8 C.F.R. § 1003.2

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days after the BIA's dismissal of the appeal, subject to applicable exceptions such as equitable tolling.

Dege v. Gonzales · filed 2005-02-22(c)(2)

Dege filed her motion to reopen more than a year after the BIA dismissed her appeal, and well beyond the statutorily required 90 day period. See 8 C.F.R. § 1003.2(c)(2); Iturribarria, 321 F.3d at 895. Although we have applied equitable tolling in cases involving ineffective assistance of counsel, Dege offers no explanation for why she did not file the motion until over a year after she obtained new counsel. See Iturribarria, 321 F.3d at 897, *314899 (requiring due diligence and concluding limitations period began when petitioner met with new counsel). Accordingly, the BIA did not abuse its discretion in denying as untimely Dege’s motion to reopen.

Section 1003.2(b)(1) treats a motion to reconsider as challenging the BIA’s legal or factual determinations, while subsection (c) governs motions to reopen based on new facts supporting relief.

Mohammed v. Alberto R. Gonzales, Attorney General, Khadija Ahmed Mohamed v. Alberto R. Gonzales, Attorney General · filed 2005-03-10(b)(1), (c)

A motion to reconsider does not present new law or facts, but rather challenges determinations of law and fact made by the BIA. 8 C.F.R. § 1003.2(b)(1); see also Iturribarria, 321 F.3d at 895-96; Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc). In contrast, a motion to reopen seeks to present new facts that would entitle the alien to relief from deportation. See 8 C.F.R. § 1003.2(c); see also Socop-Gonzalez, 272 F.3d at 1180.

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

Desoguste v. United States Attorney General · filed 2005-06-10(c)(1)

The regulation that governs motions to reopen before the BIA states that a motion to reopen may 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). ... Because Desoguste claims that he was married on December 20, 2002, there is no reason to believe that these items were “not available and could not have been discovered or presented” at the time of his April 21, 2003 motion to reopen.

Section 1003.2(a) gives the BIA discretion to reopen proceedings at any time, including outside the regulatory time limits in appropriate cases.

Etchu-Njang v. Alberto Gonzales, Attorney General of the United States of America, 1 · filed 2005-04-08(a)

The BIA has developed procedures to consider motions to reopen based on claims of ineffective assistance of counsel, Matter of Lozada, 19 I. & N. Dec. 637(BIA), and it retains discretion to reopen proceedings at any time. 8 C.F.R. § 1003.2(a). Indeed, the agency has reopened proceedings outside the regulatory time limits to consider claims of ineffective assistance of counsel based on its discretionary authority or on equitable principles. E.g., IN RE DEVKI NANDAN BALI, 2005 WL 649048 (BIA Feb. 2, 2005) (unpublished); In re Bassel Ndbih Assaad, 23 I. & N. Dec. 553, 563 n. 4 (BIA 2003).

Section 1003.2(b)(1) requires a motion to reconsider to identify a legal or factual error in the prior decision.

Olic v. Gonzales · filed 2005-04-11(b)(1)

The BIA did not abuse its discretion when it denied Olic’s instant motion to reconsider because he failed to articulate a legal or factual error in the BIA’s denial of his motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.2003).

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

Villafan v. Gonzales · filed 2005-04-11(b)(1)

The BIA did not abuse its discretion in denying Petitioners’ motion for reconsideration because they failed to identify an error of fact or law in the BIA’s earlier dismissal of their appeal. 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”).

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

Mahadevan v. Ashcroft · filed 2005-04-22(b)(1)

We find no abuse of discretion in the BIA’s denial of Mahadevan’s motion to reconsider, as it was based solely on arguments Mahadevan had already raised when he initially sought review from the BIA. See 8 C.F.R. § 1003.2(b)(1) (2004) (motion to reconsider shall state reasons for motion by specifying errors of fact or law in prior BIA decision, and shall be supported by pertinent authority); Strato, 388 F.3d at 655 (motion to reconsider must give tribunal to which it is addressed reason for changing its decision; there is no reason to grant such motion if it merely reiterates reasons that failed to convince tribunal in first place).

Section 1003.2(b) requires a motion to reconsider to state its reasons by identifying errors of fact or law in the prior Board decision and citing pertinent authority.

Li v. Immigration & Naturalization Service · filed 2005-05-23(b)

Accordingly, a motion to reconsider must specify the errors of fact or law in the challenged BIA decision, and must be supported by pertinent authority as “a motion for reconsideration asks the Board to reevaluate its decision on the existing factual record.” Zhao v. United States DOJ, 265 F.3d 83, 90, 91 (2d Cir., 2001); see 8 C.F.R. § 1003.2(b) (“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law m the prior Board decision and shall be supported by pertinent authority.”).

Section 1003.2(b)(2) limits an alien in removal proceedings to one motion to reconsider a given decision and requires filing within 30 days of the decision's entry.

Piedracruz v. Mukasey · filed 2009-01-28(b)(2)

An alien in removal proceedings is limited to filing one motion to reconsider any given decision, and that motion must be filed within 30 days of the date of entry of that decision. 8 C.F.R. § 1003.2(b)(2). Because petitioner’s motion was filed beyond the 30-day deadline, and petitioner has not contended that any exceptions to this time limit apply, the BIA did not abuse its discretion in denying petitioner’s untimely motion to reconsider.

Section 1003.2(b)(2) limits an alien to one motion to reconsider a final removal order and requires the motion to be filed within 30 days of the order's entry.

Arredondo-Candelas v. Mukasey · filed 2009-01-28(b)(2)

An alien who is subject to a final order of removal is limited to filing one motion to reconsider that decision, and the motion must be filed within 30 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(6)(A), (B); 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(b)(2) requires a motion to reconsider a Board decision to be filed within 30 days after the decision is mailed.

Singh v. Gonzales · filed 2005-04-11(b)(2)

The BIA did not abuse its discretion by denying as untimely Singh’s motion for reconsideration because he failed to file it within thirty days of the BIA’s decision. 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”).

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

Singh v. Gonzales · filed 2005-04-11(c)(2)

The BIA properly held that Singh’s motion to reopen was untimely because Singh filed it more than five months after the final administrative decision. See 8 C.F.R. § 1003.2(c)(2) (generally requiring that a motion to reopen be filed within 90 days after a final decision is rendered).

Subsection (c)(2) imposes a 90-day deadline for filing a motion to reopen deportation proceedings.

Jodelka v. Ashcroft · filed 2005-06-01(c)(2)

First, the BIA explained in its October 10, 2003, decision that Jodelka’s motion to reopen his deportation proceedings was received over three years later than is required by statute. See CAR at 2; 8 C.F.R. § 1003.2(c)(2). Jodelka does not dispute that he missed the filing deadline for his motion, and we hold in the circumstances presented that the BIA was neither “arbitrary” nor “capricious” in denying Jodelka’s motion.

Section 1003.2(a) places the grant or denial of a motion to reopen within the Board of Immigration Appeals' discretion.

Jiang v. Gonzales · filed 2005-04-19(a)

We have reviewed the record and the Board’s order and find that the Board did not abuse its discretion in denying the motion to reopen. See 8 C.F.R. § 1003.2(a) (2004) (grant or denial of motion to reopen is within the discretion of the Board); INS v. Doherty, 502 U.S. 314, 323-24 (1992); Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999).

Section 1003.2 permits an alien to file a motion to reopen with the BIA while a petition for review is pending.

Kornetskyi v. Gonzales · filed 2005-04-28

Regulations, however, permit an alien to file a motion to reopen with the BIA even while a petition for review pends. See 8 C.F.R. § 1003.2.

The one-motion numerical limit in § 1003.2(c)(2) does not apply to a motion to reopen or remand filed before a final administrative decision.

Akhtar v. Gonzales · filed 2005-04-29(c)(2)

Akhtar’s Motion to Stay Proceedings, which the Board construed as “essentially one to remand,” was filed in the absence of a final administrative decision because the Board had not yet rendered a decision on the merits of his appeal. See In re L-V-K-, 22 I. & N. Dec. 976, 979 (BIA 1999). As such, Akhtar’s Motion to Stay Proceedings, even if properly construed by the Board as a motion to remand, and thus in substance a motion to reopen, was not subject to the numerical limitations of 8 C.F.R. § 1003.2(c)(2). Consequently, the Board failed to apply properly its own regulations, and therefore, abused its discretion in concluding that Akhtar’s January 2004 Motion to Reopen was barred by “numerical limitations.”

Section 1003.2(c)(2) imposes a numerical limitation on motions to reopen.

Cano-Perez v. Gonzales · filed 2005-05-26(c)(2)

The BIA did not abuse its discretion in concluding that Cano-Perez’s second motion to reopen was barred by the numerical limitation contained in 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 Board of Immigration Appeals' order, unless an applicable exception, such as changed circumstances, applies.

Kaur v. Immigration & Naturalization Service · filed 2005-06-01(c)(2)

Petitioner has not suggested, and we do not discern, any manner in which the BIA acted arbitrarily or capriciously in denying petitioner’s motion as untimely. Petitioner was required to file her motion to reopen within 90 days of the BIA’s June 11, 2002, order. See 8 C.F.R. § 1003.2(c)(2). Her actual filing on December 16, 2002, was over 60 days late. Untimeliness is a complete bar to the motion unless petitioner could establish that an exception to the time limit applied. Petitioner appeared to rely on the exception for changed circumstances, but her motion papers made reference only to events that occurred prior to her original filing for asylum in 1997. Therefore petitioner did not present any evidence to establish changed circumstances, and the BIA did not abuse its discretion in finding the exception inapplicable and denying the motion as untimely.

Section 1003.2(c)(1) requires a movant seeking reopening or remand to establish prima facie eligibility for the requested relief.

Zeinalov v. Gonzales · filed 2005-05-02(c)(1)

As such, he was required to demonstrate prima facie eligibility in order to meet the evidentiary standard. See 8 C.F.R. § 1003.2(c)(1).

A motion to remand that introduces previously unpresented evidence is generally treated as a motion to reopen and must satisfy the substantive requirements for a motion to reopen.

Mrizaj v. U.S. Attorney General · filed 2005-05-03(c)

“[I]f a motion to remand seeks to introduce evidence that has not previously been presented, it is generally treated as a motion to reopen under 8 C.F.R. § 3.2(c) [now 8 C.F.R. § 1003.2(c)].” Najjar v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001). “Where the motion is treated as one to reopen, the pleading should be subjected to the substantive requirements for such a motion.” Id.

