8 C.F.R. § 1003.2

Section 1003.2 distinguishes motions to reconsider from motions to reopen by their required showings, and limits reconsideration motions to 30 days while generally limiting reopening motions to one filing within 90 days.

Huang v. Gonzales · filed 2006-05-18(b)(1), (b)(2), (c)(1), and (c)(2)

Motions 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,” while motions to reopen “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(b)(1) and (c)(1). ... Moreover, Huang does not state how an analysis under Vargas would have led the BIA to a different conclusion with respect to the relief sought in his motion, particularly in light of the clear language of § 1003.2(b)(1) and (c)(1). ... A motion for reconsideration must be filed within 30 days after the mailing of the BIA decision of which reconsideration is sought. 8 C.F.R. § 1003.2(b)(2). ... The regulations provide that a petitioner may only file one motion to reopen, whether with the BIA or with the immigration judge. See 8 C.F.R. § 1003.2(c)(2). ... Moreover, such a motion must be filed within 90 days after the date of the final order of removal. See id.

Section 1003.2 limits a party to one motion to reconsider a given decision, bars reconsideration of a denial of a prior reconsideration motion, requires a reconsideration motion to identify factual or legal errors, and requires a reopening motion to present material new evidence that was previously unavailable and undiscoverable.

Jian v. Gonzales · filed 2006-06-08(b)(2), (b)(1), (c)(1)

The regulations state that a party may file only one motion to reconsider any given decision, and one may not seek reconsideration of a denial of a previous motion to reconsider. 8 C.F.R. § 1003.2(b)(2). The BIA correctly found that these regulations barred Jian’s second motion to reconsider if his first motion was one to reconsider. ... While a motion to reconsider must specify errors of fact or law, 8 C.F.R. § 1003.2(b)(1), a motion to reopen must offer new, previously unavailable and undiscoverable evidence which is material to the petitioner’s claim, 8 C.F.R. § 1003.2(c)(1).

The changed-circumstances exception to the 90-day deadline for a motion to reopen requires changed conditions in the country of nationality, not merely changed personal circumstances.

Da Wang v. Board of Immigration Appeals · filed 2006-06-08(c)(3)(ii)

There is no dispute that Wang’s motion was untimely, but he argues that his motion falls within the exception requiring “changed circumstances arising in the country of nationality....” 8 C.F.R. § 1003.2(c)(3)(ii). In his second motion to reopen, Wang asserted that his case should be reopened because he now has three children born in the United States. However, this Court has already held that a change in an individual’s personal circumstances does not qualify under the changed circumstances exception; an individual must demonstrate that the country conditions have changed in order for this exception to apply.

The regulation permits the BIA to consider an otherwise untimely motion to reopen only when country conditions have changed and the material supporting evidence was previously unavailable and could not have been discovered or presented at the prior hearing.

Gao v. Gonzales · filed 2006-06-01(c)(3)(h)

Gao’s motion to reopen therefore was presumptively untimely, and could be considered by the BIA only if Gao had demonstrated that the country conditions had changed, and that such evidence was material and “was not available and could not have been discovered or presented at the previous hearing.”

Section 1003.2(c)(3)(ii) requires a motion to reopen based on changed country conditions to rely on previously unavailable evidence.

Raisuddin v. Gonzales · filed 2006-07-13(c)(3)(ii)

This claim of changed circumstances could not, therefore, meet the requirement that motions filed pursuant to 8 C.F.R. § 1003.2(c)(3)(h) be premised on previously unavailable evidence.

Section 1003.2(c)(1) requires reopening evidence to be unavailable and undiscoverable or unpresentable at the former hearing; post-hearing execution alone is insufficient.

Eshak v. Attorney General of the United States · filed 2006-07-13(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. ... This statement misapprehends the requirements of 8 C.F.R. § 1003.2(c)(1); the question is not whether the affidavit was executed after the hearing, but whether it could not have been discovered or presented at that time.

Section 1003.2(c)(1) requires new evidence supporting a motion to reopen to appear material to the applicant’s claim, while subsection (a) gives the BIA discretion to grant or deny reopening or reconsideration subject to regulatory restrictions.

Yang v. Gonzales · filed 2006-06-23(c)(1)

According to 8 C.F.R. § 1003.2(a), the BIA has discretion to grant or deny motions to reopen or reconsider, subject to the restrictions contained therein. One such restriction with respect to a motion to reopen mandates that the new evidence must appear to the Board to be material to the applicant’s claim. See 8 C.F.R. § 1003.2(c)(1) (2005). The BIA found that this evidence was not material to his claim, because the IJ’s underlying decision was based on adverse credibility. Inasmuch as Yang’s new evidence was unrelated to the underlying basis for the IJ’s credibility determination, the BIA did not abuse its discretion in determining that it was not material in denying the motion.

Section 1003.2(c)(2) generally permits an alien to file only one motion to reopen, subject to the cited exception for asylum or withholding claims based on changed circumstances in the country of removal.

Vasquez-Ramirez v. Ashcroft · filed 2006-07-17(c)(2)

We conclude that the BIA acted within its discretion in denying Vasquez-Ramirez’s second motion to reopen. See 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii) (2006) (permitting only one motion to reopen, except when alien seeks to apply for asylum or withholding of removal based on changed circumstances in country to which alien is to be removed); Kanyi v. Gonzales, 406 F.3d 1087, 1089 (8th Cir. 2005) (standard of review).

Section 1003.2(c)(3)(ii) provides an exception to the time and numerical limits on motions to reopen when the petitioner presents sufficient evidence of changed circumstances arising in the country of nationality or the country to which deportation has been ordered.

Hang Jin Ke v. Board of Immigration Appeals · filed 2006-06-29(c)(3)(ii)

We affirm the BIA’s decision on this point because petitioner did not present sufficient evidence of “changed circumstances arising in the country or nationality or in the country to which deportation has been ordered....” 8 C.F.R. § 1003.2(c)(3)(ii)(2005).

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

Singh v. Gonzales · filed 2006-07-06(b)(2)

Without explanation or excuse, petitioner filed his motion to reconsider eighteen months after the order of the BIA became final. Petitioner does not contend that the BIA misconstrued his motion. As such, it was not an abuse of discretion to deny the motion as untimely since it plainly exceeded the 30-day filing deadline. 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(b) requires a motion to reconsider to identify material factual or legal errors supported by pertinent authority and, when applicable, explain errors in an affirmance without opinion or how a change in law materially affects the decision.

O-S-G · filed 2006-07-01(b)

In conclusion, we find that a motion to reconsider should, consistent with the statute and regulations set forth at 8 C.F.R. § 1003.2(b), include the following: (1) an allegation of material factual or legal errors in the Board’s decision that is supported by pertinent authority; (2) if the Board summarily affirmed the Immigration Judge’s decision, a showing that the alleged errors and legal arguments were previously raised on appeal and a statement explaining how the Board erred in affirming the Immigration Judge’s decision under the AWO regulations; and (3) if there has been a change in law, a reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of the Board’s decision is materially affected by the change.

Section 1003.2(c)(1) does not bar reopening based on ineffective assistance because counsel's incompetence renders the evidence previously unavailable, and § 1003.2(c)(2)'s number-bar must be waived when enforcing it would violate due process.

Sene v. Alberto Gonzales, Attorney General · filed 2006-07-06(c)(1), (c)(2)

Because Petitioner received ineffective assistance of counsel, the previously unavailable evidence rule was an improper basis on which to deny her motion to reopen. Section 1003.2(c)(1) prohibits the BIA from granting a motion to reopen “unless 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)(1). Where a petitioner receives ineffective assistance of counsel, such assistance is deemed to have rendered the petitioner’s evidence previously unavailable within the meaning of § 1003.2(c)(1). ... Similarly, the BIA’s failure to waive the number-bar as applied to Petitioner constitutes an abuse of discretion. Both the BIA and this Court have the authority to waive the number-bar on motions to reopen, ... and must do so where application of the number-bar would deprive a petitioner of his or her Fifth Amendment due process rights. In the instant case, failure to waive the number-bar deprived Petitioner of her due process rights by effectively preventing her from presenting her application for asylum.

Section 1003.2(c)(2) imposes time-and-number limits on motions to reopen, and those limits barred Gao’s second motion after more than seven years of inaction.

Jin Song Gao v. Gonzales · filed 2006-06-30(c)(2)

As a result, although the BIA misread the IJ’s decision, Gao failed to show that he exercised due diligence in seeking to toll the more than seven years in which he did not act on the IJ’s denial of his initial motion to reopen. See 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). Therefore, the BIA did not abuse its discretion in finding that Gao’s “second motion to reopen his deportation proceedings conducted in absentia in 1997[was] barred by both the time and number limits for such motions,” and that his “request for reopening in 2004 based on a change in personal circumstances, the birth of his children in 2002” should be denied because of his lack of due diligence in pursuing that motion.

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

Singh v. Gonzales · filed 2006-07-17(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). ... Equitable tolling therefore rendered Singh’s motion timely.

Section 1003.2(a) gives the BIA broad discretion to reopen a case on its own motion when exceptional circumstances may be present.

Zhi Fang Chen v. Bureau of Citizenship & Immigration Services · filed 2006-06-30(a)

The BIA, however, enjoys broad discretion to reopen a case under its own motion for “exceptional” situations.

