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Motions to Reconsider and Motions to Reopen

Sometimes Sharp Witted Lawyers Confuse Motions to Reconsider With Motions to Reopen.
 

On August 13, 2021, the Fifth Circuit Court of Appeal published a decision in which it distinguished motions to reconsider from motions to reopen and determined that a change in the law (such as a new United States Supreme Court decision) cannot constitute “new facts” under section 240(c)(7)(B) of the Immigration and Nationality Act, as amended ("the Act") to justify a motion to reopen.  Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, at 8 - 11 (5th Cir. 2021) No. 19-60274.

The procedural history, facts of record, holding and rationale in Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, (5th Cir. August 13, 2021) No. 19-60274 are as follows:

Case History

On May 10, 2001, the Petitioner was served with a Notice to Appear (NTA) charging him under section 237(a)(2)(A)(iii) of the Act as a removable alien who committed an aggravated felony defined by section 101(a)(43)(F) of the Act (i.e. crime of violence).

On January 17, 2002, an Immigration Judge denied the Petitioner’s application for withholding of removal under section 241(b)(3) of the Act and ordered him removed to El Salvador.

Although the Petitioner filed a late appeal to the Board of Immigration Appeals (“BIA”) he was ultimately removed.

On July 12, 2018, the Petitioner filed a motion entitled “Respondent’s Motion to Reconsider and Terminate in Light of Sessions v. Dimaya.”  The Petitioner described this motion as a motion to reconsider and terminate, or in the alternative, reopen.

The Immigration Judge denied the Petitioner's motion on August 31, 2018.

On September 27, 2018, the Petitioner appealed the Immigration Judge’s decision to the BIA.

The BIA dismissed the appeal on March 27, 2019.

The Petitioner then filed a timely Petition for Review.

 

Facts

The Petitioner is a native and citizen of El Salvador who arrived in the United States with his family when he was six years of age.

In 1992, he became a lawful permanent resident.

On January 18, 2001, the Petitioner pled guilty to one count of violating Texas Penal Code § 22.05(b), entitled “Deadly Conduct.”

Ultimately, the State Criminal Court sentenced the Petitioner to four years in prison and a $500 fine.

After serving his sentence, the Petitioner was removed to El Salvador.

On April 17, 2018, the United States Supreme Court published Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

In brief, the United States Supreme Court held in Sessions v. Dimaya that 18 U.S.C. § 16(b) as incorporated into section 101(a)(43)(F) of the Act is unconstitutionally vague. Sessions v. Dimaya, at 1223. Ultimately, the United States Supreme Court determined that the term “crime of violence” as defined in § 16(b) is so vague that it violates an alien’s right to due process. Sessions v. Dimaya, at 1223.

On April 17, 2018, the Petitioner’s brother, thinking that Sessions v. Dimaya might change the outcome of the Petitioner’s immigration proceedings, told the Petitioner about the Dimaya case.

This communication led to filing the “Respondent’s Motion to Reconsider and Terminate in Light of Sessions v. Dimaya” as described above in Case History.

The Immigration Judge denied the Petitioner’s motion upon determining that the motion was untimely (i.e. it had not been filed within 30 days of the final administrative order of removal). The Immigration Judge gave the Petitioner the benefit of equitable tolling by designating April 17, 2018 (the date that the Petitioner had learned about the Dimaya decision) as the end of equitable tolling and the beginning of the 30 day time period in which a motion to reconsider must be filed.  See section 240(c)(6)(B) of the Act.

Held

Petition for Review DENIED

Rationale

In support of his Petition for Review, the Petitioner asserted that:

  1. he was first advised by counsel on June 21, 2018 that his January 17, 2002 removal order was unlawful, and that the motion was filed less than 30 days later; in other words, his motion must be deemed timely filed if his June 21, 2018 consultation with his lawyer is used to end equitable tolling and begin counting toward the 30 day statutory deadline; and
  2. the BIA and the Immigration Judge should have construed the motion as a motion to reopen, and applied the 90 day deadline applicable to a motion to reopen, rather than the 30 day deadline applicable to a motion to reconsider; specifically, his motion was timely filed within 90 days of the Dimaya decision.  See section 240(c)(7)(C)(i) of the Act.