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

Agredo-Munoz v. U.S. Atty. Gen. · filed 2005-05-03(b)(1)

Under the regulations, a motion for reconsideration must specify “the errors of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1).

A motion to reopen must state the new facts to be proved at a hearing and be supported by affidavits or other evidentiary material.

Taneja v. Board of Immigration Appeals · filed 2005-05-11(c)(1)

In any event, even if the BIA did have jurisdiction to rule on the motion, denial of the motion on the merits would have been warranted because Taneja failed to set forth new evidence regarding his alleged illness and fitness to attend the October 23, 2000 hearing before the immigration judge. 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 *329held if the motion is granted and shall be supported by affidavits or other evidentiary material.”).

Section 1003.2(c)(1) requires a motion to reopen to state the new facts to be proven, be supported by evidence, and offer material evidence that was unavailable and could not have been presented at the former hearing.

Singh v. United States Immigration & Naturalization Service · filed 2005-05-16(c)(1)

Such motions are governed by 8 C.F.R. § 1003.2(c), which, in relevant part, provides that the motion “shall state the new facts that will be proven ... and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 3.2(c)(1) (recodified at 8 C.F.R. § 1003.2(c)(1) and referred to herein as such). Reopening “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 be discovered or presented at the former hearing....” Id. ... Having reviewed the petitioner’s affidavit and the news reports submitted to the BIA in support of the motion to reopen, we conclude that the BIA did not abuse its discretion in concluding that Singh failed to satisfy the requirements of 8 C.F.R. § 1003.2(c). First, Singh does not assert that similar news reports were not available at the time his asylum and withholding claims were being considered by the IJ. Further, the reports were too general to be material to Singh’s relief claims.

Section 1003.2(c)(1) bars reopening unless the supporting evidence is material and was unavailable and could not have been discovered or presented at the prior hearing, subject to its stated exceptions.

Fernandez v. U.S. Attorney General · filed 2005-06-06(c)(1)

We have held that, “[a]t a minimum, there are at least three independent grounds upon which the Board may deny a motion to reopen: 1) failure to establish a prima facie case; 2) failure to introduce evidence that was material and previously unavailable; and 3) a determination that despite the alien's statutory eligibility for relief, he or she is not entitled to a favorable exercise of discretion.” ... Here, it cannot be said that the BIA abused its discretion by denying Fernandez’s motion to reopen, especially in light of ground (2) above, the failure to introduce evidence that was material and previously unavailable.

Section 1003.2(c)(1) allows evidence submitted with a motion to reopen to be considered only if it is material, previously unavailable, and could not have been discovered or presented at the initial hearing.

Zheng v. United States Department of Justice, John Ashcroft, United States Attorney General · filed 2005-05-20(c)(1)

And while it is true, as petitioner notes, that an alien is invited “to submit previously unavailable evidence in support of one’s claim” in a motion to reopen, the regulations unequivocally provide that such evidence will only be considered if it (1) is material, (2) was not previously available, and (3) could not have been discovered or presented at the initial hearing. See Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir.2004) (citing 8 C.F.R. § 1003.2(c)(1)). Because Zheng made no effort to demonstrate that the affidavits and additional documentary evidence she submitted in support of her motion to reopen met these requirements, the BIA was not obligated to consider them.

Section 1003.2(c)(1) requires a motion to reopen to include affidavits or other evidentiary material intended for a new hearing, and failure to make the required prima facie showing supports denial.

Mustafa v. Gonzales · filed 2005-05-25(c)(1)

Mustafa’s motion to reopen was required to supply affidavits or other evidentiary material that he intended to use in a new hearing. Guevara v. INS, 786 F.2d 1242, 1247 (5th Cir. 1986); 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1). ... In failing to furnish any credible evidence that Belini operates outside the law with the acquiescence of the Albanian government, Mustafa has failed to make out a prima facie case for asylum. It is well-settled that a deficiency in this respect is a proper basis for denying a motion to reopen.

Section 1003.2(c)(2) generally imposes a 90-day deadline for motions to reopen, subject to equitable tolling for ineffective assistance when due diligence is shown, while § 1003.2(c)(3)(ii) exempts material, previously unavailable evidence of changed country conditions from that deadline.

Diallo v. Gonzales · filed 2005-05-23(c)(2), (c)(3)(ii)

The BIA correctly acknowledged the law in this circuit permitting equity to toll the 90-day filing limitation of 8 C.F.R. § 1003.2(c)(2) when an alien demonstrates that (1) “his constitutional right to due process has been violated by the conduct of counsel,” and (2) he has “exercised due diligence in pursuing the case diming the period [he] seeks to toll.” ... The 90-day statute of limitations for motions to reopen does not apply to claims of “changed circumstances arising in a 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. § 1003.2(c)(3)(ii) (2005). Although the country conditions in Guinea are turbulent, the 2002 Department of State Country Report on Guinea and the article submitted by Diallo do not indicate that country conditions have substantially changed since Diallo’s October 5, 1998 hearing before the Immigration Judge.

The changed-circumstances exception to the 90-day reopening deadline applies only when the changed circumstances occur in the country of nationality or the country to which deportation was ordered; a personal religious conversion does not qualify.

Zouaoui v. Gonzales · filed 2005-05-24(c)(3)(ii)

The regulation requires, however, that the “changed circumstances” occur in the “country of nationality or country to which deportation has been ordered.” See 8 C.F.R. § 1003.2(c)(3)(ii). Zouaoui’s religious conversion, a changed personal circumstance, does not fall into either category.

Section 1003.2(b) requires a motion to reconsider to identify specific legal or factual errors, while § 1003.2(c)(1) requires reopening evidence to be material and unavailable at the former hearing.

Singh v. Board of Immigration Appeals · filed 2005-06-01(b), (c)(1)

We presume that the BIA construed Singh’s motion as a motion to reconsider, in part, due to ambiguity in Singh’s filings. The BIA correctly determined that Singh’s motion to reconsider failed because it did not identify any specific legal or factual errors. See 8 C.F.R. § 1003.2(b). Singh’s claim would also fail if we were to construe his motion as a motion to reopen because he did not properly present new evidence. For instance, the additional documents Singh provided with his motion were either immaterial to Singh’s specific claim or available at the time of the former hearing. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires evidence offered in support of reopening to be material and previously unavailable.

Falae v. Ashcroft · filed 2005-06-09(c)(1)

He also must show that the evidence sought to be introduced on remand is material and that it was not previously available. See 8 C.F.R. § 1003.2(c)(1); see also Fesseha, 333 F.3d at 20.

Section 1003.2(c)(1) treats evidence as new only if it was unavailable at the time of the former hearing.

Gonfa v. Gonzales · filed 2005-05-25(c)(1)

Motions to reopen should be granted when they are based on “new” evidence where “the new evidence is qualitatively different from the evidence presented at his asylum hearing.” See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004); see also 8 C.F.R. § 1003.2(c)(1) (2005) (defining new evidence as evidence that was not available at the time of the former hearing). Here, Gonfa presents affidavits, pictures, and a newspaper clipping in support of her motion to reopen. While arguably material, this additional evidence is not new be*188cause, with the exception of the May 2000 copy of the Ethiopian Herald, it all was available at the time of her 1999 hearing before the IJ.

Section 1003.2(c)(1) requires a motion to reopen to present material evidence that was previously unavailable, while § 1003.2(a) leaves reopening to the BIA's discretion.

Michael Olusean Falae, A/K/A Vincent Olanrewaju Adeyemi v. Alberto R. Gonzales, Attorney General · filed 2005-06-09(c)(1) and (a)

Motions to reopen are disfavored in immigration practice because of the compelling public interests in finality and the expeditious processing of proceedings. ... At a bare minimum, the movant must make a showing of prima facie eligibility for the relief that he seeks. ... He also must show that the evidence sought to be introduced on remand is material and that it was not previously available. ... Even if he satisfies these threshold conditions, he is not home free; he still must persuade the BIA to exercise its discretion affirmatively and order the case reopened.

Section 1003.2(a) commits motions to reopen or reconsider to the BIA’s discretion, while § 1003.2(c)(1) requires a motion to reopen to present new facts supported by affidavits or other evidentiary material that would be proven at a hearing if granted.

Singh v. Board of Immigration Appeals · filed 2005-06-28(a), (c)(1)

We review for an abuse of discretion the BIA’s denial of the motion to reopen. See Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000); see also 8 C.F.R. § 3.2(a) (2003) (decision on motion to reconsider or to reopen committed to BIA’s discretion) (re-codified at 8 C.F.R. § 1003.2(a) (2005)). In his motion to reopen, Singh failed to set forth “new facts” that were “supported by affidavits or other evidentiary material” to “be proven at a hearing to be held if the motion [were] granted.” 8 C.F.R § 3.2(c)(1) (2003) (recodified at 8 C.F.R. § 1003.2(c)(1) (2005)). Indeed, Singh failed to allege any new facts and merely repeated the factual claims made in his asylum application. Furthermore, of the eighteen articles submitted in support of the motion to reopen, sixteen pre-dated the BIA’s January 2003 order affirming the IJ’s removal order and Singh failed to explain why they had been previously unavailable. The remaining two articles report on incidents of harassment of Sikhs in India; however, in the absence of any new factual allegations, these articles offered no support to his motion to reopen. The BIA’s denial of the motion was therefore not an abuse of its discretion.

Section 1003.2(b)(2) limits the number of motions to reconsider, while § 1003.2(c)(2) imposes a 90-day deadline on motions to reopen.

Fan v. Gonzales · filed 2005-06-13(b)(2), (c)(2)

We agree with the Board that the motion should be construed as Fan’s second motion to reconsider. As such, it exceeds the number limitations of 8 U.S.C. § 1229a(c)(5)(A) (2000) and 8 C.F.R. § 1003.2(b)(2) (2005). Even construing the motion as a motion to reopen, it is beyond the ninety-day deadline of 8 U.S.C. § 1229a(6)(C)(i) (2000) and 8 C.F.R. § 1003.2(c)(2) (2005).

Section 1003.2(a) permits the Board to grant reconsideration when a motion properly identifies a legal error in the Board’s decision.

Theagene v. Gonzales · filed 2005-06-14(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. 8 C.F.R. § 1003.2(a), 1003.2(b)(1).

