factual or legal errors in the prior Board decision and support the motion with pertinent authority; merely rehashing previously rejected arguments is insufficient.

Ahmed v. John Ashcroft, Attorney General of the United States · filed 2004-10-26(b)(1)

To be within a mile of being granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its mind. Such a motion “is 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.” ... Therefore it “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). ... A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind. It’s as if the movant, when he appealed, had filed two copies of his appeal brief, and when his appeal was rejected asked us to read the second copy. ... “The repetition of previous arguments is not sufficient to prevail.”

Section 1003.2(c)(1) requires a motion to reopen to state the new facts that will be proven at the hearing.

Infanzon v. Ashcroft · filed 2004-10-28(c)(1)

One of the requirements for a motion to reopen is that the motion “state the new facts that will be proven at a hearing to be held if the motion is granted . . . .” 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires a motion to reopen to present material new evidence that was unavailable and could not have been discovered or presented at the former hearing; § 1003.2(b)(1) requires a motion to reconsider to specify errors of fact or law and cite pertinent authority.

Povall v. Ashcroft · filed 2004-10-28(c)(1), (b)(1)

Povall’s motion did not allege any new evidence that was “material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (describing the requirements for a motion to reopen). ... A motion to reconsider must “specify ] the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). Besides the fact that Povall’s motion was untimely if construed as a motion for reconsideration, the BIA correctly stated that Povall’s motion did not present any “new legal arguments, relevant changes of law, or arguments or aspects of the case that were previously *227overlooked.”

Section 1003.2(c)(1) requires new evidence supporting reopening or remand to be material, previously unavailable, and undiscoverable or unpresentable at the former hearing.

Huang v. Ashcroft · filed 2004-11-04(c)(1)

The regulations governing motions to remand/reopen state in relevant part that “[a] motion to reopen proceedings shall not be granted unless it appears to [the BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. . . .” 8 C.F.R. § 1003.2(c)(1). ... These documents, however, do not meet the standard set out in § 1003.2(c)(1). The standard is conjunctive; the new evidence must be material and not available and not discoverable at the previous hearing. Thus, although the documents are material, they do not merit a remand because Huang offers no reason why the documents could not have been presented at the original hearing other than that he had not thought to present them. ... Under the plain language of § 1003.2(c)(1), Huang’s new documentary evidence was not sufficient cause to remand the proceedings to the IJ for further fact-finding. The BIA therefore did not abuse its discretion in refusing to do so.

Section 1003.2(c)(1) requires a movant seeking to reopen removal proceedings based on changed country conditions to provide evidence establishing prima facie eligibility for relief.

Singh v. Ashcroft · filed 2004-12-13(c)(1)

The BIA did not abuse its discretion in denying Singh’s motion to reopen to allow him to reapply for asylum and withholding of removal based on changed country conditions arising in India because Singh provided no evidence to establish prima facie eligibility for relief. 8 CFR § 1003.2(c)(1); see Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir.2003).

Section 1003.2(c)(2) limits an alien to one motion to reopen based on new facts and generally requires it to be filed within 90 days after the final administrative decision.

Akwada v. Ashcroft · filed 2004-11-10(c)(2)

Akwada is limited to filing one motion to reopen based on new facts, and he was required to file that motion no later than 90 days after the date on which the final administrative decision was rendered in his removal proceeding. 8 C.F.R. § 1003.2(c)(2). Akwada’s third motion to the BIA, properly construed as a motion to reopen to review new evidence pursuant to 8 C.F.R. § 1003.2(c), is time-barred.

Section 1003.2(c)(3)(i) exempts motions made under § 1003.23(b)(4)(iii)(A)(2) from the numerical limits on motions to reopen, but that exemption concerns deportation or exclusion proceedings rather than removal proceedings.

Joshi, Kalpana S. v. Ashcroft, John · filed 2004-11-19(c)(3)(i)

The Board, while relying on this limitation to deny the petitioner’s third motion (she asks us to review that denial as well, but review of it is clearly barred because of the number limitation), ignored it in denying the second and deemed it inapplicable to the fourth because of a regulation, 8 C.F.R. § 1003.2(c)(3)(i), which states that the “number limitations for motions to reopen do not apply to a motion pursuant to 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).” The latter subsection provides that a motion to reopen may be made at any time “if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien.” However, as is clear from the caption, the provision relates not to removal proceedings but to deportation or exclusion proceedings. A separate provision, 8 C.F.R. § 1003.23(b)(4)(ii), deals with removal proceedings and does not contain the language on which the Board relied in ruling that the one-motion limit did not apply to the petitioner’s fourth motion to reopen; on the contrary, this provision is explicit that only one motion to reopen a removal proceeding may be filed.

Section 1003.2(c) permits an alien to file a motion to reopen and remand only when new facts establish eligibility for the requested relief.