Section 1003.2(b)(1) permits an alien to seek reconsideration of a BIA removal order based on a legal or factual error.

Hernandez v. U.S. Attorney General · filed 2006-07-13(b)(1)

After the BIA has affirmed an IJ’s order of removal, the alien may seek reconsideration on the ground that the BIA has made a legal or factual error. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1).

Section 1003.2(d) provides that an alien's departure after filing a motion to reopen constitutes withdrawal of that motion.

Ugokwe v. U.S. Atty. Gen. · filed 2006-06-28(d)

Under 8 C.F.R. § 1003.2(d), however, if Ugokwe were to leave the United States for any reason – including voluntary departure – while a motion to reopen was pending, that departure would constitute a withdrawal of the motion to reopen.

Section 1003.2(b)(2) permits only one motion for reconsideration in a case previously subject to a final decision by the BIA.

Ul v. Gonzales · filed 2006-06-23(b)(2)

The BIA correctly noted that regulations allow for only one motion for reconsideration in a case previously the subject of a final decision by the BIA. See 8 C.F.R. § 1003.2(b)(2). Ul’s January 2005 motion was the second to be construed as a motion to reconsider by the BIA.

Section 1003.2(a) authorizes the BIA to reopen or reconsider a case on its own motion, and its decision whether to exercise that discretion is reviewable for abuse of discretion.

Rahman v. U.S. Atty. General · filed 2006-07-05(a)

The regulations give the BIA the authority to rule on motions to reopen and reconsider, and grant the BIA sua sponte authority to reopen or reconsider a case, such as this one, in which it rendered a decision. 8 C.F.R. §§ 1003.2(a), (i). ... While we have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen or reconsider, we hold that the BIA did not abuse its discretion.

Section 1003.2(c)(2) generally bars more than one motion to reopen, while § 1003.2(c)(3)(h) provides an exception when the movant submits documents showing changed country conditions.

Singh v. Board of Immigration Appeals · filed 2006-07-14(c)(2), (c)(3)(h)

Here, the BIA did not abuse its discretion in denying Singh’s motion to reopen because it exceeded the numerical limitations for such motions. The instant motion was the third motion to reopen filed by Singh, clearly exceeding the single motion numerical bar. See 8 U.S.C. § 1229a(e)(7)(A) (2005); 8 C.F.R. § 1003.2(c)(2) (2005). Moreover, while there are exceptions to the numerical bar, Singh is not eligible for an exception because he failed to submit any documents to the BIA showing a change in country conditions in India. 8 U.S.C. § 1229a (c)(7)(C)(ii) (2005); 8 C.F.R. § 1003.2(c)(3)(h) (2005).

A motion to reconsider must identify an error of fact or law in the BIA’s prior decision.

Flores v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying Flores’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the immigration judge’s (“IJ’s”) order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

Section 1003.2(b)(1) permits denial of a motion to reconsider when the movant fails to identify an error of fact or law in the prior decision.

de Romero v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying Cervantes de Romero’s motion to reconsider because she failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order denying cancellation of removal.

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

Vargas-Hernandez v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the immigration judge’s (“IJ”) order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); SocopGonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

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

Diaz v. Gonzales · filed 2006-08-03(c)(1)

We review for abuse of discretion the BIA’s denial of petitioners’ motion to reopen to consider evidence the IJ disallowed at the hearing. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). The BIA did not abuse its discretion in denying the motion to reopen because petitioners failed to set forth any new facts or present any new evidence to demonstrate the requisite hardship. See 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material”).

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

Maciel-Ortega v. Gonzales · filed 2006-08-03(b)(1)

The BIA did not abuse its discretion in denying Maciel-Ortega’s motion to reconsider because his motion failed to identify any error of fact or law in the BIA’s prior decision that he failed to meet the high evidentiary burden associated with motions to reopen. See 8 C.F.R. § 1003.2(b)(1), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

Section 1003.2(c)(1) requires a motion to reopen to be supported by affidavits or other evidentiary material, and § 1003.2(b)(1) supports denial of reconsideration when the motion identifies no factual or legal error.

Gerardo v. Gonzales · filed 2006-08-03(c)(1), (b)(1)

The BIA did not abuse its discretion in denying Petitioners’ motion to reopen because they failed to present any evidence to support their contentions regarding ineffective assistance of counsel. See 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall be supported by affidavits or other evidentiary material”). The BIA was within its discretion in denying Petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

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

Sifuentes v. Gonzales · filed 2006-08-03(b)(1)

The BIA did not abuse its discretion in denying Petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision denying their motion to reopen. See 8 C.F.R. § 1003.2(b)(1), (c)(1); SocopGonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

Section 1003.2(c) requires a movant seeking to reopen removal proceedings to show that the supporting evidence was previously unavailable.

Soto v. Gonzales · filed 2006-08-03(c)

The BIA did not abuse its discretion in denying Garfias Soto’s motion to reopen because she failed to demonstrate the evidence she submitted was previously unavailable. See 8 C.F.R. §§ 1003.2(a) and (c); Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir.2005).

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.

Rumierz v. Gonzales · filed 2006-08-03(a)

Even if a prima facie case for relief is shown, the BIA “has discretion to deny a motion to reopen.” 8 C.F.R. § 1003.2(a); see also Maryam v. Gonzales, 421 F.3d 60, 62 (1st Cir.2005).

A motion to reconsider must be filed within 30 days of the BIA's final decision.

Perez-Velasquez v. Gonzales · filed 2006-08-03(b)(2)

The BIA was within its discretion in denying as untimely Petitioners’ motion to reconsider because the motion was filed nearly three months after the BIA issued its final decision on December 20, 2004. See 8 C.F.R. § 1003.2(b)(2).

A motion to reconsider must identify an error of fact or law in the prior decision.

Solano v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying Paz Solano’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

A motion to reconsider must identify an error of fact or law in the prior decision.

Sandoval v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying Sandoval’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

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

Aldana v. Gonzales · filed 2006-08-03(b)(1)

The BIA was within its discretion in denying Petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the immigration judge’s order denying cancellation of removal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

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

Reyes-Garcia v. Gonzales · filed 2006-08-03(c)(1)

To the extent Reyes-Garda attempted to present new information in her motion to reconsider, the BIA did not abuse its discretion in construing that part of her motion as a motion to reopen, and denying it on the grounds that Reyes Garcia failed to present evidence to support any of her contentions. See 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall be supported by affidavits or other evidentiary material”).

Section 1003.2(c)(3)(ii) requires changed circumstances supporting an exception to the motion-to-reopen limits to arise in the country of nationality; a self-induced change in personal circumstances is insufficient.

Ling v. Gonzales · filed 2006-09-14(c)(3)(ii)

The plain language of 8 C.F.R. § 1003.2(c)(3)(ii) provides that “changed circumstances” must “aris[e] in the country of nationality,” rather than the United States, and we have emphasized before that “[a] self-induced change in personal circumstances” does not suffice to merit the granting of a time-barred or numerically-barred motion to reopen.

Section 1003.2(a) gives the BIA discretion to deny a motion to reopen, including an untimely motion, even when the applicant has made out a prima facie case for relief.

Tinaj v. U.S. Attorney General · filed 2006-09-18(a)

The BIA had discretion to deny Tinaj's untimely motion to reopen even if Tinaj had made out a prima facie case for relief. See 8 C.F.R. § 1003.2(a). Thus, no liberty interest was implicated. The BIA did not violate Tinaj's due process rights.

Section 1003.2(b)(1) requires a motion for reconsideration to identify the legal or factual errors in the prior order and to cite pertinent supporting authority.

Paez v. U.S. Attorney General · filed 2006-09-14(b)(1)

A motion for reconsideration “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) (same).

Section 1003.2(b) makes a motion to reconsider discretionary, and an alien's failure to request that relief does not deprive the court of jurisdiction to review the BIA's decision.

Jose J. Padilla-Padilla Guadalupe D. Padilla-Enriquez Adela Enriquez v. Alberto R. Gonzales, Attorney General · filed 2006-09-13(b)

The government argues, third, that the Padillas should have filed a motion to reconsider in the BIA before filing a petition for review in this court. Whether to grant a motion to reconsider is within the discretion of the BIA. See 8 C.F.R. § 1003.2(b); INA § 240(c)(5), 8 U.S.C. § 1229a(c)(5); Noriega-Lopez, 335 F.3d at 881. The failure to request such discretionary relief does not deprive us of jurisdiction. Alcaraz, 384 F.3d at 1160; see Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir.2004).

Section 1003.2(c)(1) requires a motion to reopen to be supported by material evidence that was unavailable at the hearing or could not have been discovered earlier through due diligence.

Santos, Oscar G. v. Gonzales, Alberto R. · filed 2006-09-11(c)(1)

“A motion to reopen seeks fresh consideration on the basis of newly discovered facts or a change in circumstances since the hearing,” Fessehaye v. Gonzales, 414 F.3d 746, 753 (7th Cir. 2005) (internal citation omitted), and should be granted only if the alien presents evidence that is material and was not available at the hearing before the IJ or could not have been discovered earlier by the exercise of due diligence.

Section 1003.2(a) makes the BIA’s decision whether to reopen a case sua sponte entirely discretionary and therefore unreviewable by this Court.

Chen v. Gonzales · filed 2006-09-13(a)

However, this Court lacks jurisdiction to review a decision of the BIA not to reopen a case sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.”