Section 1003.2 requires a motion to reopen to present new, material, previously unavailable evidence and supporting affidavits or other evidentiary materials, permits the BIA to deny reopening in its discretion, and requires a reconsideration motion to specify errors of fact or law in the prior decision.

Pinzon v. U.S. Attorney General · filed 2005-06-14(c)(1), (c), (a), and (b)(1)

The BIA has the authority to grant a motion to reopen if there is new evidence that is material and was not available and could not have been discovered or presented at the removal hearing. See 8 C.F.R. §§ 1003.2(c)(1) & 1003.23(b)(3). The movant must submit “affidavits or other evidentiary materials.” 8 C.F.R. § 1003.2(c). However, the BIA has the discretion to deny the motion even if the moving party has met its prima-facie burden to reopen. 8 C.F.R. § 1003.2(a). ... Under the regulations, a motion for reconsideration must specify “the errors of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1). ... The Petitioners failed to specify any “errors of fact or law” in the prior BIA decision, but rather only argued that the evidence the Petitioners presented should be “sufficient” to grant asylum. 8 C.F.R. § 1003.2(b)(1). As the Petitioners did not specifically address errors of fact or law, the BIA did not abuse its discretion in denying the Petitioners’ motion.

Section 1003.2 permits a party to seek reconsideration or reopening before the BIA, but granting or denying that motion is discretionary and it is not a remedy available as of right.

Salamone v. Mullin · filed 2005-06-20

The only action that Salamone conceivably could have taken to raise his arguments under § 212(c) once the BIA reversed the IJ’s grant of § 212(h) relief would have been to file a motion to reconsider or reopen pursuant to 8 C.F.R. § 1003.2. However, because the grant or denial of a motion to reconsider or reopen is completely discretionary, such a motion cannot be a remedy available “as of right.”

Section 1003.2(d) bars a person from filing a motion to reopen or reconsider after departing the United States only when removal proceedings had already commenced before the departure.

Singh v. Gonzales · filed 2005-06-23(d)

The Board interpreted this regulation to mean that any time a petitioner files a motion to reopen after departing the country, the motion is barred. The Board’s interpretation forgets a fundamental premise: the scope of this regulation is clearly limited to persons who depart the U.S. after removal proceedings have already commenced against them. Removal proceedings would have to commence before a motion to reopen or reconsider is procedurally possible. Thus, the plain language of this regulation is limited to persons who depart the U.S. after removal proceedings have already commenced against them. The regulation does not encompass the novel factual situation presented here — i.e., a petitioner who first departs the U.S., then becomes the subject of removal proceedings, returns, and files a motion to reopen. ... The sentence as a whole is taken 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. ... The clause “who is the subject of . . . removal proceedings” cannot modify two things at the same time, thus the Board’s interpretation of 8 C.F.R. § 1003.2(d) was clearly erroneous. Mr. Singh was not the “subject of . . . removal proceedings” at the time he left the U.S., so § 1003.2(d) did not operate to remove the Board’s jurisdiction to consider Singh’s motion to reopen.

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

Lopez-Santacruz v. Gonzales · filed 2005-06-14(c)(2)

A motion to reopen must be filed within 90 days of date of the BIA decision. 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days after the final administrative decision, but equitable tolling can render a late motion timely.

Zaidi v. Gonzales · filed 2005-06-17(c)(2)

A motion to reopen is due “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)(2). Because Zaidi promptly retained new counsel after obtaining his case file from Harris, and filed the motion within 90 days of discovering the file’s contents, equitable tolling rendered the motion timely.

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

Chahal v. Gonzales · filed 2005-06-22(c)(2)

The BIA did not abuse its discretion in denying Chahal’s second motion to reopen, to adjust status and seek asylum, because Chahal filed his motion on December 5, 2003, more than eight years after the May 1, 1995 deadline, 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”), and failed to demonstrate changed country conditions in India, see Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir.1999) (upholding denial of motion to reopen where petitioner introduced evidence that was too general in nature to demonstrate a well-founded fear of persecution).

Section 1003.2(b)(2) requires a motion to reconsider to be filed within thirty days of the Board's decision.

Kebe, Getu Hailu v. Gonzales, Alberto R. · filed 2005-06-15(b)(2)

The BIA correctly stated that Kebe had thirty days from its decision to file the motion to reconsider. 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(c)(1) permits reopening only when the new evidence is material and was unavailable, undiscoverable, or unpresentable at the former hearing.

Manzano-Garcia v. Gonzales · filed 2005-06-15(c)(1)

Under 8 C.F.R. § 1003.2 (formerly 8 C.F.R. § 3.2), the BIA could not grant the motion to reopen unless it found that Mr. Manzano’s new evidence 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) (emphasis added).

Section 1003.2(c)(1) requires an applicant seeking reopening to show that the supporting evidence was unavailable before the prior hearing.

Eta-Ndu v. Ashcroft · filed 2005-06-23(c)(1)

The BIA denied Eta-Ndu's motion because he did not present "new evidence." Eta-Ndu failed to adequately explain why the profferred evidence was "unavailable at the time of the hearing before the IJ." See 8 C.F.R. § 1003.2(c)(1). ... Neither explanation proves the evidence was "unavailable" to Eta-Ndu prior to the April 1998 or the November 2000 hearings, nor do the explanations prove prejudice to Eta-Ndu. ... Accordingly, the BIA did not abuse its discretion by denying Eta-Ndu's motion to reopen and remand.

Section 1003.2(c)(3)(ii) allows a motion to reopen based on changed country conditions only when the new evidence is material to the applicant's claims for relief.

Velasquez-Figueroa v. Gonzales · filed 2005-06-17(c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen because the evidence of changed country conditions Velasquez-Figueroa submitted was not material to his claims for relief. See 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires new facts supported by evidence and unavailable at the prior hearing, while § 1003.2(c)(3)(ii) permits reopening based on qualifying changed country conditions.

Hossain v. Gonzales · filed 2005-06-28(c)(1), (c)(3)(ii)

Hossain failed to set forth “new facts” that were “supported by affidavits or other evidentiary material” to “be proven at a hearing to be held if the motion [was] granted,” 8 C.F.R § 3.2(c)(1) (2003) (redesignated 8 C.F.R. *423§ 1008.2(c)(1) (2005)), that would have demonstrated sufficient “changed circumstances” in Bangladesh to justify a motion to reopen, 8 C.F.R. § 3.2(c)(8)(ii) (2003) (redesignated 8 C.F.R. § 1003.2(c)(3)(ii) (2005)). ... The documents that Hossain attempted to file with the BIA, both during his first administrative appeal and in his motion to reopen, bear fax dates prior to the date of the original IJ proceeding. Thus, Hossain has failed to show that the documents were “not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 3.2(c)(1) (2003) (redesignated 8 C.F.R. § 1003.2(c)(1) (2005)).

Section 1003.2(c)(2) imposes time and numerical limits on motions to reopen, while § 1003.2(c)(3)(ii) allows reopening based on materially changed circumstances relevant to the asylum claim.

Grigorove v. Gonzales · filed 2005-06-22(c)(2) and (c)(3)(ii)

Accordingly, the BIA did not abuse its discretion in denying Grigorove’s motion to reopen as he failed to meet the time and numerical requirements of 8 C.F.R. § 1003.2(c)(2) and did not demonstrate changed circumstances material to his asylum claim pursuant to 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) permits only one motion to reopen and requires it to be filed within 90 days after the final administrative decision.

Abouelela v. Atty Gen USA · filed 2005-07-13(c)(2)

The governing regulation provides that “a party may file only one motion to reopen . . . and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered. . . .” 8 C.F.R. § 1003.2(c)(2). The BIA held, not unreasonably, that petitioner’s second motion failed to meet either the numerical or time limitation.

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

Singh v. Gonzales · filed 2005-06-22(b)(1)

Singh submitted new evidence of ineffective assistance of counsel with his motion to reconsider, but did not identify any error of fact or law in the BIA’s denial of his underlying motion to reopen as required by 8 C.F.R. § 1003.2(b)(1). Accordingly, the BIA did not abuse its discretion in denying Singh’s motion to reconsider.

Section 1003.2(c)(1) requires evidence supporting a motion to reopen to have been unavailable at the time of the prior hearing.

Jacob Eta-Ndu Catherine Eta-Ndu Danielle Eta-Ndu and Gwladys Eta-Ndu v. Alberto Gonzales, Attorney General of the United States of America · filed 2005-06-23(c)(1)

The BIA denied Eta-Ndu’s motion because he did not present “new evidence.” Eta-Ndu failed to adequately explain why the proffered evidence was “unavailable at the time of the hearing before the IJ.” See 8 C.F.R. § 1003.2(c)(1). He did not show why such evidence was unavailable either in 1998 or before the close of evidence on November 7, 2000.

Section 1003.2(d) bars a motion to reopen only when the person departs the United States after removal proceedings have already commenced; it does not bar a person who departs first, then becomes subject to proceedings, returns, and files the motion.

Singh v. Alberto R. Gonzales, Attorney General · filed 2005-06-24(d)

The regulation does not encompass the novel factual situation presented here— i.e., a petitioner who first departs the U.S., then becomes the subject of removal proceedings, returns, and files a motion to reopen. ... Mr. Singh was not the “subject of ... removal proceedings” at the time he left the U.S., so § 1003.2(d) did not operate to remove the Board’s jurisdiction to consider Singh’s motion to reopen.

A motion to reopen must state the new facts to be proven at a hearing and support them with affidavits or other evidentiary material.

Fessehaye v. Alberto R. Gonzales, United States Attorney General · filed 2005-07-08(c)(1)

In this respect, we note that Ms. Fessehaye’s submission complied with the evidentiary requirements of 8 C.F.R. § 1003.2(c)(1) that she “state new facts” that are “supported by affidavits or other evidentiary material.”

Section 1003.2(c)(2) numerically bars a second motion to reopen deportation proceedings.

Peleo v. Gonzales · filed 2005-06-23(c)(2)

The BIA did not abuse its discretion in denying the Peleos’ second motion to reopen because the motion was numerically barred, see 8 C.F.R. § 1003.2(c)(2), and because the petitioners failed to depart during their voluntary departure period, see 8 U.S.C. § 1229c(d), and did not demonstrate that their failure to do so was due to exceptional circumstances, see INA § 242B(e)(2)(A); 8 U.S.C. § 1252b(e)(2)(A) (repealed).

