SAMPLE B Motion to Reconsider and Reopen with IJ or BIA for Simple Possession Conviction NOT CHARGED UNDER INA§ 237(a)(2)(A)(iii) Instructions: 1. Edit ALL bolded text as appropriate. 2. Attach a Certificate of Service. 3. Check BIA manual and local immigration court rules regarding motions, including format. 4. If client is in deportation proceedings (pre-IIRIRA), please make appropriate changes. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW [INSERT BOARD OF IMMIGRATION APPEALS or IMMIGRATION COURT] [INSERT FALLS CHURCH, VIRGINIA or CITY, STATE] In re: ) ) [INSERT NAME XXXXXX,] ) ) Respondent. ) ) In [INSERT Deportation or Removal] Proceedings ) ) ) No. [INSERT case number] MOTION TO RECONSIDER AND REOPEN THE [INSERT IMMIGRATION JUDGE or BOARD OF IMMIGRATION APPEALS] DECISION IN LIGHT OF LOPEZ v. GONZALES I. INTRODUCTION Pursuant to sections 240(c)(6) and 240(c)(7) of the Immigration and Nationality Act the [INSERT Immigration and Naturalization Service (INS) or Department of Homeland Security (DHS)] charged Respondent with removability under [INSERT charge(s) of inadmissibility/deportability]. Lopez has made clear that Respondent’s conviction is not an aggravated felony and thus does not bar [INSERT him or her] for applying for relief. finding that Respondent’s drug conviction was an aggravated felony. the Respondent was convicted of [INSERT offense name] under [INSERT state statute]. . the [INSERT immigration judge (IJ) or BIA] found the Respondent ineligible for [INSERT cancellation of removal or asylum and withholding of removal or [insert other form of relief]] for having been convicted of an aggravated felony based on a drug possession conviction under [INSERT state conviction statute]. 2006 U. The immigration judge sustained the charge. Gonzales. The Respondent thus asks the [INSERT court or BIA] to reconsider this case and reopen proceedings for a hearing on Respondent’s application for [INSERT form of relief]. the Respondent moves the [INSERT immigration court or Board of Immigration Appeals (BIA or Board)] to reconsider and reopen this case in light of the Supreme Court’s recent decision in Lopez v. II.(INA). The Supreme Court held that a state drug possession offense must be punishable as a federal felony in order to qualify as an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act (INA). The immigration judge also found the Respondent ineligible for [INSERT form of relief].S. LEXIS 9442 (2006). RELEVANT PROCEDURAL HISTORY On [INSERT date]. ___. 549 U. In this case. On [INSERT date].S. The Respondent filed this motion as soon as practicable following the Supreme Court’s ruling. A motion to reconsider shall include “an allegation of material factual or legal errors in the Board’s decision that is supported by pertinent authority” and “if there has been a change in the law. 24 I&N Dec.’” Matter of Cerna. a reference to the relevant statute. STANDARD FOR RECONSIDERATION AND REOPENING A motion to reconsider pursuant to INA § 240(c)(6) is a “‘request that the Board reexamine its decision in light of additional legal arguments.] [INSERT. 60 (BIA 2006).to wit. regulation. 399. or perhaps an argument or aspect of the case which was overlooked. 56. if applicable: On [INSERT date]. the BIA affirmed the IJ’s order of removal.] III. See [INSERT case citation] and/or [EXPLAIN if another federal court has ruled on any aspect of the case. if necessary. illicit trafficking in a controlled substance under INA § 101(a)(43)(B). [INSERT explanation of delay in filing. The immigration judge ordered the Respondent removed on [INSERT date]. a change of law. 402 n. 2006. if applicable: Respondent was removed from the United States on [INSERT date. [INSERT.] [INSERT. or precedent and an explanation of how the outcome of the Board’s decision is materially affected by the change. 20 I&N Dec.” Matter of O-SG-.]] The Supreme Court issued its 8-1 decision in Lopez on December 5. if applicable: The Circuit Court of Appeals upheld this decision on [INSERT date]].2 (BIA 1991). A motion to reopen under INA § 240(c)(7) asks the IJ or BIA to reopen proceedings so that the respondent may present new evidence and a new decision can be entered following an . 20 I&N Dec. See id. but would not be punishable as felonies under federal law. 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 and other evidentiary material. Id.2(c)(1) or 1003. “Unless a state offense is punishable as a federal felony it does . LEXIS 9442 at *24. Matter of Cerna. The petitioner in Lopez was a lawful permanent resident who pled guilty of aiding and abetting another person’s possession of cocaine under South Dakota law. at *9.” 8 C. The Supreme Court’s Decision Establishes that Respondent Was Not Convicted of Aggravated Felony and Is Not Barred From Applying for [INSERT form or relief. Id. the IJ found him removable under INA § 237(a)(2)(A)(iii) (aggravated felony conviction) pursuant to the Board’s decision Matter of Yanez-Garcia. The Supreme Court reversed. The Supreme Court held that drug possession convictions that are state felonies.] In Lopez.R. In unqualified terms. at *10. 