The changed-circumstances exception to the time limit for a motion to reopen applies to circumstances arising in the country of nationality or the country to which deportation has been ordered, not to a petitioner’s marriage to a U.S. citizen or the birth of U.S.-born children.

Paula v. Gonzales · filed 2006-09-08(c)(3)(ii)

We also find to be without merit petitioner’s argument that the birth of her U.S.-born children, her marriage to a U.S. citizen, and her husband’s obtaining of an immediate relative petition constituted “changed circumstances” under 8 C.F.R. § 1003.2(c)(3)(ii) (stating that time limitations do not apply when there are “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered”). In light of § 1003.2(c)(3)(ii)’s particular focus on “the country of nationality or ... the country to which deportation has been ordered,” id. (emphasis added), we have held that neither marriage to U.S. citizens nor the birth of U.S.-born children constitutes “changed circumstances” necessitating the grant of an untimely motion to reopen proceedings.

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

Singh v. Gonzales · filed 2006-09-18(b)(2)

The BIA did not abuse its discretion in denying Sigh’s motion to reconsider as untimely because he filed the motion more than four years after the BIA’s underlying decision. See 8 C.F.R. § 1003.2(b)(2) (stating that a motion to reconsider must be filed with the BIA within 30 days after the mailing of the BIA’s decision).

Section 1003.2(c)(3)(ii) creates an exception to the motion-to-reopen deadline only for changed circumstances arising in the country of nationality or the country to which deportation has been ordered, not for any changed circumstance.

Chen v. Board of Immigration Appeals · filed 2006-09-20(c)(3)(ii)

Chen’s first argument fails because the regulations do not provide an exception to *82the timeliness rule in case of any changed circumstance, only in case of “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered.” 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2 requires a motion to reopen to be filed within 90 days, unless it is based on qualifying changed country conditions that were material and previously unavailable; changed personal circumstances do not qualify for the exception.

Ming Fang Lin v. Gonzales · filed 2006-09-20(c)(2), (c)(3)(ii)

A motion to reopen must be filed within 90 days after the date on which a final administrative decision was rendered in the proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2). However, time and numerical limitations do not apply to a motion to reopen that is “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). ... Here, the BIA did not abuse its discretion in denying Lin’s motion as untimely, where the final administrative decision in his case was entered in October 2002 and where he filed his motion to reopen in December 2005. Lin has not shown a change in country conditions that would warrant an exception to the filing deadline because the birth of his two children constitutes only a change in personal circumstances.

Section 1003.2(c)(1) requires a motion to reopen to include the appropriate applications for relief.

Barajas v. Gonzales · filed 2006-09-21(c)(1)

The BIA did not abuse its discretion in denying this motion. As the BIA noted, 8 C.F.R. § 1003.2(c)(1) required Petitioner to include the appropriate applications for relief with her motion, which she failed to do.

Section 1003.2(c)(2) imposes a numerical bar on a second motion to reopen, subject to regulatory exceptions.

Hernandez-Bautista v. Gonzales · filed 2006-09-25(c)(2)

The Board of Immigration Appeals (“BIA”) did not abuse its discretion in denying petitioner’s second motion to reopen based on a possible change in immigration law proposed by the President of the United States because the motion to reopen was numerically barred and did not meet any of the regulatory exceptions. See 8 C.F.R. § 1003.2(c)(2), (3); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002) (the court reviews the BIA’s denial of a motion to reopen for an abuse of discretion).

Subsection (c)(2) limits a party to one motion to reopen and generally requires filing within 90 days, while subsection (a) permits the BIA to reopen proceedings on its own motion as a matter of discretion.

Aminullah v. Gonzales · filed 2006-09-27(c)(2), (a)

Here, The BIA did not abuse its discretion in denying Aminullah’s motion to reopen based on the failure to abide by the numerical limitations. The regulations permit only one motion to reopen removal proceedings, and the BIA accurately noted that the instant motion was the fourth motion to reopen filed by Aminullah, clearly exceeding the numerical bar. See 8 U.S.C. § 1229a(c)(7)(A) (2005); 8 C.F.R. § 1003.2(c)(2) (2005). Likewise, the BIA properly determined that Aminullah filed his motion beyond the ninety day-deadline, when he submitted it in April 2005, and the BIA’s last decision was entered on December 22, 2004. 8 U.S.C. § 1229a(c)(7)(C) (2005); 8 C.F.R § 1003.2(c)(2) (2005). ... Additionally, Aminullah’s suggestion that the BIA acted arbitrarily by failing to address its sua sponte authority to reopen his proceedings, is unavailing. Considering the extensive procedural history in this case, there is no indication that the BIA failed to consider Aminullah’s re*43quest to reopen his proceedings as a matter of discretion under 8 C.F.R. § 1003.2(a), and this Court lacks jurisdiction to review the BIA’s decision to decline to do so. See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).

Section 1003.2(c)(2) generally permits only one motion to reopen filed within 90 days, while § 1003.2(c)(3)(ii) exempts motions based on materially changed country conditions fundamentally affecting asylum eligibility.

Singh v. Board of Immigration Appeals · filed 2006-09-27(c)(2), (c)(3)(ii)

Turning to the merits of those decisions that are under review, we find that the BIA did not abuse its discretion in denying either Singh’s 2004 or 2005 motion to reopen inasmuch as Singh had filed one motion to reopen previously, which had been dismissed in January 2002, both these motions were both time and numerically barred. See 8 C.F.R. § 1003.2(c)(2) (an alien may file only one motion to reopen, within 90 days of the final administrative decision in his case). The regulations allow for an exception to these bars when the alien establishes changed circumstances in his home country fundamentally affecting his eligibility for asylum, see 8 C.F.R. § 1003.2(c)(3)(ii), but the BIA reasonably determined that Singh failed to establish such a change in support of either motion.

Section 1003.2(d) bars a person who departed the United States after removal proceedings began from reopening those proceedings to seek relief.

Marsan v. Attorney General of the United States · filed 2006-09-27(d)

Even assuming arguendo that Marsan is otherwise eligible for § 212(c) relief, he may not reopen the original immigration proceedings to apply for a waiver of deportation because he left the United States after those proceedings were initiated.

Section 1003.2(c)(2) imposes a 90-day deadline for filing a motion to reopen, making a motion filed nearly ten months after the challenged final order untimely.

Chen v. Gonzales · filed 2006-10-20(c)(2)

The BIA did not abuse its discretion in denying Chen’s motion to reopen as untimely. Chen’s motion, which challenged the BIA’s final order of August 30, 2002, was filed nearly 10 months later on June 23, 2003, well beyond the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2).

Section 1003.2 requires a motion to reopen based on grounds other than changed circumstances to be filed within ninety days after the final administrative order.

Li v. Bureau of Citizenship & Immigration Services · filed 2006-10-06

In any event, a motion to reopen based on grounds other than changed circumstances must be filed within ninety days after the final administrative order. See 8 C.F.R. § 1003.2. Given the five year gap between the IJ’s removal order and Li’s motion to reopen, the IJ’s and BIA’s refusal to find that delay excusable is not an abuse of discretion, as the only explanation that Li gave for such a delay was that the travel agency told her not to appeal her case.

A motion to reopen generally must be filed within 90 days of the final decision being challenged, subject to specified exceptions.

Quezada-Ramirez v. Gonzales · filed 2006-10-30(c)(2)

With certain exceptions not relevant here, a motion to reopen must be filed within 90 days of the final decision sought to be reopened. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(C)(i). Quezada-Ramirez filed his motion nearly five months after the deadline.

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the final order of removal, subject to equitable tolling in certain ineffective-assistance cases until the movant discovers or should have discovered the ineffective assistance, with due diligence required.

Chen v. Gonzales · filed 2006-11-06(c)(2)

The regulations state that individuals must file a motion to reopen within 90 days of the final order of removal, see 8 C.F.R. § 1003.2(c)(2), and there is no dispute that Chen’s motion was filed out of time. However, the time requirement may be equitably tolled for motions based on ineffective assistance of counsel in certain circumstances. See, e.g., Iavorski v. INS, 232 F.3d 124, 129-34 (2d Cir.2000); Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006). The filing deadline will be tolled only until the movant discovers, or should have discovered the ineffective assistance. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In addition, the applicant must prove that he exercised due diligence in filing the motion. Id. at 170 (internal citations omitted).

Section 1003.2(c)(2) limits an alien to one motion to reopen, subject to applicable regulatory exceptions; the court held the submitted evidence did not qualify for an exception to that limit.

Gebra v. Atty Gen USA · filed 2006-10-03(c)(2)

An alien has the right to file “only one motion to reopen deportation or exclusion proceedings,” whether before the BIA or IJ. 8 C.F.R. § 1003.2(c)(2) (emphasis added). ... Thus, we hold that the BIA did not abuse its discretion in ruling that this evidence is not sufficient to qualify under any of the statutory exceptions to the limit upon successive motions to reopen.

Section 1003.2(c)(2) bars a motion to reopen when it is untimely and numerically barred, while § 1003.2(c)(3)(ii) provides an exception for changed circumstances in the country of nationality that must be supported by evidence.