Zheng v. Eric H. Holder, Jr. · filed 2009-03-04(c)

An alien may file a motion to reopen and remand if there are new facts that establish eligibility for the relief sought.

Section 1003.2(c)(1) requires a motion to reopen to present facts that were unavailable and had not been discovered or presented at the former hearing.

Strato v. Ashcroft · filed 2004-11-12(c)(1)

New facts presented in a motion to reopen must be facts that were not available and had not been discovered at the time of the hearing before the IJ. 8 C.F.R. § 1003.2(c)(1). Here, the specific facts forming the basis of Strato and Lloli’s motion remained unspoken at the hearing, not because the facts were unavailable for presentation, but because the IJ excluded them on relevancy grounds. Strato and Lloli’s argument is therefore more properly characterized as a legal argument that the available evidence was improperly excluded.

An out-of-time motion to reopen may be granted only when it presents material new facts that were unavailable and could not have been discovered or presented at the prior hearing.

HAJDARI v. Holder · filed 2011-12-05(c)(1)

Anyway, if he had any such ground and wanted to challenge his waiver, the time to do so was in the original proceedings and not by motion to reopen.

The exception permits reopening despite the usual motion-to-reopen limits when changed circumstances in the country of nationality could not have been discovered or presented at the removal hearing; evidence that merely repeats the original claim, was previously available, or is cumulative does not qualify.

Grewal v. Ashcroft · filed 2004-11-18(c)(3)(ii)

The evidence presented simply shows that the Indian government is still searching for Grewal. This was his claim at the immigration hearing, where he testified that the police had even followed him to the neighboring state of Delhi looking for him. Further, much of the evidence that was presented in the second motion to reopen should have been available at the time of the first, and the remainder was cumulative. The BIA did not abuse its discretion in finding that the exception in 8 C.F.R. § 1003.2(c)(3)(ii) was not pertinent here.

A motion to reopen may be denied when the material evidence offered was available and could have been discovered or presented at the former hearing.

Agyemang-Tuffour v. Ashcroft · filed 2004-12-01(c)(1)

Petitioner’s July 14, 2003 motion to reopen could have been denied on this basis. 8 C.F.R. § 1003.2(c)(1) provides that “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”

Section 1003.2(a) gives the Board of Immigration Appeals unfettered discretion to deny a request to reopen proceedings sua sponte, so that discretionary relief does not create a protected liberty interest.

Carmona v. Ashcroft · filed 2004-12-13(a)

Section 1003.2(a) gives the BIA “unfettered discretion” to deny petitioner’s request to reopen her case sua sponte.

Section 1003.2 requires motions to reopen to be filed within 90 days subject to specified exceptions and requires motions to reconsider to be filed within 30 days and identify errors of fact or law in the prior Board decision.

Ruballos v. Ashcroft · filed 2004-12-13(c)(2), (c)(3), (b)(2), and (b)(1)

The BIA did not abuse its discretion in denying Ruballos’s motion to reopen. Ruballos filed her motion to reopen on June 27, 2003, more than six months after the BIA issued its final order of removal on October 17, 2002. See 8 C.F.R. § 1003.2(c)(2) (a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”). No exceptions to the 90 day limitation apply in this case. See 8 C.F.R. § 1003.2(c)(3) (setting forth exceptions to 90 day limitation). Because Ruballos’s motion to reopen was untimely, we do not reach the merits of her ineffective assistance of counsel claims.- See Iturribarria v. INS, 321 F.3d 889, 895-96 (9th Cir.2003) (holding that ineffective assistance of counsel claim appropriately raised in motion to reopen).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days after the final administrative decision, while § 1003.2(c)(3)(ii) permits a motion based on changed country conditions only when the evidence is material and was previously unavailable and undiscoverable or unpresentable.

Sarkar v. Ashcroft · filed 2004-12-15(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying Petitioners’ motion to reopen because it was filed seven months after the BIA’s final decision, and did not present evidence of changed circumstances in Bangladesh that was unavailable at the time of their previous hearing. See 8 C.F.R. § 1003.2(c)(2) (A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”); 8 C.F.R. § 1003.2(c)(3)(ii) (motion to reopen may be filed based on changed country conditions if such evidence is material and was unavailable and could not have been discovered or presented at the previous hearing).

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within ninety days, while § 1003.2(c)(3)(ii) provides an exception for qualifying changed-country-conditions motions and § 1003.2(c)(1) places the burden on the movant to submit supporting evidence.

Lin v. Filip · filed 2009-01-30(c)(2), (c)(3)(ii), and (c)(1)

The Immigration and Nationality Act (“INA”) and its implementing regulations require that a motion to reopen be filed within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This time limitation, however, does not apply when the motion to reopen is filed in order to apply for asylum or withholding of removal “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). ... Indeed, it was Lin’s burden to present evidence to support her motion. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(a) authorizes the BIA to reopen sua sponte a case only when it has rendered a decision in that case.