The Petitioner also asserted constitutional equal protection and due process violations arising from denial of his motion to reopen which are outside the jurisdiction of the Immigration Judge and the BIA to consider.

The Government asserted that:

  1. the proper statutory filing deadline begins to run on the date that the hardship preventing timely filing ends, which the BIA correctly identified as April 17, 2018 when the Petitioner learned of the change in law; and
  2. the BIA properly applied the statutorily prescribed time limit set forth in section 240(c)(6)(B) of the Act after determining when equitable tolling stopped.

The Fifth Circuit Court of Appeal reasoned as follows:

  • In some circumstances, equitable tolling may be appropriate. Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016).  In particular, an alien is entitled to equitable tolling of a statute of limitations only if: (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance has stood in his way and prevented timely filing.
  • According to Fifth Circuit Court of Appeal precedent, the discovery date of a case that could form the basis of the alien’s motion is the point at which filing deadlines begin to run. Gonzalez-Cantu v. Sessions, 866 F.3d 302, at 305 (5th Cir. 2017).
  • Therefore, the BIA’s decision to end the tolling period on the date that the Petitioner learned of the Dimaya case was supported by the evidence and consistent with Fifth Circuit Court of Appeal precedent.
  • Post-judgment motions to reopen and for reconsideration “are distinguished primarily by the fact that a motion for reconsideration does not present new evidence to the BIA.” Zhao v. Gonzales, 404 F.3d 295, at 301 (5th Cir. 2005) 2005); see also Hernandez-Castillo v. Sessions, 875 F.3d 199, at 203–04 (5th Cir. 2017).
  • Because the statute specifies that a motion to reopen must state “new facts,” and the Petitioner’s motion arose from a change in law, the BIA’s decision not to construe the Petitioner’s motion as a motion to reopen is not arbitrary and capricious, legally in error, or an abuse of discretion.  
  • To allow changes of law to be addressed in motions to reopen would contravene the statute and collapse the difference between a motion to reconsider and a motion to reopen with respect to changes in law, making the 30 day time limit for motions to reconsider new legal decisions superfluous.

The Fifth Circuit Court of Appeal denied the Petitioner’s allegations of Constitutional violations as follows:

  • With regard to the right to equal protection, the Petitioner did not allege any kind of purposeful discrimination on the part of the BIA.  The Peitioner failed to show that immigrants to whom the BIA granted relief were “similarly situated.”  Malagon de Fuentes v. Gonzales, 462 F.3d 498, at 507 (5th Cir. 2006).
  • With regard to the right to due process, the Petitioner’s disagreement with the BIA’s decision on the equitable tolling period does not mean he was denied due process, especially since the 30 day deadline he challenges is compelled by statute.  Furthermore, the Petitioner’s argument that “[t]he refusal to adjudicate [his] motion to reopen raises serious constitutional questions of due process,” is mistaken because there is no liberty interest at stake arising from a purely discretionary motion to reopen decision.

Commentary

For easy reference, Congress used the following language to establish motions to reconsider and motions to reopen relating to immigration proceedings:

Motions to Reconsider

  1. In General

The alien may file one motion to reconsider a decision that the alien is removable from the United States.

  1.  Deadline

The motion must be filed within 30 days of the date of entry of a final administrative order of removal.

  1.  Contents

The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.

See section 240(c)(6) of the Act.

Motions to Reopen

  1. In General

An alien may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent filing of one motion to reopen described in subparagraph (C)(iv).

  1. Contents

The 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.

  1. Deadline
      1. In General

Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.

See section 240(c)(7) of the Act.

Subparagraph “(C)(iv)” referenced in section 240(c)(7)(A) of the Act relates to an exception to any limitation on deadlines for battered spouses, children and parents.  Obviously, this subparagraph is not relevant to the Petition for Review discussed above.