Chen v. Gonzales · filed 2006-10-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying Chen’s motion as both time and numerically barred, when it was filed more than six years after the denial of his first motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Neither did the BIA abuse its discretion when it concluded that Chen’s motion did not fall within an exception to these bars, specifically the exception for aliens who can demonstrate changed circumstances arising in the country of nationality, see 8 C.F.R. § 1003.2(c)(3)(ii), inasmuch as he failed to present evidence of any such change.

Section 1003.2(c)(2) requires a motion to reopen within 90 days and permits only one motion, and equitable tolling does not apply here.

Wang v. Atty Gen USA · filed 2006-10-31(c)(2)

An alien has the right to file a motion to reopen removal proceedings and must do so “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). An alien also has the right to file “only one motion to reopen” removal proceedings whether before the BIA or the immigration judge. Id. (emphasis added). Although the deadline for filing a motion to reopen may be equitably tolled by a showing of ineffective assistance of counsel, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005), we have not stated that a claim for ineffective assistance of counsel will “equitably toll” the numerical limits on successive motions to reopen, see Luntungan v. Att’y Gen. of the U.S., 449 F.3d 551, 557 (3d Cir. 2006). Even assuming that the one motion limit can be “equitably tolled,” we hold that equitable tolling does not apply here.

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

Wang v. Attorney General of the United States · filed 2006-10-31(c)(2)

An alien has the right to file a motion to reopen removal proceedings and must do so “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). An alien also has the right to file “only one motion to reopen” removal proceedings whether before the BIA or the immigra*64tion judge. Id. (emphasis added).

Section 1003.2(a) places motions to reopen within the Board’s discretion, and section 1003.2(c)(1) requires supporting evidence that is material and was not previously available or discoverable.

Vushaj v. Gonzales · filed 2006-10-05(a), (c)(1)

“The decision to grant or deny a motion to reopen ... is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). We review the Board’s denial of a motion to reopen for an abuse of discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). In order for a Board to consider a motion to reopen the proceedings, it must be accompanied by evidence which 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). In their motion to reopen the case, the Vushajs presented the Board with two handwritten letters from two former Albanian police officers who wrote to confirm that the contents of the detention order were true. While these documents are clearly material to the previous holdings of the immigration court and the Board, Mr. Vushaj never explained to the Board why these statements were previously unavailable, especially in light of the four-year delay between Vushaj’s initial merits hearing in 2000 and the final one conducted in 2004. Vushaj’s brief provides no guidance, only to say the evidence was “previously unavailable.” This is insufficient to demonstrate an abuse of discretion by the Board. Therefore, we affirm the decision of the Board denying Vushaj’s motion to reopen his case.

Section 1003.2(c)(1) bars the Board from granting a motion to reopen unless the offered evidence is material and was unavailable and could not have been discovered or presented at the prior hearing.

Dorado v. Gonzales · filed 2006-11-02(c)(1)

Rather, in light of the new psychological evidence, Briceno could have submitted a motion to reopen under 8 C.F.R. § 1003.2(c). This motion would likely have been denied, however, because the Board is prohibited from granting 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.” 8 C.F.R. § 1003.2(c)(1). There is nothing in the record to indicate that Briceno could not, with or without the assistance of counsel, have obtained the psychologist’s report in time for the cancellation-of-removal hearing. Briceno is therefore barred from relying on what he alleges to be the Board’s failure to consider the report.

Section 1003.2(a) and (c) permits the BIA to deny a motion to reopen when the new evidence was not previously unavailable to the movant.

Cruz v. Gonzales · filed 2006-11-09(a) and (c)

We conclude, however, that the BIA did not abuse its discretion in denying petitioner’s motion to reopen proceedings, because he faded to demonstrate that the new evidence he submitted was previously unavailable, given that petitioner was aware of the abuse prior to the removal hearing and even briefly mentioned the abuse during his testimony. See 8 C.F.R. §§ 1003.2(a) and (c); Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir.2005).

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

Shu Sheng Sung v. Gonzales · filed 2006-10-26(b)

The motion must specify errors of fact or law in the BIA’s decision and be supported with pertinent authority. See 8 C.F.R. § 1003.2(b); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).

Section 1003.2 gives the Board broad discretion to grant or deny motions to reopen, including denying one even when the movant has made a prima facie case, and requires support by affidavits or other evidentiary material.

Persaud v. U.S. Attorney General · filed 2006-10-24(a), (c)

The discretion afforded the BIA under 8 C.F.R. § 1003.2(a) with respect to granting and denying motions to reopen is expansive. ... Specifically, the provision provides that “[t]he 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 reoopen must be supported by “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c).

Section 1003.2(b)(2) requires a motion to reconsider to be filed within thirty days.

Pastor-Hernandez v. Gonzales · filed 2006-10-31(b)(2)

Pastor-Hernandez had until September 12, 2004 to file his motion to reconsider, but the BIA received and filed it on October 5, 2004. The motion was untimely. See 8 C.F.R. § 1003.2(b)(2) (thirty days to file motion to reconsider).

Section 1003.2(c)(2)’s deadline may be equitably tolled for ineffective assistance of counsel only when the alien proves a due-process violation and due diligence, while § 1003.2(a) gives the BIA discretionary sua sponte reopening authority that this court lacks jurisdiction to review.

Szudarski v. Gonzales · filed 2006-10-24(c)(2), (a)

Ineffective assistance of counsel can equitably toll § 1003.2(c)(2)’s limitations period where the alien demonstrates “that (1) his counsel’s conduct violated the alien’s constitutional right to due process and (2) the alien ‘has exercised due diligence in pursuing the case during the period the alien seeks to toll.’ ” ... The tolling continues until the ineffective assistance “is, or should have been, discovered by a reasonable person in the situation,” and through any period beyond that during which the alien has “exercised due diligence in pursuing the case.” ... The alien seeking to toll bears the burden of proving his diligence throughout the period he seeks to toll. ... Szudarski also asks the Court to review the BIA’s refusal to use its discretionary power under 8 C.F.R. § 1003.2(a) to reopen Szudarski’s case sua sponte; but as we held in Ali, 448 F.3d at 518, we lack jurisdiction to engage in such a review.

Section 1003.2(c)(2) sets a deadline for motions to reopen that will not be equitably tolled when the movant fails to show diligence after discovering alleged ineffective assistance.

Kumar v. Gonzales · filed 2006-11-09(c)(2)

The BIA did not abuse its discretion by refusing to toll the deadline for filing a motion to reopen where Kumar failed to demonstrate that he exercised diligence in filing the motion after meeting with new counsel and discovering his prior attorney’s alleged ineffective assistance. See 8 C.F.R. § 1003.2(c)(2), Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003) (where equitable tolling applies, limitations period begins when respondent meets with new counsel and learns of fraud).

Section 1003.2(c)(3)(ii) exempts a motion to reopen from the filing deadline when it is based on material changed-country-conditions evidence that was unavailable and could not previously have been discovered or presented.

Gjoliku v. Gonzales · filed 2006-11-02(c)(3)(ii)

The 30 and 90 day filing deadlines for motions to reopen and reconsider do not apply where the motion is “based on changed circumstances arising in the country of nationality ... 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). However, all of the evidence submitted by the petitioner in support of his changed circumstances claim was either available at the previous hearing or not material. Thus, the BIA did not abuse its discretion in finding that such evidence did not warrant reopening Gjoli-ku’s removal proceedings.

Section 1003.2(c)(3)(ii) permits an untimely motion to reopen for asylum or withholding based on material changed country conditions that were unavailable and could not previously have been discovered or presented.

Cordova-Bramon v. U.S. Atty. Gen. · filed 2006-11-06(c)(3)(ii)

“An exception to the timely filing requirement exists if, inter alia, the alien is reapplying for asylum and withholding of removal “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. at § 1003.2(c)(3)(ii). ... In this case, the BIA did not abuse its discretion in denying Cordova-Bramon’s motion to reopen, because he did not show changed circumstances in Peru so as to come within the exception to the timely filing requirement. ... This evidence was both available during his removal hearing in 2003 and does not constitute a change in circumstances pursuant to 8 C.F.R. § 1003.2(c)(3)(ii).”

Section 1003.2(b) requires a motion to reconsider to identify factual or legal errors and cite pertinent authority; § 1003.2(c)(1) bars reopening unless the evidence is material, previously unavailable, and undiscoverable or unpresentable at the former hearing.

Yan Ping Lin v. Gonzales · filed 2006-09-29(b), (c)(1)

The regulations provide that a motion to reconsider must specify errors of fact or law in the BIA’s decision and be supported with pertinent authority. See 8 C.F.R. § 1003.2(b). Here, because Lin admits that she did not inform the BIA that she had given birth to her third child until after it had already decided her appeal, the agency made no errors of law or fact that would warrant the grant of a motion to reconsider. In addition, “[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). Here, all of Lin’s arguments for reopening her case were connected to the January 1997 Tantou regulations that she submitted as “new” evidence. However, we agree with the BIA that the regulations were previously available to Lin. Even if the evidence was unavailable at the time of her hearing, Lin fails to explain why it was also unavailable when she filed her first motion to reopen in June 1999 or when she filed her appeal to the BIA in September 2000.

Section 1003.2(c) requires a movant seeking remand to show that supporting evidence was unavailable and could not have been discovered or presented at the prior hearing.

Barragon-Perez v. Gonzales · filed 2006-11-09(c)

The BIA did not abuse its discretion when it denied the motion to remand because Barragon-Perez made no showing that Elijah King’s affidavit was not available and could not have been discovered or presented at the prior hearing, as required by 8 C.F.R. § 1003.2(c).

