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Unpub. BIA Exceptional Circumstances Sua Sponte Reopening Victory

September 23, 2015 (1 min read)

Raed Gonzalez writes: "This client was ordered removed in absentia in 2001.  In 2014, a lawyer filed a motion to reopen asserting lack of notice.  The lawyer filed a patently deficient one-paragraph motion to reopen.  When this motion was denied, we filed an appeal of the denial of the motion to reopen (basically asking for a remand) and then a second motion to reopen based on ineffective assistance of counsel.  The BIA denied our motion to reopen as time barred and we appealed to the Fifth Circuit.  Mata v Lynch was pending at the time, and when the decision came down, the Fifth Circuit remanded for BIA to reconsider based on Mata.  The BIA reversed itself. The BIA found that the Supremes did indicate in Mata that that it might be improper to treat untimely or number-barred motions solely as requests to reopen sua sponte, and decided to reexamine the claim on remand.  Specifically, the BIA found that the client was prejudiced because his former counsel failed to argue that he would have shown up to court had he received notice of the proceedings because at the time (in 2001) he was a minor and an orphan and would have qualified for SIJ status.  The BIA found equitable tolling for the Lozada motion, and reaffirmed no time limits on motions to reopen because of lack of notice." - Matter of X-, Sept. 17, 2015.