Section 1003.2 generally requires a motion to reopen within ninety days of the final administrative order, but the time limit does not apply to an asylum or withholding motion based on qualifying material, previously unavailable changed circumstances in the relevant country.

Sheraz v. Gonzales · filed 2005-06-24(c)(2), (c)(3)(ii)

Under 8 C.F.R. § 3.2 (2002), an alien was required to file a motion to reopen within ninety days of the final administrative order closing the proceedings, id. § 3.2(c)(2), except that the time limitation would not apply where the alien seeks “[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,” id. § 3.2(c)(3)(ii).

Section 1003.2(c)(1) requires a motion to reopen seeking an application for relief to include the appropriate application and all supporting documentation.

Jamal v. Atty Gen USA · filed 2005-06-28(c)(1)

... This provision requires that a motion to reopen proceedings for the purpose of submitting an application for relief be accompanied by “the appropriate application for relief and all supporting documentation.” Id. ... Petitioner was not in compliance with the prescribed regulation. As such, it cannot be said that the BIA abused its discretion in denying his motion to reconsider the denial of his procedurally infirm motion to reopen.

The changed-circumstances exception to the 90-day deadline for motions to reopen does not apply when the asserted circumstances existed before the applicant’s prior hearing and could have been presented then.

Zhang v. Gonzales · filed 2005-06-29(c)(3)(ii)

We reject Zhang’s contention that the BIA “fail[ed] to consider application of the temporal exception” to 8 C.F.R. § 3.2(c)(2)’s 90-day time limitations period for filing motions to reopen, found in 8 C.F.R. § 3.2.(c)(3)(ii) (2003). Rather, the BIA correctly found that this exception to the limitations period was “not pertinent here.” The birth of Zhang’s two children prior to his asylum hearing before the IJ was manifestly not a “changed circumstance! ] arising in the country of nationali*359ty or in the country to which deportation has been ordered” evidence of which “was not available and could not have been discovered or presented at the previous hearing,” 8 C.F.R § 3.2(c)(3)(ii) (2003).

Section 1003.2(c)(2)'s 90-day deadline for filing a motion to reopen is not implicitly tolled by a court's stay of removal pending judicial review.

Sam Neang Keo Chan v. Gonzales · filed 2005-07-01(c)(2)

Nothing in Arevalo suggests that the effect of issuing a stay of removal, which is within the court's traditional jurisdiction, had in any way affected the operation of a statutory and regulatory time frame for filing motions to reopen with the agency. Such an assumption would set up a potential conflict with Congress, a reason alone not to make the assumption. The BIA was correct not to read such an assumption into this court's order.

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

Osorio v. U.S. Atty. Gen. · filed 2005-07-08(b)(1)

A motion to reconsider must specify “the errors of fact or law in the prior [BIA] decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). ... In this case, the BIA correctly found that the Petitioners’ motion to reconsider failed to specify any error of law or fact in the BIA’s prior decision, but merely reiterated arguments that were considered and rejected on appeal from the IJ’s order denying their application for asylum, withholding of removal, and CAT relief. Accordingly, the BIA did not abuse its discretion in denying the motion to reconsider.

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

Mezini v. Attorney General · filed 2005-07-12(b)

Under 8 C.F.R. § 1003.2(b), a motion to reconsider must “specify[] the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.”

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days of the Board of Immigration Appeals’ final order of removal.

Ordonez-Velasquez v. Gonzales · filed 2005-07-13(c)(2)

The BIA did not abuse its discretion in denying Ordonez-Velasquez’s motion to reopen as untimely because he did not file it within ninety days of the BIA’s final order of removal. See 8 C.F.R. § 1003.2(c)(2); Azanor v. Ashcroft, 364 F.3d 1013, 1021-22 (9th Cir.2004).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days after the BIA issues its final order of removal.

Huaman v. Gonzales · filed 2005-07-22(c)(2)

The BIA properly determined that Chavez’s motion to reopen was untimely because it was filed more than 90 days after the BIA issued its final order of removal. See 8 C.F.R. § 1003.2(c)(2).

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

Sevilla v. Gonzales · filed 2005-08-15(c)

The BIA did not abuse its discretion in denying petitioners’ motion to reopen, because the record shows that the motion was not filed within 90 days of the final administrative decision, see 8 C.F.R. § 1003.2(c), and petitioners failed to exercise reasonable diligence waiting over a year to move to reopen after this court issued a published decision allegedly affecting the outcome of their proceedings, see Socop-Gonzalez, 272 F.3d at 1184-85.

Section 1003.2(c)(2) limits a party to one motion to reopen, while § 1003.2(c)(3) exempts specified motions from that numerical limit.

Osorio v. U.S. Atty. Gen. · filed 2005-07-14(c)(2), (c)(3)

Except as provided in 8 C.F.R. § 1003.2(c)(3), a party may file only one motion to reopen removal proceedings. ... The BIA also correctly found that Osorio failed to establish either of the regulatory exceptions found in 8 C.F.R. § 1003.2(c)(3) to the numerical limitation, since Osorio did not discuss any of the exceptions in his “Motion to Reconsider and to Remand,” and none of them apply.

Section 1003.2(c)(4) does not expressly authorize affirming an IJ decision without opinion when an original motion to reopen filed directly with the BIA has been consolidated with an existing appeal.

Margarita Uriostegui v. Alberto R. Gonzales, Attorney General of the United States · filed 2005-07-15(c)(4)

The procedure for affirming IJ decisions without opinion is not authorized in so many words for cases in which an original motion to reopen filed directly with the BIA has been consolidated with an existing appeal. See 8 C.F.R. § 1003.2(c)(4).

Section 1003.2(c)(1) requires a party seeking to reopen proceedings to establish that the evidence was previously unavailable or could not have been discovered and presented at the former hearing.

Saldivar-Guerrero v. Gonzales · filed 2005-07-15(c)(1)

The IJ did not abuse her discretion by denying the motion because Saldivar-Guerrero failed to establish that the evidence was previously unavailable or could not have been discovered and presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(c)(1) requires the offered evidence to be material and previously unavailable and undiscoverable or unpresentable at the former hearing, while leaving the Board discretion over whether to reopen.

Germain v. U.S. Attorney General · filed 2005-07-19(c)(1)

Under 8 C.F.R. § 1003.2(c)(1), “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.” ... In explaining 8 C.F.R. § 1003.2(c)(1), we have stated that [t]he provision is framed negatively, by directing the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition.

Section 1003.2(c)(1) permits reopening only on material evidence that was unavailable and could not previously have been presented, and ineffective-assistance claims satisfy that evidentiary requirement.

Orehova v. Ashcroft · filed 2005-07-21(c)(1)

Motions to reopen are permitted only where they present "evidence" that 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). Claims of ineffective assistance of counsel satisfy this requirement. See Saakian, 252 F.3d at 25.

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

Tahiraj v. Atty Gen USA · filed 2005-08-24(c)(1)

“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered ... was not available and could not have been discovered or presented at the former hearing. ... Because Tahiraj has not demonstrated that his wife’s follow-up affidavit was previously unavailable, we conclude that the BIA properly denied Tahiraj’s motion.”

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

Huang v. U.S. Attorney General · filed 2005-08-30(c)(1)

Huang submitted an affidavit with his motion to reopen, stating that he had not understood what his attorney told him and that he thought he was still applying for asylum. However, this did not constitute new evidence, because the evidence was clearly available earlier when Huang made essentially the same arguments in his appeal. See INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.2(c)(1).

Section 1003.2 gives the Board discretion to deny reopening, requires motions to reconsider within 30 days, and generally requires motions to reopen within 90 days of the final order.

Sharma v. Attorney General of the United States · filed 2005-07-20(a), (b)(2), (c)(2)

The decision to deny a motion to reopen is within the Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). Under the regulations, 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). A motion to reconsider must be filed within 30 days of the BIA’s decision. 8 C.F.R. § 1003.2(b)(2). Unless certain exceptions apply, such as changed country conditions, a motion to reopen before the Board must be filed within 90 days of the final order. 8 C.F.R. § 1003.2(c)(2). Whether Sharma’s motion was construed as a motion to reconsider or a motion to reopen, it was filed over two years late.

Section 1003.2(b) requires a motion to reconsider to specify the factual or legal errors in the prior Board decision and support them with pertinent authority, while subsection (c) permits reopening based on material, previously unavailable facts that could not have been presented at the former hearing.

Onohi v. Atty Gen USA · filed 2005-08-02(b) and (c)

Second, a motion to reconsider, governed by 8 C.F.R. § 1003.2(b), requires an applicant to “specify[ ] the errors of fact or law in the prior Board decision” and to support such errors “by pertinent authority.” A motion to reopen, governed by 8 C.F.R. § 1003.2(c), allows an applicant to provide new facts which would be proven if a hearing were granted. The BIA can only grant such a motion if it appears “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). Onohi has failed to identify actual errors of fact or law in the prior BIA decision, nor has he presented any new facts to be proven at a hearing. Thus, we find that the BIA did not abuse its discretion in denying Onohi’s Motion to Reopen and Reconsider.

Section 1003.2(c)(2) generally permits only one motion to reopen and requires it to be filed within 90 days after the final administrative decision, or by September 30, 1996, whichever is later.

Zheng v. United States Department of Justice, Attorney General Gonzales · filed 2005-07-21(c)(2)

“[A] party may file only one motion to reopen deportation or exclusion proceedings ... and that motion 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, or on or before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2). Zheng’s motion was untimely under this general rule.

Section 1003.2(c)(2) requires a motion to reopen to be filed within ninety days of the Board of Immigration Appeals' decision, unless an exception such as changed circumstances in the country of nationality under subsection (c)(3)(ii) applies.

Hussain v. Gonzales · filed 2005-08-04(c)(2), (c)(3)(ii)

The BIA properly denied Hussain’s motion to reopen as untimely because Hussain did not file his motion until more than four years after the BIA’s decision, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed within ninety days of BIA’s decision), and failed to demonstrate changed circumstances arising in the country of nationality to qualify for the regulatory exception to the time and numerical limitations on motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii). Accordingly, the BIA’s denial of Hussain’s motion to reopen was not arbitrary, irrational, or contrary to law.

Section 1003.2(c)(2) requires a motion to reopen removal proceedings to be filed within 90 days after the final administrative decision, subject to the regulation's exceptions.