Section 1003.2(c)(2) requires a motion to reopen a final removal order within 90 days, subject to the changed-country-conditions exception in subsection (c)(3)(ii) when the evidence is material and could not previously have been discovered.

Cardona v. U.S. Attorney General · filed 2006-10-25(c)(2), (c)(3)(ii)

Motions to reopen a final removal order 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). An exception to the filing deadline arises if evidence of changed circumstances in the country of removal becomes available, the evidence is material, and the evidence could not have been discovered for presentation at the previous hearing. 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires a motion to reopen to rely on material evidence that was unavailable and could not have been discovered or presented at the former hearing.

Udjari v. Gonzales · filed 2006-10-20(c)(1)

“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005). As Udjari presented the same arguments in her motion to reopen as she presented to the BIA on direct appeal, the BIA acted within its discretion in finding that she failed to meet the requirements for a motion to reopen and denying the motion.

The exception to the ninety-day deadline for a motion to reopen based on changed country conditions does not apply when the same claim was raised and denied in an earlier motion.

Bhuiyan v. Gonzales · filed 2006-10-26(c)(3)(ii)

Because his claim of changed country conditions was raised in his first motion to reopen and had been denied, he is not entitled to the regulatory exception from the ninety-day time limitation. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004); 8 C.F.R. § 1003.2(c)(3)(ii). It was not an abuse of discretion to deny the second motion as untimely.

The 90-day deadline for a motion to reopen does not apply when the alien establishes changed country conditions in the country of nationality.

Lin v. Board of Immigration Appeals · filed 2006-11-07(c)(3)(ii)

A motion that is not filed within 90 days of the final administrative decision can be brought only where the alien can establish “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a(e)(7)(C)(ii) (2005); 8 C.F.R. § 1003.2(c)(3)(ii) (2005). ... Lin has failed to establish that there are “changed country conditions” in China that would make him eligible for the exception pursuant to 8 U.S.C. § 1229a(c)(7)(C)(ii) (2005); 8 C.F.R. § 1003.2(c)(3)(ii) (2005). As a result, the BIA did not abuse its discretion in finding his motion to reopen untimely.

Section 1003.2(b) requires a motion to reconsider to identify errors of fact or law, subsection (c)(2) imposes a 90-day deadline for motions to reopen, and subsection (c)(3)(ii) permits an exception when the alien submits evidence of changed country conditions.

Chen v. Gonzales · filed 2006-10-13(b), (c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying Chen’s motion to reconsider because he failed to demonstrate any errors in the BIA’s underlying denial of his motion to reopen. See 8 C.F.R. § 1003.2(b) (a motion to reconsider must specify the errors of fact or law in the prior BIA decision). The BIA acted within its discretion in denying Chen’s previous motion to reopen as untimely, inasmuch as it was filed several months after the 90-day deadline had passed for filing a motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Although the regulations do allow an exception to the filing deadline in cases where the alien submits evidence of changed country conditions, see 8 C.F.R. § 1003.2(c)(3) (ii), and one of Chen’s many allegations in his motion to reopen was that conditions in China were getting worse, he did not elaborate or explain how any increase in human rights violations related specifically to his own case.

Section 1003.2(b)(1) requires a motion to reconsider to identify errors of fact or law, while section 1003.2(c)(1) requires new, material, previously unavailable facts for reopening.

Ruiz v. U.S. Attorney General · filed 2006-10-24(b)(1), (c)(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.” INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). A motion to reopen shall state “new facts” that would be proven at a new hearing but “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 INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). ... Here, Ruiz did not present evidence or argument that the BIA committed an error of law or fact in denying his asylum petition. See 8 C.F.R. § 1003.2(b)(1). Instead, Ruiz chose to reargue the merits of his already-rejected claims. Moreover, he did not present new evidence that warranted reopening the proceedings. ... Simply put, the new evidence did not state “new facts” that had not already been considered by the BIA and IJ. See 8 C.F.R. § 1003.2(c)(1).

A motion to reconsider must satisfy § 1003.2(b)(1)'s evidentiary requirements, and a motion to reopen cannot rely on information already presented at the merits hearing.

Sarga v. Gonzales · filed 2006-10-24(b)(1), (c)(1)

Because Sarga’s motion failed to meet the evidentiary requirements for a motion to reconsider under 8 C.F.R. § 1003.2(b)(1), the BIA reasonably construed it as a motion to reopen. ... The letters submitted by Sarga provide no information beyond what was already presented during his merits hearing. See 8 C.F.R. § 1003.2(c)(1).

Section 1003.2(a) makes the BIA’s decision whether to reopen removal proceedings sua sponte entirely discretionary and therefore generally unreviewable.

Lin v. Gonzales · filed 2006-11-14(a)

We lack jurisdiction to review a decision of the BIA not to reopen a case sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.”

The BIA's decision whether to reopen removal proceedings on its own motion under § 1003.2(c)(1) is entirely discretionary and therefore not reviewable.

Diop v. Gonzales · filed 2006-12-04(c)(1)

Finally, Diop’s challenge to the BIA’s decision not to invoke its sua sponte authority to reopen under 8 C.F.R. § 1003.2(c)(1) is not reviewable, because such a decision is entirely discretionary.

Section 1003.2(a) permits the Board of Immigration Appeals to reopen a case on its own motion at any time, including to consider whether newly vacated convictions invalidate a removal order.

Padilla, Luis F. v. Gonzales, Alberto · filed 2006-12-07(a)

Here, the BIA had the authority to reopen Padilla’s case sua sponte “at any time,” and had the ability to grant relief if it concluded his newly vacated convictions rendered the removal order invalid. See 8 C.F.R. § 1003.2(a). Section 1252(d)(1) applies, so Padilla was required to give the BIA an opportunity to address his arguments before presenting them to this court.

Subsection (a) permits the BIA to reopen a case sua sponte at any time when it has rendered a decision.

Padilla v. Alberto R. Gonzales and Deborah Achim · filed 2006-12-07(a)

Here, the BIA had the authority to reopen Padilla’s case sua sponte “at any time,” and had the ability to grant relief if it concluded his newly vacated convictions rendered the removal order invalid. ... Section 1252(d)(1) applies, so Padilla was required to give the BIA an opportunity to address his arguments before presenting them to this court.

Section 1003.2(c)(2) requires an alien seeking to reopen proceedings before the BIA to file the motion no later than 90 days after the final administrative decision.

Singh v. Gonzales · filed 2006-11-09(c)(2)

The BIA did not abuse its discretion when it determined that Singh’s motion to reopen was untimely. See 8 C.F.R. § 1003.2(c)(2) (an alien seeking to reopen proceedings before the BIA must file the motion to reopen no later than 90 days after the final administrative decision).

Section 1003.2(c)(2) requires a motion to reopen to be filed within ninety days of the Board of Immigration Appeals’ order dismissing the appeal.

Shaw v. Gonzales · filed 2006-11-09(c)(2)

The BIA did not abuse its discretion in denying Shaw’s motion to reopen because he did not file the motion within ninety days of the BIA’s order dismissing his appeal, see 8 C.F.R. § 1003.2(c)(2), and did not comply fully with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639, 1988 WL 235454 (BIA 1988), see Reyes, 358 F.3d at 597-99 (discussing the importance of an affidavit and an opportunity for former counsel to respond to allegations where ineffective assistance was not plain on the face of the record).

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

Avetisian v. Gonzales · filed 2006-11-14(c)(2)

The BIA did not abuse its discretion in denying Avetisian’s motion to reopen because it was untimely. See 8 C.F.R. § 1003.2(c)(2) (requiring a motion to reopen to be filed “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”).

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

Rosales-Picen v. Gonzales · filed 2006-11-15(c)(2)

The BIA did not abuse its discretion in denying Rosales-Picen’s motion to reopen as untimely because she 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) imposes a 90-day filing limit for motions to reopen, and the changed-country-conditions exception does not apply when the proffered evidence is not material.

Zuluaga v. U.S. Atty. General · filed 2006-12-01(c)(2)

Subject to certain exceptions set forth in the statute and regulations, "the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." Id. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). ... However, even if the petitioners had not abandoned this issue, we are persuaded that the BIA did not abuse its discretion by denying their motion because (1) petitioners filed their motion after the time limitations for filing such motion had expired; (2) they did not attach any affidavits or evidence in support of their motion; and (3) the evidence they referred to in their motion was not material to their claim to warrant an exception to the time limitations for filing a motion to reopen in the regulations.

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

Bonilla v. Gonzales · filed 2006-12-01(c)(2)

A motion to reopen must be filed no later than ninety days after the date on which the final administrative decision is rendered. See 8 C.F.R. § 1003.2.(c)(2). Accordingly, this petition for review is denied.

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

Sun Chun Jiang v. Gonzales · filed 2006-12-06(c)(2)

Because Jiang filed his motion over one year after the BIA denied his appeal, his motion was untimely. See 8 C.F.R. § 1003.2(c)(2).

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

Serrano v. Gonzales · filed 2006-12-08(c)(2)

The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because petitioners did not file the motion 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) generally requires a motion to reopen to be filed within 90 days of the final administrative order.

