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

(INA), 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 Courts recent decision in Lopez v. Gonzales, 549 U.S. ___, 2006 U.S. LEXIS 9442 (2006). 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). In this case, 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]. Lopez has made clear that Respondents conviction is not an aggravated felony and thus does not bar [INSERT him or her] for applying for relief. The Respondent thus asks the [INSERT court or BIA] to reconsider this case and reopen proceedings for a hearing on Respondents application for [INSERT form of relief]. II. RELEVANT PROCEDURAL HISTORY On [INSERT date], the Respondent was convicted of [INSERT offense name] under [INSERT state statute]. On [INSERT date], the [INSERT Immigration and Naturalization Service (INS) or Department of Homeland Security (DHS)] charged Respondent with removability under [INSERT charge(s) of inadmissibility/deportability]. The immigration judge sustained the charge. The immigration judge also found the Respondent ineligible for [INSERT form of relief], finding that Respondents drug conviction was an aggravated felony,

to wit, illicit trafficking in a controlled substance under INA 101(a)(43)(B). The immigration judge ordered the Respondent removed on [INSERT date]. [INSERT, if applicable: On [INSERT date], the BIA affirmed the IJs order of removal.] [INSERT, if applicable: The Circuit Court of Appeals upheld this decision on [INSERT date]]. See [INSERT case citation] and/or [EXPLAIN if another federal court has ruled on any aspect of the case.] [INSERT, if applicable: Respondent was removed from the United States on [INSERT date.]] The Supreme Court issued its 8-1 decision in Lopez on December 5, 2006. The Respondent filed this motion as soon as practicable following the Supreme Courts ruling. [INSERT explanation of delay in filing, if necessary.] III. 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, a change of law, or perhaps an argument or aspect of the case which was overlooked. Matter of Cerna, 20 I&N Dec. 399, 402 n.2 (BIA 1991). A motion to reconsider shall include an allegation of material factual or legal errors in the Boards decision that is supported by pertinent authority and if there has been a change in the law, a reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of the Boards decision is materially affected by the change. Matter of O-SG-, 24 I&N Dec. 56, 60 (BIA 2006). 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

evidentiary hearing. Matter of Cerna, 20 I&N Dec. at 403. 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. 8 C.F.R. [INSERT 1003.2(c)(1) or 1003.23(b)(3)]. The motion also must be accompanied by the application for relief and all supporting documents. Id. IV. ARGUMENT A. The Supreme Courts Decision Establishes that Respondent Was Not Convicted of Aggravated Felony and Is Not Barred From Applying for [INSERT form or relief.] In Lopez, the Supreme Court concluded that a state drug possession offense is an aggravated felony, as defined by INA 101(a)(43)(B), only if it would be punishable as a felony under federal law. 2006 U.S. LEXIS 9442 at *24. The petitioner in Lopez was a lawful permanent resident who pled guilty of aiding and abetting another persons possession of cocaine under South Dakota law. Id. at *9. Lopezs conviction was a state felony, but would not be a felony under the federal Controlled Substances Act. See id. at *9-11. Nevertheless, the IJ found him removable under INA 237(a)(2)(A)(iii) (aggravated felony conviction) pursuant to the Boards decision Matter of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002). Id. at *10. The IJ also found that the aggravated felony rendered Lopez ineligible for cancellation of removal pursuant to INA 240A(a)(3). Id. The BIA and Eighth Circuit affirmed the IJs findings. Id. The Supreme Court reversed. Lopez, 2006 U.S. LEXIS 9442 at *11. The Supreme Court held that drug possession convictions that are state felonies, but would not be punishable as felonies under federal law, are not aggravated felonies under the INA. Id. at *24. In unqualified terms, the Court said, Unless a state offense is punishable as a federal felony it does

not count. Id. at *16-17. Like the petitioner in Lopez, the Respondent in this case was convicted of a state drug felony that would not be punishable as a felony under federal law. [INSERT state statute citation attach a copy as appendix.] EXPLAIN as needed. The Respondents conviction, therefore, 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, attach application and supporting documents, ask court to reopen (and remand if appropriate) for a hearing on the application.]] B. The [INSERT Court or BIA] Has Authority to Reconsider and Reopen this Case. The immigration courts and the BIA are bound by governing federal court precedents. See, e.g., Matter of Salazar, 23 I&N Dec. 223, 235 (BIA 2002); Matter of Anselmo, 20 I&N Dec. 25, 31-32 (BIA 1989). Lopez undeniably establishes that the Respondents conviction is not an aggravated felony and does not render [INSERT him or her] ineligible for INSERT [form of relief]. Because the [INSERT BIA affirmed or immigration judge entered] a decision in conflict with the Supreme Courts decision, [INSERT the Board or the court] should reconsider and reopen this case. This request is consistent with the actions taken by the Department of Justice in the aftermath of INS v. St. Cyr, 533 U.S. 289 (2001). On September 28, 2004, the Department issued procedures for reopening cases for respondents who were wrongly denied the right to apply for section 212(c) relief. See Executive Office for Immigration Review, Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57826

(Sept. 28, 2004) (codified at 8 C.F.R. 1003.44). Even before the final regulation was issued, the immigration courts and BIA were reopening cases under St. Cyr. A similar remedy is needed in this case. Further, under BIA caselaw, it is appropriate for the [INSERT immigration court or BIA] to exercise its sua sponte authority under 8 C.F.R. [INSERT 1003.2(a) or 1003.23(b)(1)] to reconsider [INSERT if applicable: and reopen] this case. See Matter of Muniz, 23 I&N Dec. 207, 208 (BIA 2002) (declining to address moving partys timeliness arguments and reconsidering the case on its own motion). Despite the time limits for filing motions, the BIA and the court retain power to reopen or reconsider sua sponte in exceptional circumstances. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). The BIA has held that such exceptional circumstances exist where there has been a significant development in the law. See, e.g., Matter of Muniz, 23 I&N Dec. at 207-08 (sua sponte reopening a case where Ninth Circuit interpreted meaning of crime of violence differently from BIA); Matter of G-D-, 22 I&N Dec. 1132 1135-36 (BIA 1999) (declining to reopen or reconsider sua sponte where caselaw represented only incremental development of the law and respondents case did not turn on cited authority); Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998) (statutory change in definition of refugee warranted sua sponte reopening). For example, in Matter of Muniz, 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. 23 I&N Dec. at 208. Here, the Supreme Court reversed court of appeals and BIA decisions, thus nullifying the reason why Respondent was ineligible for relief

from removal. This is a significant legal development and an exceptional circumstance that warrant sua sponte reconsideration and reopening. IV. CONCLUSION The Supreme Courts 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 Respondents removal order unlawful. The [INSERT court or BIA] should grant the Respondents motion to reconsider and reopen proceedings for a hearing on Respondents application for [INSERT form of relief].

Dated: [INSERT date]

Respectfully submitted,

[INSERT name] Attorney for Petitioner