Nevarez v. Gonzales · filed 2005-08-04(c)(2)

The BIA did not abuse its discretion when it denied as untimely Nevarez’s motion to reopen. The BIA affirmed the IJ’s order of removal on November 10, 2003, and did not receive Nevarez’s motion to reopen until more than ninety days later on April 30, 2004. See 8 C.F.R. § 1003.2(c)(2). Accordingly, the BIA’s denial of Nevarez’ motion to reopen was not arbitrary, irrational or contrary to law.

Section 1003.2(c)(1) permits reopening only when the motion presents material evidence that was unavailable and could not have been discovered or presented at the former hearing; claims of ineffective assistance of counsel satisfy this evidentiary requirement.

Orehhova v. Gonzales · filed 2005-07-21(c)(1)

Motions to reopen are permitted only where they present “evidence” that 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). Claims of ineffective assistance of counsel satisfy this requirement.

Section 1003.2(b)(2) bars a second motion to reconsider, and treating an initial filing as a motion to reopen does not create a second opportunity to file essentially the same motion.

Jing Ding Jiang v. United States Attorney General · filed 2005-07-21(b)(2)

The BIA denied Jiang’s second motion on the grounds that it was a second motion to reconsider, which is impermissible under 8 C.F.R. § 1003.2(b)(2). Denial of Jiang’s second motion on the ground that he had already filed a motion to reconsider is supported by the record. Jiang’s first motion was filed and titled as a “Motion to Reconsider”; had it been a motion to reconsider, it would have automatically been rejected (as the BIA observed). That the BIA gave Jiang the benefit of the doubt by considering his first motion also as a motion to reopen (rather than simply denying it peremptorily as a motion to reconsider) does not afford a second opportunity to file essentially the same motion, in contravention of BIA regulations.

Section 1003.2(b)(2) bars filing a motion to reconsider an order denying a motion to reconsider.

Akinwande v. Gonzales · filed 2005-08-17(b)(2)

Because Akinwande may not file a motion to reconsider an order denying a motion to reconsider, the Board did not abuse its discretion denying the motion. See 8 C.F.R. § 1003.2(b)(2) (2005).

Section 1003.2(c)(1) permits the BIA to reopen a case when the offered evidence is material and was unavailable and could not have been discovered or presented at the former hearing; insufficient evidence of persecution in the applicant's particular situation supports denying reopening.

Liu v. Board of Immigration Appeals · filed 2005-08-09(c)(1)

The BIA has the discretion to grant a motion to reopen if “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) (2005); ... Although Liu presented State Department reports that constituted some evidence that China sometimes applies the same penalties to its nationals who have had children abroad as it does to residents, Liu’s failure to adduce evidence that penalties amounting to persecution would apply in her particular situation precludes us from concluding that the BIA abused its discretion in declining to reopen her case.

A motion to reopen may not be granted unless the offered evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Avellaneda v. U.S. Attorney General · filed 2005-08-29(c)(1)

The regulations governing motions to reopen state, among other things, that the motion 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)(1).

Section 1003.2(c)(3)(ii) permits an asylum applicant to move to reopen based on materially changed country conditions supported by evidence that was previously unavailable, while requiring prima facie eligibility for asylum.

Tatiana Poradisova, Pavel Poradisov, and Gennadi Poradisov v. Alberto Gonzales, 1 · filed 2005-08-16(c)(3)(ii)

An asylum applicant may, at any time, move to reopen his case “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii) (2003). To prevail on the motion, the movant must also establish prima facie eligibility for asylum, ie., “a realistic chance” that he will be able to establish eligibility. ... Under the legal principals set forth in II.B supra, the material submitted by the Poradisovs in 2003 was sufficient to meet the Poradisovs’ burden on their motion.

Section 1003.2 gives the BIA discretion to deny a motion to reopen, generally requires filing within 90 days, and excuses that deadline for an asylum-based motion supported by material, previously unavailable changed circumstances arising in the country of nationality or removal.

Xi Kang Zou v. U.S. Attorney General · filed 2005-08-18(a), (c)(3)(ii), and (c)(3)

Pursuant to 8 C.F.R. § 1003.2(a), “[t]he 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. 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). A motion to reopen must be filed with the BIA no later than 90 days after the date on which the final administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2). However, the time limitations set forth in paragraph (c)(2) do not apply to a motion to reopen proceedings, inter alia, to 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.” 8 C.F.R. § 1003.2(c)(3)(ii). ... We conclude that the BIA did not abuse its discretion by denying Zou’s motion to reopen. First, as the BIA correctly found, Zou had 90 days from the BIA’s August 17, 2004, order affirming the IJ’s order of removal in which to file his motion to reopen. Thus, Zou had until November 15, 2004, to timely file his motion. His motion, however, was not filed until November 16, 2004, and, therefore, was untimely. 8 C.F.R. § 1003.2(c)(3). Furthermore, Zou failed to meet the one enumerated exception to the time limitations that he arguably could have qualified for because he did not demonstrate any changed circumstances arising out of his country of nationality and to which deportation was ordered, China. ... Accordingly, the BIA did not abuse its discretion by correctly applying the 90-day filing requirement and time limitation to deny Zou’s motion.

Section 1003.2(a) leaves the decision whether to grant or deny a motion to reconsider to the BIA's discretion, while § 1003.2(b)(1) requires the motion to identify an error of law or fact in the prior decision and cite pertinent authority.

Garzon v. U.S. Attorney General · filed 2005-08-19(a), (b)(1)

We review the BIA’s denial of a motion to reconsider for abuse of discretion. Assa’ad v. U.S. Attorney Gen., 332 F.3d 1321, 1341 (11th Cir. 2003); see also 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reconsider is within the discretion of the [BIA] . . . .”). A motion to reconsider must set forth either an error of law or an error of fact in the prior BIA decision, and must be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1). Garzon’s motion to reconsider failed to set forth any error in the BIA’s previous order. Instead, it simply restated her argument that her mother had been granted asylum based on the same facts she alleged, an argument that both the BIA and the IJ had previously considered and rejected. Therefore, the BIA did not abuse its discretion by denying Garzon’s motion to reconsider.

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

Beqiri v. U.S. Attorney General · filed 2005-08-26(b)(1)

A motion to reconsider “shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.” INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1).

Section 1003.2(b)(1) requires a motion for reconsideration to specify the factual or legal errors in the prior BIA decision; repeating previously rejected arguments is insufficient.

Cortes-Ramirez v. U.S. Atty. Gen. · filed 2005-08-23(b)(1)

Under the regulations, a motion for reconsideration must specify “the errors of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1). ... Because the petitioners failed to specify the errors of fact or law in the prior BIA decision and simply repeated their prior arguments that the BIA had considered and rejected, the BIA did not abuse its discretion in denying the petitioners’ motion for reconsideration. 8 C.F.R. § 1003.2(b)(1); see Ahmed, 388 F.3d at 249.

Section 1003.2(c)(1) requires a motion to reopen to identify new, material evidence that was previously unavailable, while § 1003.2(a) leaves reopening to the BIA's discretion, including denial despite a prima facie case.

Maryam v. Gonzales · filed 2005-08-31(c)(1), (a)

A motion to reopen "shall state the new facts that will be proven at a hearing" and "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). ... "The decision to grant or deny a motion to reopen . . . is within the discretion of the [BIA]," and the BIA "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).

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

Chang v. United States Immigration & Naturalization Service · filed 2005-08-31(c)(2)

Former 8 C.F.R. § 3.2(c)(2), now codified at 8 C.F.R. § 1003.2(c)(2), provides that, subject to limited exceptions, a motion to reopen removal proceedings 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.” Chang’s motion was filed over four years after the final administrative decision in this case.

Section 1003.2(c)(2) permits only one motion to reopen deportation or exclusion proceedings and requires it to be filed within 90 days after the final administrative decision.

Chen v. Gonzales · filed 2005-09-02(c)(2)

“[A] party may file only one motion to reopen deportation or exclusion proceedings ... and that motion 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)(2). The BIA order dismissing Chen’s appeal from the IJ’s decision issued on March 29, 2002. Chen moved to reopen proceedings on November 25, 2002 — which is clearly more than 90 days after the BIA’s final order.

Section 1003.2(c)(2) bars a motion to reopen filed more than 90 days after the final administrative decision.

De Oliveira v. Gonzales · filed 2005-10-04(c)(2)

But were we to construe De Oliveira’s filing as a motion to reopen solely to adjust his status, that motion would be barred as untimely under 8 C.F.R. § 1003.2(c)(2) (providing that a motion to reopen proceedings must be filed no later than 90 days after the final administrative decision). Given this fact, we cannot say the BIA abused its discretion.

Section 1003.2(a) allows the Board to deny reopening even after a prima facie showing, while § 1003.2(c)(1) requires material new evidence that could not have been discovered or presented at the former hearing.

Bhasin v. Alberto R. Gonzales, Attorney General · filed 2005-09-01(a), (c)(1)

The Board has the 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). ... 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.” 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1) (2003). The evidence presented must be “material,” and the applicant must show that the evidence “could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). ... In any case, both the statute and the regulation indicate that the evidence must not have been available to be presented “at the former hearing.” 8 U.S.C. § 1229a(e)(6)(B); 8 C.F.R. § 1003.2(c)(1). The proffered testimony concerns events that happened after the “former hearing” before the IJ. The government’s argument that the information was previously available because it became available during 'the pendency of the appeal to the Board does not comport with the statute and regulation.

Section 1003.2(c)(1) bars reopening unless the offered evidence is material and was unavailable and could not have been discovered or presented at the former hearing, while leaving the BIA discretion over whether to reopen.

Zheng v. U.S. Attorney General · filed 2005-09-29(c)(1)

Rephrasing this second ground, the regulations provide 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). Moreover, in explaining § 1003.2(c)(1), we have stated as follows: ... [t]he provision is framed negatively, by directing the Board not to reopen unless certain showings are made. It does not affirmatively require the [BIA] to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the [BIA] with discretion in determining under what circumstances proceedings should be reopened.

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

Kounin v. Bureau of Citizenship & Immigration Services · filed 2005-10-11(c)(1)

The BIA will not grant a motion to reopen “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.” Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (citing 8 C.F.R. § 1003.2(c)(1) (formerly 8 C.F.R. § 3.2(c)(1))). In this case, the evidence provided with Kounin’s motion in the BIA indicated that Kounin’s wife had fled from Bulgaria and relocated in Canada in November 2001, while Kounin’s appeal to the BIA was pending. However, as the BIA properly concluded, Kounin failed to demonstrate why he had not presented the evidence of her relocation before April 2003, when he filed his motion to reopen. Thus, the BIA did not abuse its discretion in denying the motion.