Ruiz v. Gonzales · filed 2006-12-21(c)(2)

Petitioner’s motion to reopen to the Board of Immigration Appeals (BIA) dated April 13, 2006, was untimely as it was filed after 90 days of the BIA’s final order dated September 9, 2004, and does not present any exceptions to the 90 day limitation. See 8 C.F.R. §§ 1003.2(c)(2), (3)(i-iv).

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

Huerta v. Gonzales · filed 2006-12-27(c)(2)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because Huerta did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R.. § 1003.2(c)(3)(ii).

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

Rodriguez v. Gonzales · filed 2006-12-27(c)(2)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because she did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(e)(3)(ii).

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

Hernandez v. Gonzales · filed 2006-12-27(c)(2)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because petitioners did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

The section generally requires a motion to reopen to be filed within 90 days, with an exception when the movant demonstrates materially changed circumstances in the country of removal.

Infante v. Gonzales · filed 2006-12-29(c)(2), (c)(3)(ii)

As to the BIA’s August 31, 2004, order, the BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely, because they did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

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

Reyes v. Gonzales · filed 2006-12-29(c)(2)

As to the BIA’s August 26, 2004, order, the BIA did not abuse its discretion in denying petitioner’s motion to reopen as untimely, because he did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate prima facie eligibility for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c)(2) (applicant for CAT relief must prove “it is more likely than not that he or she would be tortured if removed to the proposed country of removal”); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“[P]rima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen.”).

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

Gonzalez v. Gonzales · filed 2006-12-29(c)(2)

The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely, because they did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate prima facie eligibility for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c)(2) (applicant for CAT relief must prove “it is more likely than not that he or she would be tortured if removed to the proposed country of removal”); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“[P]rima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen.”).

Section 1003.2 requires a motion to reopen to be filed within 90 days of the BIA's final removal order unless an exception applies, including materially changed circumstances in the country of removal.

Cortes v. Gonzales · filed 2006-12-29(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying petitioner’s motion to reopen as untimely, because he did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days of the final administrative order, while subsection (c)(3)(ii) provides an exception when the motion is based on materially changed country conditions.

Ayala v. Gonzales · filed 2006-12-29(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely, because they did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

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

Badereddine v. Chertoff · filed 2006-11-17(c)(2)

The BIA did not abuse its discretion in denying Badereddine’s motion as both time and numerically barred, when it was his third motion to reopen, and was filed over four years after the IJ’s removal order became final, and none of the regulatory exceptions applied. See 8 C.F.R. § 1003.2(c)(2) (a motion to reopen must be filed within 90 days of the final administrative decision), (c)(3) (providing exceptions).

Section 1003.2(c)(2) permits only one motion to reopen, so a third motion is numerically barred.

Pacheco-Vasquez v. Gonzales · filed 2006-11-29(c)(2)

Additionally, as Pacheco had previously filed two motions to reopen, his third motion to reopen was barred by the numerical limitation set forth in § 1003.2(c)(2), which permits only one motion to reopen.

Section 1003.2(c)(2) generally bars a second motion to reopen, subject to the regulatory exceptions.

Alvarado v. Gonzales · filed 2006-12-01(c)(2)

The Board of Immigration Appeals (“BIA”) did not abuse its discretion in denying petitioners’ second motion to reopen because the motion to reopen was numerically barred and did not meet any of the regulatory exceptions.

Section 1003.2(b) bars a seventh motion to reopen or reconsider when it exceeds the regulation’s numerical limit.

Perez v. Gonzales · filed 2006-12-01(b)

The Board of Immigration Appeals (“BIA”) did not abuse its discretion in denying petitioner’s seventh motion to reopen or reconsider, because the motion was numerically barred.

Section 1003.2(c)(2) bars more than one motion to reopen and requires filing within 90 days of the final administrative decision, while § 1003.2(c)(3)(h) provides an exception for changed circumstances arising in the country of nationality.

Singh v. Baord of Immigration Appeals · filed 2006-12-05(c)(2), (c)(3)(h)

...The BIA did not abuse its discretion in denying Singh’s motion as both time-and numerically barred, when it was filed nearly sixteen months after the denial of his first motion to reopen. See 8 C.F.R. § 1003.2(c)(2)(an alien may file only one motion to reopen, within 90 days of the final administrative decision). Moreover, the BIA properly declined to find that Singh’s motion fell within any exception to these bars- — namely the exception for aliens who can demonstrate changed circumstances arising in the country of nationality, see 8 C.F.R. § 1003.2(c)(3)(h)— even construing his arguments and evidence liberally.

Section 1003.2(c)(2) permits only one motion to reopen removal proceedings, so a second motion exceeds the numerical limit.

Kaur v. Board of Immigration Appeals · filed 2006-12-06(c)(2)

Here, the BIA did not abuse its discretion in denying Kaur’s motion to reopen proceedings based on her failure to abide by the numerical limitations. The regulations permit only one motion to reopen removal proceedings, and the instant motion was the second motion to reopen filed by Kaur, exceeding the numerical bar. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).

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

Guzman v. Gonzales · filed 2006-12-21(c)(2)

Petitioner’s fourth motion to reopen is barred by numerical limitations. See 8 C.F.R. § 1003.2(c)(2) (motions to reopen limited to one motion, with certain exceptions).

Section 1003.2(b)(2) imposes numerical limits that bar a third motion to reconsider.

Mendoza v. Gonzales · filed 2006-12-21(b)(2)

Petitioner’s third motion to reconsider is barred by numerical limitations. See 8 C.F.R. § 1003.2(b)(2).

Section 1003.2(c)(2) bars a second motion to reopen as time- or number-barred, subject to equitable tolling when the movant demonstrates reasonable diligence during the period sought to be tolled.

Kaso v. Gonzales · filed 2006-12-29(c)(2)

Although these procedural requirements are subject to equitable tolling, petitioners have not “affirmatively demonstrate[d] that [they] exercised reasonable due diligence during the time period sought to be tolled.” ... Thus, petitioners have not met their burden of demonstrating reasonable diligence, and their second motion to reopen is therefore procedurally barred under 8 C.F.R. § 1003.2(c)(2).

Section 1003.2(c)(1) requires evidence offered in a motion to reopen to be material and previously unavailable, undiscoverable, or unpresentable, and permits denial when that requirement is not met.

Zi Qiang Pan v. Gonzales · filed 2006-12-13(c)(1)

“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006) (noting that the date on which the IJ closes the record is the date before which the evidence must be unavailable, undiscoverable, or unpresentable). Failure to offer such evidence is a proper ground on which the BIA may deny a motion to reopen, as is the movant’s failure to establish a prima facie case for the underlying substantive relief sought.

Section 1003.2(b)(1) requires a motion to reconsider to identify factual or legal errors and cite pertinent authority, while § 1003.2(a) leaves the decision to grant or deny reconsideration to the Board’s discretion.

Bal v. Gonzales · filed 2006-12-07(b)(1), (a)

BIA regulations provide that a “motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). “The decision to grant or deny a motion to . . . reconsider is within the discretion of the Board . . . .” 8 C.F.R. § 1003.2(a). Therefore, the BIA’s decision to deny a motion for reconsideration is reviewed for abuse of discretion.

Section 1003.2(a) places decisions to reopen or reconsider within the BIA's discretion, subject to review for arbitrariness, irrationality, or legal error.

Mkanyia v. Attorney General · filed 2006-11-16(a)

A determination to open or reconsider “is within the discretion of the [BIA.]” 8 C.F.R. § 1003.2(a). Consequently, we will not disturb a decision on an application to reopen or reconsider unless it is “arbitrary, irrational or contrary to law.”

Section 1003.2(a) gives the Board discretion to grant or deny a motion to reopen or reconsider, including denying reopening even when the movant has made a prima facie case for relief, subject to the section’s restrictions.

Cavilha v. U.S. Attorney General · filed 2006-11-30(a)

“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. 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). ... The BIA did not abuse its discretion in denying Cavilha’s motion to reopen.

Section 1003.2(a) requires a motion to reopen or reconsider a case decided by the Board of Immigration Appeals to be filed with the Board, so an Immigration Judge lacks jurisdiction while the case remains with the Board.

Medina v. Gonzales · filed 2006-12-11(a)

We conclude that the IJ correctly determined that the IJ lacked jurisdiction to entertain a motion to reopen Medina’s petition because jurisdiction remained with the BIA following Medina’s appeal. 8 C.F.R. § 1003.2(a) provides that “[a] request to reopen or reconsider any case in which a decision is made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board.” (Emphasis added). ... Medina filed an appeal of her order of removal with the BIA, which had jurisdiction over the appeal, precluding the IJ from subsequently entertaining Medina’s *681motion to reopen. See 8 C.F.R. § 1003.2(a).

Section 1003.2(b) requires a motion to reconsider to specify errors of fact or law in the BIA’s initial decision and support those errors with pertinent authority.

Chen v. Gonzales · filed 2006-12-12(b)

To secure reconsideration, an alien must specify errors of fact or law in the BIA’s initial decision, supporting that claim with pertinent authority. See 8 CFR § 1003.2(b); Ke Zhen Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001).

Section 1003.2 bars a second motion to reopen when the one-motion limit applies, requires a material change in circumstances to invoke the relevant exception, and sets a 30-day deadline for motions to reconsider.