Aideyan v. Ashcroft · filed 2004-12-15(a)

The BIA properly denied petitioner’s second motion to reopen filed July 7, 2003. Because petitioner did not appeal the immigration judge’s (“IJ”) June 4, 1999 order, the BIA never rendered a decision on that order. Consequently, the BIA lacked authority to consider petitioner’s substantive request to reopen. See 8 C.F.R. § 1003.2(a) (the BIA may reopen sua sponte “any case in which it has rendered a decision”).

Section 1003.2(b)(1) requires a motion for reconsideration to identify errors of fact or law in the prior BIA order.

Barreras v. Holder · filed 2009-03-09(b)(1)

The BIA did not abuse its discretion by denying petitioner’s motion for reconsideration because the motion failed to identify any errors of fact or law in the BIA’s April 24, 2008 order.

Section 1003.2(b)(1) requires a motion to reconsider to identify an error of law or fact in the prior decision.

Balenton v. Holder · filed 2009-03-04(b)(1)

The BIA did not abuse its discretion in denying Balenton’s motion to reconsider because the motion failed to identify any error of law or fact in the BIA’s January 24, 2006, 2006 WL 448276, order.

Section 1003.2(b)(1) requires a motion to reconsider to identify errors of law or fact in the BIA’s decision.

Hernandez-Espinoza v. Ashcroft · filed 2004-12-08(b)(1)

As the BIA noted, Hernandez-Espinoza’s motion to reconsider did not comply with the regulations governing motions to reconsider because it failed to identify any errors of law or fact in the BIA’s decision.

Section 1003.2(c)(1) permits the BIA to deny an untimely motion to reopen when the supporting evidence does not establish prima facie eligibility for the underlying relief sought.

Assaad v. Ashcroft · filed 2004-12-15(c)(1)

The BIA did not abuse its discretion by denying Assaad’s untimely motion to reopen because the evidence supporting the motion did not establish prima facie eligibility for asylum or withholding of deportation based upon changed country conditions. See 8 C.F.R. §§ 1003.2(c)(1) & (c)(3)(h); INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (the BIA may deny a motion to reopen if “the movant has not established a prima facie case for the underlying substantive relief sought”).

Section 1003.2(a) gives the Board discretion over motions to reopen, while § 1003.2(c)(1) requires material evidence that was not previously available and could not have been discovered or presented at the former hearing.

Dedaj v. Atty Gen USA · filed 2004-12-21(a), (c)(1)

Motions to reopen are governed by Title 8 of the Code of Federal Regulations, Section 1003.2. Wether to reopen a case is a decision within the discretion of the board. 8 C.F.R. § 1003.2(a). ... Indeed, the Board may deny such a motion even if the party makes out a prima facie case for relief. 8 C.F.R. § 1003.2(a); Abudu, 485 U.S. at 105-6. ... The relevant regulation is written in the negative and provides that motions to reopen “shall not be granted unless” the evidence offered by the Petitioner is “material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(a) gives the BIA discretion to deny a motion to reopen even when the movant has made a prima facie case for relief.

De Ramirez v. Ashcroft · filed 2005-01-18(a)

The BIA acted within its broad discretion to deny Soto-Cruz de Ramirez’s motion to reopen and did not deprive her of her rights to due process. 8 C.F.R. § 1003.2(a) (stating that the BIA “has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief’); see also SalvadorCalleros v. Ashcroft, 389 F.3d 959, 963 (9th Cir.2004).

Section 1003.2(c)(1) requires reopening evidence to be new and previously unavailable; a later birth qualifies, while a pregnancy known before the hearing does not.

Chen v. Atty Gen USA · filed 2004-12-28(c)(1)

We reject the BIA’s determination that Petitioners should have come forward with the fact of Chen’s pregnancy and therefore failed to present new and previously unavailable evidence. Only Chen’s giving birth, not her pregnancy, would have been grounds for relief, so the presentation of her pregnancy alone would not have been a basis for reopening and the presentation of the birth of the children after the January hearing was new and previously unavailable evidence.

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days after the final administrative decision, and a motion filed more than two years later is untimely.

Singh v. Gonzales · filed 2005-04-04(c)(2)

The BIA did not abuse its discretion in denying Singh’s second motion to reopen as untimely, because Singh filed the motion more than two years after the BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2) (A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.”).

Section 1003.2(c)(2) generally limits a party to one motion to reopen deportation or exclusion proceedings, subject to limited exceptions.

Xiu Gen Lin v. United States Department of Justice · filed 2005-04-05(c)(2)

At all times relevant to Lin’s petition, the Immigration and Naturalization Service regulations governing motions to reopen have provided that “a party may file only one motion to reopen deportation or exclusion proceedings,” subject to limited exception. ... Because the BIA decision on review before us denied Lin’s motion to reopen pursuant to the numerical limits prescribed by INS regulations, and as Lin has not demonstrated that his case falls within an exception to those regulations, the BIA did not abuse its discretion in denying the motion.