Section 1003.2 gives the BIA authority to reopen the record on remand to consider new evidence of changed country conditions.

Chhokar v. Gonzales · filed 2005-09-01

On remand, the BIA has the authority to reopen the record on the issue of changed country conditions to allow the presentation of new evidence of the current conditions. 8 C.F.R. § 1003.2; see also Ventura, 537 U.S. at 18, 123 S.Ct. 353.

Section 1003.2(b)(2) requires a motion to reconsider to identify errors of law or fact in the challenged order.

Benitez v. Gonzales · filed 2005-09-02(b)(2)

The IJ acted within his discretion in denying Benitez’s motion to reconsider because Benitez did not identify any errors of law or fact in the IJ’s order denying reopening, as required by 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(a) permits the BIA to reopen or reconsider a case on its own motion only if it previously rendered a decision in that matter.

Roberts v. Gonzales · filed 2005-09-06(a)

Federal regulations state 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. This provision is inapplicable here because the BIA had never rendered a decision in the petitioner's case (he did not appeal from the IJ's original order). Its first and only involvement was when it denied the petitioner's motion to reopen. The plain meaning of 8 C.F.R. § 1003.2(a) is to the effect that the BIA cannot invoke its sua sponte authority in a matter if it had not rendered any decisions in the matter prior to the time when it rejected the petitioner's appeal from a denial of a motion to reopen.

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

Zou v. U.S. Department of Justice · filed 2005-09-09(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 CFR § 1003.2(b)(1). Zou’s motion, the BIA rightly concluded, failed to establish any errors of fact or law in the prior BIA decision.

Section 1003.2(b)(1) requires a motion to reconsider to specify the alleged errors and supports denial when the motion raises no previously overlooked issue.

Bravo v. Gonzales · filed 2005-10-03(b)(1)

The petitioners’ motion to reconsider did not specify the errors now alleged to have been made by the Immigration Judge (“U”). It made no mention of their children’s language skills, or the IJ’s alleged failure to act as a neutral factfinder and failure to elicit testimony. Instead, the motion focused on Valencia Bravo’s ability to support his family. The BIA therefore did not abuse its discretion, or commit a due process violation, by denying reconsideration on the basis that the petitioners in their motion raised no previously-overlooked issue. See 8 C.F.R. § 1003.2(b)(1); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002).

Section 1003.2(c)(1) requires denial of reopening when the offered evidence was available and could have been discovered or presented at the former hearing.

Attoh-Mensah v. Atty Gen USA · filed 2005-09-14(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.” ... “We find the second reason convincing. If the IJ had actually prevented Attoh-Mensah’s family members from testifying, Attoh-Mensah and his lawyer would have known this as soon as it happened. While it is certainly possible that Attoh-Mensah and his lawyer were not aware that the IJ had switched off the recording device at various points during the proceeding, they could have discovered this by looking at the transcript, which was available at the time of the initial appeal. In short, Attoh-Mensah’s motion to reopen contained evidence that was available and could have been discovered or presented at the former hearing. 8 C.F.R. § 1003.2(c)(1). The BIA’s denial adhered to the proper legal standard, and must be upheld.

Section 1003.2(c)(1) requires a motion to reopen to be supported by evidence establishing a prima facie case for the requested relief; a bare assertion about a possible future change in immigration law is insufficient.

Valdez v. Gonzales · filed 2005-09-15(c)(1)

The BIA did not abuse its discretion by denying Cruz Valdez’s motion to reopen because his bare assertion that a potential change in immigration law would allow him to stay in the United States, absent any evidence that such a law is currently in place and, if it were, that he would meet its requirements, failed to establish a prima facie case for cancellation of removal. See 8 C.F.R. § 1003.2(c)(1); Ordonez, 345 F.3d at 785.

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

Tan Bin Yu v. Gonzales · filed 2005-09-19(c)(1)

A motion to reopen must present the new facts sought to be presented in the reopened proceedings and must be supported by affidavits or other evidentiary material.

Section 1003.2(c)(2) generally permits only one motion to reopen, subject to specified exceptions.

Rincon v. Gonzales · filed 2005-09-16(c)(2)

The BIA properly denied Petitioners’ motion to reopen as numerically barred because Petitioners had previously filed a motion to reopen, and they failed to demonstrate eligibility for any exception to the one motion rule. See 8 C.F.R. § 1003.2(c)(2)-(3).

Section 1003.2(c) requires a motion to reopen to state and support new facts, generally be filed within 90 days, and, under the changed-circumstances exception, present material evidence that was unavailable and could not previously have been presented.

Li v. Gonzales · filed 2005-09-19(c)(1), (c)(2), (c)(3)(ii), (c)(3)

“Li failed to satisfy the 90-day limit. The final order in Li’s BIA proceeding was issued on November 18, 2002, and his motion to reopen was not received by the BIA until May 13, 2003. Li’s motion to reopen, which referenced a letter from the United States Secretary of State to Senator Leahy but did not attach any affidavits or evidentiary materials, also failed to establish “changed circumstances,” as required by 8 C.F.R. § 1003.2(c)(3). Li himself acknowledged that the letter from the Secretary of State indicated that China’s family planning regime remained coercive, i.e. that the conditions in China had not changed. In light of Li’s failure to present any material evidence that could not have been presented at the previous hearing, we conclude that the BIA’s dismissal of Li’s motion to reopen was not an abuse of discretion.”

Section 1003.2 generally requires a motion to reopen within 90 days, but permits reopening beyond that period for asylum or withholding claims based on changed country conditions and requires material, previously unavailable evidence.

Din v. Board of Immigration Appeals · filed 2005-10-11(c)(2), (c)(3)(ii), and (c)(1)

An applicant for asylum who seeks to reopen his immigration proceedings must file a motion to reopen “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)(2). The ninety-day limit does not apply where, inter alia, the applicant seeks to reopen his proceedings in order to apply or reapply for asylum and withholding “based on changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Further, 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); see also Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. June 22, 2005).

Section 1003.2(a) provides the abuse-of-discretion standard for reviewing denial of reconsideration, and subsection (b)(1) requires a reconsideration motion to identify specific factual or legal errors and be supported by pertinent authority.

Teklewold v. Gonzales · filed 2005-09-20(a), (b)(1)

We review the denial of a motion to reconsider for abuse of discretion. See 8 C.F.R. § 1003.2(a) (2005). A motion to reconsider asserts the Board made an error in its earlier decision. The immigration regulations provide that a motion to reconsider must “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) (2005); see also Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90-91 (2d Cir. 2001) (discussing requirements for motion to reconsider). The burden is on the movant to establish that reconsideration is warranted.

Section 1003.2(c)(1) requires an alien seeking to reopen proceedings for asylum based on changed circumstances to provide sufficient facts and supporting documentary evidence establishing prima facie eligibility for the relief sought.

Ghasemimehr v. Alberto Gonzales, Attorney General, of the United States of America · filed 2005-09-22(c)(1)

An alien can satisfy his burden to show changed circumstances by providing sufficient facts and supporting documentary evidence, through affidavits or other evidentiary material, establishing prima facie eligibility for the relief sought. ... Ghasemimehr’s motion lacked any supporting documentary evidence and did not include any affidavits or other evi-dentiary material showing he is eligible for asylum.

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

Yu v. Ashcroft · filed 2005-09-22(c)(1)

Yu failed to offer any new evidence to refute the IJ’s finding that she was not credible. 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.”); Kaur v. Board of Immigration Appeals, 413 F.3d 232, 234 (2d Cir.2005) (holding that evidence submitted for a motion to reopen must be material and state new facts that rebut the underlying finding).

Section 1003.2(c)(1) permits reopening within 90 days for material new evidence that was unavailable and could not have been presented at the former hearing; a new pardon is immaterial when it cannot change the alien's inadmissibility.

Balogun v. U.S. Attorney General · filed 2005-09-26(c)(1)

The BIA is permitted to reopen removal proceedings if the alien, within ninety days of the final order of removal, presents 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. § 1003.2(c)(1). Balogun’s motion to reopen the removal proceedings was timely filed and he did present new evidence which was not available at his former hearing. The question is whether this new evidence is material to the BIA’s final order of removal. ... Thus, even assuming that Balogun’s pardon meets the requirements of §1227(a)(2)(A)(v), he would still be unable to enter the United States; he would still be removable.

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.

Sandoval v. U.S. Atty. Gen. · filed 2005-10-12(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.” 8 C.F.R. § 1003.2(c)(1). Petitioner’s motion did not state any new facts that would be established at a new hearing and, moreover, was not supported by any affidavits or evidentiary material.

Section 1003.2(b)(1) requires a motion for reconsideration to identify a cognizable legal or factual error, while § 1003.2(c)(2) numerically limits motions to reopen.

Pineda v. Gonzales · filed 2005-09-23(b)(1), (c)(2)

The BIA properly denied Petitioners’ October 10, 2003 motion because, construed as a motion for reconsideration, it failed to raise a cognizable error of law or fact in the BIA’s denial of their earlier motion to reopen. See 8 C.F.R. § 1003.2(b)(1); ... The BIA also properly concluded that, construed as a motion to reopen, the motion was numerically barred. See 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(1) requires a motion to reopen to be supported by material evidence that was previously unavailable and could not have been discovered or presented at the former hearing; failure to offer such evidence is a proper ground for denial.

Singh v. Gonzales · filed 2005-10-03(c)(1)

The regulations, in turn, provide 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.” 8 C.F.R. § 1003.2(c)(1) (2005); Kaur, 413 F.3d at 234. Failure to offer such evidence is, therefore, a proper ground on which the BIA may deny a motion to reopen, as is the movant’s failure *28to establish a prima facie case for the underlying substantive rehef sought.

Sections 1003.2(b)(1) and (c)(1) require a reconsideration motion to identify specific errors of fact or law and a reopening motion to present material new evidence, including qualifying circumstances arising after the hearing.