Melendez-Delgado v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii), and (b)(2)

To the extent Melendez-Delgado sought to reopen removal proceedings, the BIA did not abuse its discretion in denying her motion, because it exceeded the one-motion limit, see 8 C.F.R. § 1003.2(c)(2), and she did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii). ... To the extent Melendez-Delgado sought reconsideration, the BIA did not abuse its discretion in denying her motion, because it was filed more than 30 days after the BIA’s previous order. See 8 C.F.R. § 1003.2(b)(2).

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

Hatta v. Attorney General · filed 2006-12-20(c)(1)

The Board is obliged by 8 C.F.R. § 1003.2(c)(1) not to grant a motion to reopen in immigration proceedings “unless it appears . . . that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”

Section 1003.2(c)(1) requires a motion to reopen to be supported by evidence that is material and was unavailable and could not have been discovered or presented at the former hearing.

Volkova v. U.S. Attorney General · filed 2006-12-22(c)(1)

A petitioner may file a motion to reopen where 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 regulations provide that a motion to reopen “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also See Al Najjar, 257 F.3d at 1302 (11th Cir. 2001) (recognizing that there are at least three independent grounds on which the BIA 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.”).

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

Cutaj v. Gonzales · filed 2006-11-15(c)(1)

Additionally, “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). The petitioner has failed to establish that the evidence in question was not discoverable at an earlier time or that it could not have been produced at the evidentiary hearing before the immigration judge.

A motion to reconsider must identify an error of fact or law in the prior decision.

Ruiz v. Gonzales · filed 2006-12-27(b)(1)

The BIA was within its discretion in denying Ruiz’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order denying cancellation of removal and denying the motion to remand. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

Section 1003.2(c)(2) imposes a one-motion limit on motions to reopen, and § 1003.2(b)(2) sets a filing deadline for motions to reconsider.

Pelaez v. Gonzales · filed 2006-12-27(c)(2), (b)(2)

To the extent petitioners sought to reopen removal proceedings, the BIA did not abuse its discretion in denying petitioners’ motion, because it exceeded the one-motion limit, see 8 C.F.R. § 1003.2(c)(2), and petitioners did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(h). ... To the extent petitioners sought reconsideration, the BIA did not abuse its discretion in denying petitioners’ motion, because it was filed more than 80 days after the BIA’s previous order. See 8 C.F.R. § 1003.2(b)(2).

Subsection (c)(2) requires a motion to reopen to be filed no later than 90 days after the final administrative decision, but equitable tolling can make a late motion timely.

Singh v. Gonzales · filed 2006-12-22(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). The INS’s letter of March 3, 2003 about Singh’s adjustment of status application did not state that his appeal to the BIA had been dismissed on June 5, 2002. Several months later, Singh sought and then retained new counsel. He filed the motion to reopen at issue diligently after being informed that Kang did not communicate the BIA’s decision to him. Equitable tolling therefore rendered Singh’s motion timely. See Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir.2002).

Section 1003.2(c)(2)'s time bar cannot be circumvented by relying on purported ineffective assistance of counsel as the basis for reopening.

Medina-Torres v. Gonzales · filed 2006-12-29(c)(2)

He therefore cannot rely on counsel’s purported ineffectiveness to circumvent the time-bar. See 8 C.F.R. § 1003.2(c)(2).

Section 1003.2 generally requires a motion to reopen to be filed within 90 days of the Board’s final removal order, unless the movant demonstrates materially changed circumstances in the country of removal.

Rojas v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because petitioners did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) imposes a 90-day deadline for motions to reopen, while § 1003.2(c)(3)(h) provides an exception when there is a material change in circumstances in the country of removal.

Camacho v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(h)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because petitioners did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(h).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the BIA’s final order of removal, unless the exception in § 1003.2(c)(3)(ii) applies because of a material change in circumstances in the country of removal.

Santiago v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because Santiago did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

A motion to reopen must be filed within 90 days of the Board of Immigration Appeals’ final removal order unless the movant demonstrates materially changed circumstances in the country of removal.

Cisneros v. Gonzales · filed 2006-12-27(c)(2) and (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because petitioners did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) imposes a 90-day deadline for motions to reopen, while § 1003.2(c)(3)(ii) permits an exception when the applicant demonstrates materially changed circumstances in the country of removal.

Vargas v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because Vargas did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(2) requires a motion to reopen to be filed within 90 days of the BIA’s final order of removal, unless an exception such as materially changed country conditions applies under subsection (c)(3)(ii).

Estrada-Mederos v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because petitioners did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires a motion to reopen to include documents that were unavailable and could not have been discovered or presented at the former hearing.

Ming He Du v. Gonzales · filed 2006-12-06(c)(1)

Du submitted numerous documents in support of his motion to reopen, and he argues that the IJ failed to consider all of the documents even though they were not available at the time of his initial asylum hearing. Du fails to acknowledge, however, that the regulations require a movant to submit documents that “[were] not available and could not have been discovered or presented at the former hearing” in order to succeed on a motion to reopen. 8 C.F.R. § 1003.2(c)(1). Many of the documents Du submitted in support of his motion, although not in his possession at the time of his initial hearing, could have been obtained at that time. Accordingly, the agency did not abuse its discretion in failing to consider these documents in support of Du’s motion to reopen his asylum proceedings.

Section 1003.2(c)(2) imposes a 90-day deadline for motions to reopen, while § 1003.2(e)(3)(ii) permits an exception for material, previously unavailable changed circumstances in the country of nationality or country of deportation.

Chen v. Bureau of Citizenship & Immigration Services · filed 2006-11-29(c)(2), (e)(3)(ii)

To the extent that it was construed as a motion to reopen (a motion which, pursuant to 8 C.F.R. § 1003.2(c), the BIA properly had jurisdiction to adjudicate), it was properly denied. Chen’s motion was filed more 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 therefore could consider the motion only if it was “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(e)(3)(ii). But Chen’s motion was *405expressly “based upon changed personal circumstances,” — ie., two children born in the United States — and asserted that the birth of those two children made her “subject to China’s despotic one-child family planning policies.” Because Chen’s motion was premised on changed personal circumstances, the BIA did not abuse its discretion in denying it.

Section 1003.2(c)(3)(ii) exempts a motion to reopen from the usual numerical and timeliness limits when it is based on materially changed country conditions, and the agency must consider evidence offered to show those changed conditions.

Lin v. Board of Immigration Appeals · filed 2006-12-05(c)(3)(ii)

In order to be exempt from the numerical and timeliness limitations that would otherwise bar his motion to reopen, Lin asserted material changes both in his personal circumstances and in the circumstances in China which had arisen since his deportation hearing. See 8 C.F.R. § 1003.2(c)(3)(ii). ... The BIA failed to address, even in a cursory fashion, evidence submitted by Lin of a change in the implementation of China’s Family Planning Laws since his first application to reopen, including evidence of the alleged sterilization and abortion of persons in his native village in China. The complete failure by the BIA, in evaluating a motion to reopen, to address evidence offered by a petitioner of changed country conditions is an abuse of discretion.

Section 1003.2(c)(2) limits motions to reopen to one motion filed within 90 days, while subsection (c)(3)(ii) exempts motions based on material changed country conditions, not merely changed personal circumstances.

Wang v. Gonzales · filed 2006-12-06(c)(2), (c)(3)(ii)

The regulations require an alien seeking to reopen removal proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered and allow the filing of only one motion to reopen. 8 C.F.R. § 1003.2(c)(2). ... Neither limitation applies where the motion is “based on changed circumstances arising in the country of nationality ... 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). ... This Court has held that changes in an individual’s personal circumstances do not equate to changed country conditions sufficient to exempt a motion to reopen from the time and numerical limitations.

Section 1003.2(c)(2) limits a removal proceeding to one motion to reopen filed within 90 days, while § 1003.2(c)(3)(ii) permits an exception when materially changed country conditions are shown.

Chang v. Board of Immigration Appeals · filed 2006-12-15(c)(2), (c)(3)(ii)

Here, the BIA did not abuse its discretion in denying Chang’s motion to reopen proceedings based on her failure to abide by the time and numerical limitations. The regulations permit only one motion to reopen removal proceedings, and the instant motion was the third motion to reopen filed by Chang, clearly exceeding the numerical bar. ... Furthermore, Chang filed the motion over four years following the BIA’s dismissal of her appeal, well beyond the ninety-day deadline. ... Moreover, Chang is not eligible for an exception to the numerical and time limitations, see 8 C.F.R. § 1003.2(c)(3)(ii), where the BIA properly determined that she did not demonstrate that conditions in China had changed materially for purposes of falling within the exception to these limitations.

Section 1003.2(c)(3)(ii) exempts motions to reopen seeking asylum or withholding based on materially changed, previously unavailable country conditions from the usual time and numerical limits.

Thomas v. Attorney General · filed 2006-12-22(c)(3)(ii)

The typical time and numeric limitations on motions to reopen do not apply when the purpose of the motion is “[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.” 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(3)(ii) permits a person seeking relief based on changed country conditions to request that relief from the BIA in the first instance.

Prasad v. Gonzales · filed 2006-12-27(c)(3)(ii)

We are aware of the recent coup in Fiji, cf. Gafoor v. INS, 231 F.3d 645, 654-55 (9th Cir.2000), but any relief Prasad may wish to seek on the basis of changed circumstances must be requested from the BIA in the first instance. See 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2 generally requires a motion to reopen within 90 days of the final removal order, unless the movant demonstrates materially changed country conditions.