In the somewhat organized chaos and the ground level fog of battle in which immigration courts function (as opposed to the sky high altitude with a clear vista where appellate courts well staffed with law clerks abide and the United States Supreme Court distinctly glistens on the horizon), Immigration Judges often rely on rules of thumb derived from laws and regulations as interpreted by established well known BIA decisions and sometimes well known appellate court decisions. 

In their ground level environment described above, Immigration Judges evaluate motions to reopen and motions to reconsider using the following standards.

Motions to reopen are distinct from motions to reconsider.  Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).  A motion to reopen seeks an opportunity to present new evidence so that a new decision can be entered based on a new factual record.  See 8 C.F.R. § 1003.23(b)(3).  Matter of Cerna, supra. 

A motion to reconsider addresses error made at the time the original decision is rendered and seeks re-examination of the original factual record in the light of new law or new legal arguments.  See 8 C.F.R. § 1003.23(b)(2).  Matter of Cerna, supra.

On more than one occasion during my time as an Immigration Judge, I have witnessed motions to reconsider labeled as motions to reopen and vice versa.  Regardless of how a motion was labeled, however, I would address it according to the nature of the motion (i.e. based on what the moving party was seeking).

Regulations regarding motions to reopen are framed negatively and authorize reopening only when minimum conditions are met.  INS v. Wang, 450 U.S. 139 (1981).  See also INS v. Abudu, 485 U.S. 94 (1988).   

An immigration practitioner should keep the distinction between motions to reconsider and motions to reopen in mind, especially since motions to reopen have the dubious honor of being described as “disfavored.”  Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, at 8 (5th Cir. August 13, 2021) No. 19-60274.

In short, immigration law practitioners need to remember at least three precepts articulated in Fredy Omar Gonzalez Hernandez:

  1. for now in the jurisdiction of the Fifth Circuit Court of Appeal, a change in law will not justify a motion to reopen; 
  2. the deadline for filing a motion to reconsider is within 30 days from the date of entry of a final administrative order of removal; and
  3. the deadline for filing a motion to reopen is within 90 days of the date of entry of a final administrative order of removal.
 

A practical mechanic to remember about motions to reconsider and motions to reopen, especially for procrastinators, that is not discussed in Fredy Omar Gonzalez Hernandez is how deadlines are calculated:
 

[T]he day the Immigration Judge renders an oral decision or mails a written decision counts as "day 0."  The following day counts as "day 1."  Statutory and regulatory deadlines are calculated using calendar days.  Therefore, Saturdays, Sundays, and legal holidays are counted.  If, however, a statutory or regulatory deadline falls on a Saturday, Sunday, or legal holiday, the deadline is construed to fall on the next business day.
 

See section 3.1(c)(ii)(D) of the Immigration Court Practice manual.

Finally, don’t count on appellate review of a decision denying a motion to reconsider or motion to reopen sua sponte (i.e. legalese meaning by spontaneous self-urging or recommendation).  In response to the Petitioner’s assertion of equal protection violation in Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez v. Garland, at 12, the Fifth Circuit Court of Appeal stated:

To the extent that Gonzalez Hernandez argues the BIA should have granted relief sua sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales, 435 F.3d 547, at 550 (5th Cir. 2006) (“[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving party] had been eligible for it.”

For those who are new to motion practice in immigration proceedings, an Immigration Judge and the BIA can sua sponte reconsider any order or disposition or reopen any proceeding that the respective decision maker issued or concluded.  See 8 C.F.R. §§ 1003.23(b) and 1003.2(a). 

The exercise of sua sponte authority, however, is purely discretionary.  Therefore, appellate courts might decline to review motion denials issued in the exercise of sua sponte authority.  See Heckler v. Chaney, 470 U.S. 821, at 830 (1985) ("[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.").  See, also, Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008); Anaya-Aguilar v. Holder, 683 F.3d 369, at 371-72 (7th Cir. 2012); Pllumi v. Attorney General of the United States, 642 F.3d 155, at 159-60 (3rd Cir. 2011) ("If . . . the BIA declines to exercise its sua sponte authority . . . in a manner that does not indicate a misunderstanding of its authority, then that decision will be unreviewable.); Gor v. Holder, 607 F.3rd 180, at 187-93 (6th Cir. 2010).

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