Rios-Cano v. U.S. Atty. General · filed 2005-10-04(b)(1), (c)(1)

Under the regulations, a motion for reconsideration must specify “the errors of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1). ... Petitioners do not present any specific legal or factual errors committed by the IJ or support their allegations with pertinent authority. See 8 C.F.R. § 1003.2(b)(1). Therefore, the BIA did not abuse its discretion by denying the motion for reconsideration. ... Petitioners challenge the denial of the motion to reopen on the ground that “the relief is sought on the basis of circumstances that have arisen subsequent to the hearing,” namely, the alleged disappearance of Rios-Cano’s husband. 8 C.F.R. § 1003.2(c)(1). Petitioners’ motion for reconsideration included evidence that Rios-Cano’s husband had disappeared, but they did not establish that the new evidence was related to their claims for asylum and withholding of removal. Thus, the evidence presented by petitioners was not “material” to their asylum and withholding of removal claims, and the BIA’s decision was not “arbitrary, irrational or contrary to law.” 8 C.F.R. § 1003.2(c)(1); Ontiveros-Lopez, 213 F.3d at 1124. Therefore, the BIA did not abuse its discretion by denying the petitioners’ motion to reopen.

Section 1003.2(c)(2) limits asylum-seekers’ motions to reopen by time and number, while § 1003.2(a) allows the BIA to reopen removal proceedings sua sponte.

Yang v. Board of Immigration Appeals · filed 2005-10-04(c)(2), (a)

While 8 C.F.R. § 1003.2(c)(2) does place time and number limits on motions to reopen brought by asylum-seekers, the regulations also provide that the BIA may reopen removal proceedings sua sponte. 8 C.F.R. § 1003.2(a).

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.

Singh v. Attorney General of the United States · filed 2005-10-13(a)

Under the regulations, the BIA “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).

Section 1003.2(b)(1) requires a motion to reconsider to specify the errors of fact or law in the agency's prior decision.

Parra v. Gonzales · filed 2005-10-18(b)(1)

A motion to reconsider must specify the errors of fact or law in the agency’s prior decision.

Section 1003.2(b)(1) requires a motion to reconsider to specify errors of law or fact in the prior decision rather than merely repeat earlier arguments.

Tesfagaber v. Gonzales · filed 2005-10-18(b)(1)

The BIA did not abuse its discretion by denying Tesfagaber’s motion to reconsider because her motion merely restated arguments already presented to the BIA and failed to identify any error of law or fact in the BIA’s previous decision. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.2003).

Section 1003.2(b)(1) requires a motion to reconsider to identify the factual or legal errors in the prior Board decision and to be supported by pertinent authority.

Wu v. Gonzales · filed 2005-11-03(b)(1)

The immigration regulations provide that a motion to reconsider must “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) (2005); see also Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90-91 (2d Cir. 2001) (discussing requirements for motion to reconsider). ... Wu’s motion failed to present any argument regarding the impropriety of the Board’s September 27, 2004 ruling. 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.”). Thus, the motion was properly denied.

Section 1003.2(c)(1) requires a motion to reopen to include supporting affidavits or other evidentiary material supporting its allegations.

Chen v. Board of Immigration Appeals · filed 2005-10-18(c)(1)

Chen’s motion contained no other supporting affidavits or evidentiary material to buttress his allegations, as required by 8 C.F.R. § 1003.2©)(1), and was thus wholly deficient and properly denied.

Section 1003.2(c)(2) requires a motion to reopen within 90 days, while § 1003.2(c)(3)(ii) provides an exception for materially changed circumstances in the country of removal.

Rahro v. Gonzales · filed 2005-10-19(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion by denying Rahro’s motion to reopen as untimely. Rahro. filed his motion- months after the 90-day filing deadline. See 8 C.F.R. § 1003.2(c)(2) (stating that a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered”). The motion did not, as Rahro contends, fall *728within the exception to the deadline found at 8 C.F.R. § 1003.2(c)(3)(ii), because Rahro did not demonstrate changed circumstances in Iran that were material to his asylum claim.

Section 1003.2(e)(3)(ii) requires an alien seeking to reopen proceedings based on changed country circumstances to provide evidence of those changed circumstances.

Tubig v. Gonzales · filed 2005-11-16(e)(3)(ii)

The BIA did not abuse its discretion in denying Tubig’s motion to reopen because she failed to provide any evidence that she would be at risk of torture if she were returned to the Philippines. 8 C.F.R. § 1003.2(e)(3)(ii) (providing that an alien must provide evidence of “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered”); see also Cano-Merida, 311 F.3d at 966 (9th Cir.2002).

Section 1003.2(c)(2) generally bars a second motion to reopen and requires a motion to reopen to be filed within the applicable deadline, subject to regulatory exceptions.

Singh v. Gonzales · filed 2005-10-21(c)(2)

The BIA did not abuse its discretion in denying Singh’s second motion to reopen because it was numerically barred, see 8 C.F.R. § 1003.2(c)(2), and filed six years after the applicable deadline, see id. Accordingly, the agency’s refusal to reopen Singh’s deportation proceedings was not “arbitrary, irrational or contrary to law.”

Section 1003.2(c)(2) requires a motion to reopen to be filed within ninety days after entry of the order of removal.

Chen v. Gonzales · filed 2005-10-24(c)(2)

A motion to reopen must be filed within ninety (90) days after entry of the order of removal. 8 C.F.R. § 1003.2(c)(2). The BIA dismissed Chen’s appeal on August 27, 2003. Approximately five months later, on January 30, 2004, she filed her motion to reopen alleging ineffective assistance of counsel. Accordingly, the motion was untimely and correctly denied by the BIA.

Section 1003.2(c)(1) allows the BIA to reopen a closed proceeding when the petitioner submits affidavits and information relating to changed conditions since the BIA originally considered the claim.

Zeito v. Gonzales · filed 2005-10-25(c)(1)

Zeito’s proper recourse, however, is to petition the BIA to reopen his case under 8 C.F.R. § 1003.2(c). That section provides that the BIA may reopen a closed proceeding if the petitioner includes with the petition affidavits and the information to be considered at the reopened proceeding relating to the change in conditions since the BIA originally considered the claim. See 8 C.F.R. § 1003.2(c)(1). Additionally, the time limitations set forth in the section do not apply to petitions to reopen due to changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) requires a motion to reopen removal proceedings to be filed within 90 days after the Board of Immigration Appeals issues its final order of removal.

De Morales v. Gonzales · filed 2005-10-25(c)(2)

The BIA did not abuse its discretion when it denied the petitioner’s motion to reopen because it was filed more than 90 days after the BIA issued its final order of removal. See 8 C.F.R. § 1003.2(c)(2).

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

Liu v. Attorney General of the United States · filed 2005-11-01(c)(2)

It is undisputed that under 8 C.F.R. § 1003.23(b)(1) (2005) and 8 C.F.R. § 1003.2(c)(2) (2005) Liu had 90 days from August 19, 2003, to move to reopen.

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

Abdi v. U. S. Attorney General · filed 2005-11-15(c)(2)

A motion to reopen immigration proceedings “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)(2). ... The motion to reopen was clearly untimely under the BIA’s rules because Petitioner filed it long after the 90-day deadline. 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(2) imposes a 90-day deadline for filing a motion to reopen after the BIA’s final order of removal.

Maghradze v. Gonzales · filed 2005-11-16(c)(2)

The BIA did not abuse its discretion in denying Petitioners’ motions to reopen as untimely because they did not file the motions within ninety days of the BIA’s final order of removal. See 8 C.F.R. § 1003.2(c)(2); Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir.2002) (noting that a motion to reopen to apply for adjustment of status must be filed no later than ninety days after the issuance of a final decision by the BIA).

Section 1003.2(c)(3)(ii) exempts a motion to reopen based on changed circumstances from the ordinary time and numerical limitations.

Rahman v. Gonzales · filed 2005-10-25(c)(3)(ii)

The BIA erred in denying the Petitioners’ motion to reopen as untimely because a motion to reopen based on changed circumstances is exempt from time and numerical limitations. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (citing 8 C.F.R. § 1003.2(c)(3)(ii)).

Section 1003.2(b)(1) requires a motion to reconsider to specify errors of fact or law and cite pertinent authority, while § 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days after the final removal decision.

Chen v. Atty Gen USA · filed 2005-10-28(b)(1) (c)(2)

A motion to the BIA 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). ... Under the applicable regulation (subject to exceptions not relevant here), a motion to reopen “must be filed no later than 90 days after the date” the final removal decision was rendered. 8 C.F.R. § 1003.2(c)(2). Plainly, Chen’s motion to reopen was untimely – the BIA issued its order of removal in March 2004 and Chen filed his motion to reopen in October 2004.

Section 1003.2(b)(1) requires a motion to reconsider to specify errors of fact or law in the prior Board decision and provide pertinent authority, while section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days after the final removal decision.

Chen v. Attorney General of the United States · filed 2005-10-28(b)(1), (c)(2)

A motion to the BIA 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). Chen fails to specify, either in his motion for reconsideration or in his brief on appeal, any such errors. We have also independently searched the record for any error by the BIA in denying the motion to reopen as untimely such that reconsideration was warranted. Under the applicable regulation (subject to exceptions not relevant here), a motion to reopen “must be filed no later than 90 days after the date” the final removal decision was rendered. 8 C.F.R. § 1003.2(c)(2). Plainly, Chen’s motion to reopen was untimely — the BIA issued its order of removal in March 2004 and Chen filed his motion to reopen in October 2004.

Section 1003.2 gives the Board discretion to deny reopening or reconsideration and requires material, previously unavailable evidence for a motion to reopen; failure to establish a prima facie case is an independent basis for denial.

Shenoda v. U.S. Attorney General · filed 2005-11-22(a), (c)(1)

Pursuant to 8 C.F.R. § 1003.2(a), “[t]he 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. 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). ... We have held that, “[a]t a minimum, there are at least three independent grounds upon which the Board may deny a motion to reopen: 1) failure to establish a prima facie case; 2) failure to introduce evidence that was material and previously unavailable; and 3) a determination that despite the alien's statutory eligibility for relief, he or she is not entitled to a favorable exercise of discretion.” Najjar, 257 F.3d at 1302. ... In the instant case, the BIA did not abuse its discretion by denying Shenoda’s motion to reopen because the documentary evidence that Shenoda presented in support of his motion did not establish a change in country conditions sufficient to demonstrate a prima facie case of eligibility for withholding of removal.

The changed-country-conditions exception to the 90-day deadline for motions to reopen does not apply when new information merely reinforces the original asylum claim.

Ye v. Atty Gen USA · filed 2005-11-02(c)(3)(ii)

The BIA does not abuse its discretion when it holds that updated information that merely reinforces the original asylum claim does not satisfy the exception to the 90-day rule for changed country conditions under 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires a motion to reopen to be supported by evidence that was previously unavailable.