Grano v. Gonzales · filed 2006-12-29(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely, because they did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(3)(ii) exempts motions to reopen based on changed country conditions from the ordinary time and numerical limits.

Elias v. Gonzales · filed 2007-01-05(c)(3)(ii)

The time and numerical limitations placed on motions to reopen do not apply to motions founded upon changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires a motion to reopen to be supported by an affidavit or other admissible evidence, and failure to provide that support is fatal to the motion.

Reyes v. Gonzales · filed 2006-11-29(c)(1)

When Diaz moved to reopen, she failed to support her motion with any affidavit or other admissible evidence. That, alone, was fatal to her motion. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1); INS v. Wang, 450 U.S. 139, 143, 101 S.Ct. 1027, 1030, 67 L.Ed.2d 123 (1981) (per curiam).

The changed-country-circumstances exception to the motion-to-reopen deadline does not apply when the asserted change is the birth of children in the United States, because that is a personal circumstance rather than a change arising in the country of nationality.

Zhang v. Gonzales · filed 2006-11-13(c)(3)(ii)

The BIA also reasonably found “that the birth of [Zhang’s two] children in the United States — what amounts to a change in personal circumstances — [did not] constitute[ ] a change in circumstances arising in the country of nationality which would create an exception to the time ... limitations for filing a motion to reopen [under] 8 C.F.R. § 1003.2(c)(3)(ii).”

The changed-circumstances exception applies only when conditions in the country of nationality have changed, not merely the alien’s personal circumstances.

Guan v. Gonzales · filed 2006-10-27(c)(3)(h)

Wang asserts that her proceedings should be reopened because she now has two children born in the United States. However, this Court has already held that a change in an individual’s personal circumstances does not qualify under the changed circumstances exception; an individual must demonstrate that the country conditions have changed in order for this exception to apply. Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (per curiam) (holding that an alien failed to qualify for the changed circumstances exception by asserting only that his personal circumstances had changed by the birth of a child in the United States); Jian Huan Guan v. BIA 345 F.3d 47, 49 (2d Cir.2003) (per curiam). Accordingly, the BIA did not abuse its discretion when it determined that Guan’s motion was untimely and failed to fall within one of the enumerated exceptions.

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days of the final order of removal, while § 1003.2(c)(3)(ii) permits the time limit to be overcome when the applicant demonstrates materially changed circumstances in the country of removal.

Valdez v. Gonzales · filed 2006-12-27(c)(2), (c)(3)(ii)

The BIA did not abuse its discretion in denying the motion to reopen as untimely, because Valdez did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c) treats a motion seeking discretionary relief based on circumstances arising after a hearing as a motion to reopen, limits an alien to one such motion filed within 90 days, and deems a motion filed during a pending BIA appeal a motion to remand.

Nnebedum v. Gonzales · filed 2006-11-14(c)

Finally, we conclude that the BIA properly treated Nnebedum’s motion to submit supplemental evidence (her son’s I-130 petition) and related motion to remand as successive motions to reopen, and we find no abuse of discretion in the BIA’s denial of those motions as untimely and numerically barred. See 8 C.F.R. § 1003.2(c) (2005) (motion for purpose of affording alien opportunity to apply for any form of discretionary relief on basis of circumstances that have arisen after hearing is motion to reopen; alien may file only one motion to reopen removal proceedings, and motion must be filed within 90 days of decision sought to be reopened; motion will be deemed motion to remand if filed while appeal is pending before BIA).

Section 1003.2(b)(1) permits an alien to seek reconsideration after the BIA affirms an IJ's removal order for a legal or factual error and requires the motion to identify the errors in the prior order and support them with pertinent authority.

Olma Liliana Ricaurte Rodriguez v. U.S. Atty. Gen. · filed 2006-12-27(b)(1)

After the BIA has affirmed an IJ’s order of removal, the alien may seek reconsideration on the ground that the BIA has made a legal or factual error. See INA § 240(c)(6); 8 U.S.C. §1229a(c)(6); 8 C.F.R. § 1003.2(b)(1). ... Here, we conclude from the record that the BIA did not abuse its discretion in denying the petitioners’ motion to reconsider because (1) the petitioners did not identify any errors of law or fact in the BIA’s order dismissing their appeal from the IJ’s decision, as required by 8 U.S.C. § 1229a(c)(6)(C) and 8 C.F.R. § 1003.2(b)(1); (2) the majority of the petitioners’ brief only contains argument concerning the merits of their claim for asylum and fails to set forth any facts or law relevant to the denial of their motion to reconsider; and (3) the record shows that Ricaurte’s nephew was granted asylum, not her son.

Section 1003.2(c)(2) generally requires a motion to reopen to be filed within 90 days, unless changed circumstances in the country of nationality or deportation support an exception.

Durasevic v. Gonzales · filed 2006-12-08(c)(2)

Because petitioners filed their motion more than ninety days after the denial of their appeal, they were required to show changed circumstances in Serbia and Montenegro giving rise to a prima facie case for asylum, withholding of removal, or relief under the Convention Against Torture (“CAT”) in order for their motion to be exempt from the timeliness bar. See 8 C.F.R. § 1003.2(c)(2), (c)(3)(h).

Section 1003.2(c)(2) imposes a 90-day deadline for motions to reopen, subject to the changed-country-conditions exception in § 1003.2(c)(3)(h) for material evidence that could not have been previously discovered or presented.

Chen v. Gonzales · filed 2006-12-26(c)(2), (c)(3)(h)

An applicant must submit a motion to reopen within 90 days after the date on which the final administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2). The Chens did not submit their motion to reopen until well after this deadline. An exception to the 90-day limit does exist where a motion to reopen is “based on changed circumstances arising in the country or nationality to which deportation has been ordered, if such evidence is material and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(3)(h). However, the Chens did not raise this claim in their motion to reopen and it is therefore waived.

Section 1003.2(b)(2) requires a motion to reconsider a BIA decision to be filed within 30 days of that decision.

Sandoval v. Gonzales · filed 2006-12-08(b)(2)

The BIA did not abuse its discretion by denying the petitioners’ motion to reconsider as untimely. Id. Petitioners filed their motion to reconsider on June 28, 2004, over a year after the BIA issued its final decision on the merits on May 20, 2003. See 8 C.F.R. § 1003.2(b)(2) (motions to reconsider must be filed within 30 days of the BIA’s decision).

Section 1003.2(b)(1) permits the BIA to deny a motion to reconsider when the movant fails to identify an error of fact or law in the prior decision.

Kaur v. Gonzales · filed 2006-11-09(b)(1)

The BIA was within its discretion in denying the motion because it failed to identify any error of fact or law in the BIA’s prior decision dismissing her appeal from the I J’s order denying relief. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).

Section 1003.2(a) makes the BIA’s sua sponte reopening decisions entirely discretionary and unreviewable, while subsection (c)(3)(ii) allows an untimely reopening motion based on material changed country conditions.

Wang v. Gonzales · filed 2006-12-20(a), (c)(3)(ii)

As a preliminary matter, this Court lacks jurisdiction to review a decision of the BIA not to reopen a case sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.” ... Because Wang filed her motion more than ninety days after the BIA’s final order of removal, she was required to show material, changed circumstances in China giving rise to a fear of persecution or torture in order for her motion to be exempt from the timeliness bar. ... For these reasons, the BIA did not abuse its discretion in concluding that Wang demonstrated no material change in conditions in China. See 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) requires a party seeking reopening based on new evidence to show that the evidence was previously unavailable and could not have been discovered or presented at the former hearing.

Zhang v. U.S. Department of Justice · filed 2006-12-26(c)(1)

Therefore, the BIA did not abuse its discretion, Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam), in not remanding Zhang’s case to the immigration court on the basis that he failed to prove that his new evidence “was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005).

Section 1003.2(c)(3)(iii) waives the time limit for filing a motion to reopen when the parties jointly file the motion.

Hadi v. Attorney General · filed 2006-12-27(c)(3)(iii)

Under the regulations, the time period for filing a motion to reopen is waived if the parties jointly file a motion to reopen a case. See 8 C.F.R. § 1003.2(c)(3)(iii). ... Hadi failed to file a timely motion to reopen, and it is not a violation of her due process rights for DHS to refuse to join her motion to reopen in order to make it timely.

Section 1003.2(c)(2) bars a motion to reopen filed more than 90 days after the BIA’s final order, while § 1003.2(c)(3)(ii) provides an exception when the movant demonstrates materially changed circumstances in the country of removal.

Carrillo v. Gonzales · filed 2006-12-27(c)(2) and (c)(3)(ii)

The BIA did not abuse its discretion in denying Palma Carrillo’s motion to reopen as untimely, because he did not file the motion within 90 days of the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and did not demonstrate a material change in circumstances in Mexico, see 8 C.F.R. § 1003.2(c)(3)(ii).

Section 1003.2(c)(1) permits the BIA to grant a motion to remand based on new facts only when the evidence is material, previously unavailable, and could not have been discovered or presented at the prior hearing.

Ticoalu v. Gonzales · filed 2006-12-28(c)(1)

The BIA may only grant a motion to remand "based on new facts if the 'evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.'" Toban, 385 F.3d at 45 (quoting 8 C.F.R. § 1003.2 (c)(1)).