2006 U. are not “aggravated felonies” under the INA. at *9-11. The motion also must be accompanied by the application for relief and all supporting documents. The IJ also found that the aggravated felony rendered Lopez ineligible for cancellation of removal pursuant to INA § 240A(a)(3). LEXIS 9442 at *11. Id.evidentiary hearing. ARGUMENT A. 390 (BIA 2002). Lopez’s conviction was a state felony.S. Id. Id. Lopez. at *24. only if it would be punishable as a felony under federal law. 23 I&N Dec. but would not be a felony under the federal Controlled Substances Act. the Court said.S. the Supreme Court concluded that a state drug possession offense is an aggravated felony. Nevertheless. IV.F. 2006 U. as defined by INA § 101(a)(43)(B). The BIA and Eighth Circuit affirmed the IJ’s findings.23(b)(3)]. Id. at 403. § [INSERT 1003. ” Id. attach application and supporting documents. See Executive Office for Immigration Review. Matter of Salazar. This request is consistent with the actions taken by the Department of Justice in the aftermath of INS v. the Department issued procedures for reopening cases for respondents who were wrongly denied the right to apply for section 212(c) relief. Cyr. Matter of Anselmo. The immigration courts and the BIA are bound by governing federal court precedents.] EXPLAIN as needed. 69 Fed. Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1. 289 (2001). Reg. is not an aggravated felony as defined in INA § 101(a)(43)(B) and does not render [INSERT him or her] ineligible for [INSERT form or relief]. [Discuss eligibility for relief.]] B. 2004. therefore. Like the petitioner in Lopez. 25. 1997. The Respondent’s conviction. the Respondent in this case was convicted of a state drug felony that would not be punishable as a felony under federal law. 235 (BIA 2002). ask court to reopen (and remand if appropriate) for a hearing on the application. e. 57826 . 20 I&N Dec. On September 28..S. 533 U. 223. Lopez undeniably establishes that the Respondent’s conviction is not an aggravated felony and does not render [INSERT him or her] ineligible for INSERT [form of relief]. See. St. [INSERT state statute citation– attach a copy as appendix. 31-32 (BIA 1989). at *16-17. 23 I&N Dec.g. Because the [INSERT BIA affirmed or immigration judge entered] a decision in conflict with the Supreme Court’s decision.not count. [INSERT the Board or the court] should reconsider and reopen this case. The [INSERT Court or BIA] Has Authority to Reconsider and Reopen this Case. ” 23 I&N Dec. in Matter of Muniz. e. 208 (BIA 2002) (declining to address moving party’s timeliness arguments and reconsidering the case on its own motion). 71. Further. 22 I&N Dec.23(b)(1)] to reconsider [INSERT if applicable: and reopen] this case. See. Even before the final regulation was issued. For example. at 208.2(a) or 1003. Matter of J-J-. 984 (BIA 1997). 23 I&N Dec. 22 I&N Dec.. thus nullifying the reason why Respondent was ineligible for relief . 23 I&N Dec. Despite the time limits for filing motions. 73 (BIA 1998) (statutory change in definition of “refugee” warranted sua sponte reopening). 976.44).R. at 207-08 (sua sponte reopening a case where Ninth Circuit interpreted meaning of crime of violence differently from BIA).F. 2004) (codified at 8 C.g.(Sept. the BIA and the court retain power to reopen or reconsider sua sponte in exceptional circumstances. 28. Matter of X-G-W-. the BIA exercised its sua sponte authority to reconsider a case “in view of the importance of the matter and the inconsistency between our prior decision and that of the Ninth Circuit.R. § 1003. A similar remedy is needed in this case. the Supreme Court reversed court of appeals and BIA decisions. Matter of Muniz. Here. 1132 1135-36 (BIA 1999) (declining to reopen or reconsider sua sponte where caselaw represented only “incremental development” of the law and respondent’s case did not turn on cited authority). 21 I&N Dec. the immigration courts and BIA were reopening cases under St. it is appropriate for the [INSERT immigration court or BIA] to exercise its sua sponte authority under 8 C. 207. Matter of G-D-. Cyr. See Matter of Muniz. The BIA has held that such exceptional circumstances exist where there has been a significant development in the law.F. § [INSERT 1003. under BIA caselaw. Dated: [INSERT date] Respectfully submitted.from removal. This is a significant legal development and an exceptional circumstance that warrant sua sponte reconsideration and reopening. IV. The [INSERT court or BIA] should grant the Respondent’s motion to reconsider and reopen proceedings for a hearing on Respondent’s application for [INSERT form of relief]. CONCLUSION The Supreme Court’s decision in Lopez is a significant change in the law that undermines the finding that Respondent is ineligible for [INSERT form of relief] and renders Respondent’s removal order unlawful. [INSERT name] Attorney for Petitioner .