Mendez v. Gonzales · filed 2005-11-03(c)(1)

The BIA did not abuse its discretion in determining that Herrera Mendez’s motion to reopen was not supported by previously unavailable evidence. 8 CFR § 1003.2(c)(1); see INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992).

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

Yu v. Board of Immigration Appeals · filed 2005-11-04(c)(1)

Moreover, it is highly unlikely that the evidence sought to be admitted “was not available *103and could not have been discovered or presented at the former hearing.” See 8 C.F.R. § 1003.2(c)(1) (2005); Kaur, 413 F.3d at 234.

Section 1003.2(c)(1) requires a movant seeking to reopen proceedings to show that the offered evidence is material and was unavailable and could not have been discovered or presented at the former hearing.

Aboye v. Gonzales · filed 2005-11-21(c)(1)

A motion to reopen will not be granted unless the alien shows 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 requires a motion to reopen to be filed within 90 days, subject to an exception for asylum or withholding claims based on changed country conditions, and requires the supporting evidence to be material and previously unavailable; the court applied those requirements to deny reopening.

Yang v. Gonzales · filed 2005-11-10(c)(2), (c)(3)(h), and (c)(1)

An applicant for asylum who seeks to reopen his immigration proceedings must file a motion to reopen “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)(2). The ninety-day limit does not apply where, inter alia, the applicant seeks to reopen his proceedings in order to apply or reapply for asylum and withholding “based on changed circumstances in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(h). Further, 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); see also Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005). ... Because the BIA rendered its final administrative decision in Yang’s ease on September 25, 2002, Yang was required to file her motion to *235reopen on or before December 24, 2002. Yang did not file her motion to reopen until October 2003, well beyond the required time period. Further, Yang provided no evidence of changed country circumstances, but merely a change in her own circumstances. ... Accordingly, the BIA properly denied Yang’s motion to reopen, and thus Yang’s motion to stay the order of removal is moot.

Section 1003.2 generally limits an alien to one motion to reopen filed within 90 days, but allows an exception for changed country conditions and requires material evidence that was previously unavailable and could not have been presented earlier.

Wang v. Gonzales · filed 2005-11-22(c)(2), (c)(3)(ii), and (c)(1)

An alien is limited to one motion to reopen exclusion or deportation proceedings. See 8 U.S.C. § 1229a (c)(7)(A) (2005); 8 C.F.R. § 1003.2(c)(2) (2005). This motion must be filed within ninety days of the final administrative decision. 8 U.S.C. § 1229a (c)(7)(C) (2005); -8 C.F.R. § 1003.2(c)(2) (2005). A motion that does not comply with these time and numerical limitations can only be brought where the alien can establish “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a (c)(7)(C)(ii) (2005); 8 C.F.R. § 1003.2(c)(3)(ii) (2005). Such a motion to reopen shall not be granted unless it appears that the evidence offered “is material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1003.2(c)(1). ... Because the evidence was available and could have been presented in support of the prior motion to reopen, the BIA did not abuse its discretion in denying the second motion to reopen.

Section 1003.2(c)(1) requires a motion to reopen to state the new facts to be proven, include affidavits or other evidence, and, when seeking relief, include the proper application and supporting documentation.

Yuen Yi Ma v. Gonzales · filed 2005-11-14(c)(1)

To the extent that Ma challenges the BIA’s conclusion that “she has not alleged any new facts which might support reopening to file an application for relief,” we deny this aspect of the petition for review. Ma’s submissions to the BIA did not comply with the pertinent regulatory requirements. 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 for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.”).

Section 1003.2(c)(1) requires a motion to reopen to include the appropriate application for relief and all supporting documentation.

Lin v. Board of Immigration Appeals · filed 2005-11-15(c)(1)

According to 8 C.F.R. § 1003.2, the BIA has discretion to grant or deny motions to reopen or reconsider, subject to the restrictions contained therein. One such restriction is that a motion to reopen “must be accompanied by the appropriate application for relief and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1) (2005). As this is a purely procedural rule that does not allow for discretionary interpretation, the BIA’s straightforward application of it correctly resulted in denial of the motion.

Section 1003.2(a) gives the BIA discretion over motions to reopen or reconsider, while subsection (b)(1) requires a reconsideration motion to identify errors of fact or law in the prior BIA decision and support them with pertinent authority.

Contreras v. U.S. Attorney General · filed 2005-11-16(a), (b)(1)

“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the [BIA] . . . .” 8 C.F.R. § 1003.2(a). ... A proper motion to reconsider must “specify[] the errors of fact or law in the prior [BIA] decision and . . . be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). ... As a practical matter, 8 C.F.R. § 1003.2(b)(1)’s requirement that a motion to reconsider must “specify[] the errors of fact or law in the prior [BIA] decision and shall be supported by pertinent authority” is difficult to meet when the prior decision at issue is an affirmance without opinion.

Section 1003.2 permits reopening when the submitted evidence is material and previously unavailable, and changed circumstances may provide an exception to the 90-day filing period.

Chang Tong Zheng v. Board of Immigration Appeals · filed 2005-11-16(c)(1), (e)(3)(ii)

“The regulations, in turn, provide 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.” 8 C.F.R. § 1003.2(c)(1) (2005); Kaur, 413 F.3d at 234. ... For the foregoing reasons, the petition for review is GRANTED, the BIA’s October 9, 2003 order is VACATED, and the case is REMANDED to the BIA for a determination of whether the evidence that Zheng has submitted demonstrates changed circumstances in China and, thus, provides an exception to the 90 day time-period for filing under 8 C.F.R. § 1003.2(e)(3)(ii).”

Section 1003.2(f) does not apply to tolling a voluntary-departure period because tolling does not stay execution of a deportation decision.

Barroso v. Gonzales · filed 2005-11-17(f)

We conclude that the regulation is not applicable and that tolling the time for voluntary departure does not constitute “stay[ing] the execution of a[ ] decision made in the case” within the meaning of section 1003.2(f).

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

Martinez-Fabela v. Gonzales · filed 2005-11-30(c)(2)

The BIA did not abuse its discretion when it denied petitioners’ motion to reopen as untimely because the motion was filed almost six months after the 90-day time limit had expired. See 8 C.F.R. § 1003.2(c)(2) (requiring a motion to reopen to be filed within 90 days).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the BIA's final order, subject to equitable tolling.

Kaur v. Gonzales · filed 2005-12-16(c)(2)

In petition No. 04-71859, the BIA did not abuse its discretion in denying Kaur’s motion to reopen as untimely where Kaur filed the motion more than ninety days after the BIA’s final order of removal and did not show she was entitled to equitable tolling. See 8 C.F.R. § 1003.2(c)(2); see also Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir.2002) (noting that a motion to reopen to apply for adjustment of status must be filed no later than ninety days after the issuance of a final decision by the BIA); see also Iturribarria, 321 F.3d at 897, 899 (equitable tolling applies “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering” the misconduct).

Section 1003.2(b)(1) requires a motion to reconsider to identify errors of fact or law in the prior Board decision and support them with pertinent authority; a new ground for relief alone is not enough.

Ortega v. Attorney General · filed 2005-12-01(b)(1)

However, a new ground for relief does not constitute an error of fact or law warranting reconsideration. See 8 C.F.R. § 1003.2(b)(1). A motion to the BIA 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). As Ortega failed to identify any such errors, the BIA did not abuse its discretion in denying Ortega’s motion for reconsideration.

Section 1003.2 requires a motion to reopen to be supported by evidence that is material and was unavailable and undiscoverable or unpresentable at the prior hearing.

Yan v. Bureau of Citizenship & Immigration Services · filed 2005-12-01

A motion to reopen will not be granted unless it appears to the BIA that the proffered 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.

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

Gjoni v. Bureau of Citizenship & Immigration Services · filed 2005-12-07(b)(1)

A motion to reconsider must specify errors of fact or law in the prior decision and be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1). Gjoni’s motion to reconsider merely restated the same arguments that she initially raised on appeal to the BIA, which the BIA had already addressed in detail and rejected. Her motion did not show any error of fact or law in the BIA’s prior decision, and thus the BIA did not abuse its discretion when it denied the motion.

Section 1003.2(b)(1) requires a motion to reconsider to identify errors of law or fact in the prior decision; merely repeating an earlier challenge is insufficient.

Wu v. Gonzales · filed 2005-12-13(b)(1)

The BIA did not abuse its discretion by denying Wu’s motion to reconsider because he merely reiterated his earlier challenge to the Id’s adverse credibility finding, and failed to identify any error of law or fact in the BIA’s previous decision. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir. 2003).

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

Bin Li v. Gonzales · filed 2005-12-13(b)(1)

A motion to reconsider must specify errors of fact or law and be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1). Li did not allege any error of fact or law, and so the BIA did not abuse its discretion when it denied the motion.

A motion to reconsider must identify errors of fact or law in the prior decision and include pertinent supporting authority.

You Gui Zhu v. United States Department of Justice · filed 2005-12-14(b)(1)

A motion to reconsider must specify errors of fact or law in the prior decision and be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1). Zhu’s motion to reconsider merely restated the same arguments he initially raised in his prior motion to reopen and in his appeal to the BIA, which the BIA had addressed and rejected. The BIA did not abuse its discretion when it denied the motion on the ground that Zhu’s motion for reconsideration did not set forth an adequate basis to warrant reconsideration of the BIA’s January 22, 2004 decision.

Section 1003.2(b) requires a motion to reconsider to identify errors of fact or law in the BIA's decision and to cite pertinent authority.

Long-Fen v. Gonzales · filed 2005-12-14(b)

The regulations provide that “a motion to reconsider must specify errors of fact or law in the [BIAj’s decision and be supported with pertinent authority.” ... The BIA does not abuse its discretion by denying a motion to reconsider where the motion merely restates the same arguments that the BIA had previously rejected.

Section 1003.2(c)(1) permits reopening based on new evidence only when the evidence is material and was unavailable at the earlier hearing.

Galeano v. U.S. Attorney General · filed 2005-12-01(c)(1)

Although the BIA has the discretion to grant a motion to reopen if there is new evidence that is material and was not available at the removal hear, see 8 C.F.R. § 1003.2(c)(1), and although evidence relating to her brother’s killing was new, Galeano did not establish that this killing was related to her claims in her application for relief from removal, and, thus, that it was material.