7th Circuit interprets "questions of law" for reopening cases, post-Kucana

Seventh Circuit Overrules Singh , Holds that 8 USCA § 1252(a)(2)(B)(ii) Bars Review of Decisions Regarding Motions to Reopen

Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th Cir. July 7, 2008)

In Singh v. Gonzales, 404 F.3d 1024 (7th Cir. 2005), the Seventh Circuit held that the denial by the Board of Immigration Appeals (BIA) of an alien's motion to reopen removal proceedings did not fall within the jurisdiction-stripping provision for discretionary decisions of the Attorney General, INA § 242(a)(2)(B)(ii) [8 USCA § 1252(a)(2)(B)(ii)], because “conspicuously absent” from the statute providing for motions to reopen, INA § 240(c)(6) [8 USCA § 1229a(c)(6)], is any specific language entrusting the decision to the discretion of the Attorney General. Subsequently, in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), the Seventh Circuit held that under 8 USCA § 1252(a)(2)(B)(ii), it lacked jurisdiction to review a BIA decision affirming the denial of an alien's request for a continuance of his removal proceedings because such a motion is a discretionary decision the authority for which is committed to the immigration judge (IJ) not only expressly by regulation (8 CFR § 1003.29), but implicitly as part of the IJ's plenary authority under 8 USCA § 1229a to control the course of removal proceedings. [FN1]

In Kucana v. Mukasey, 2008 WL 2639039 (7th Cir. July 7, 2008), a panel of the Seventh Circuit, in an opinion written by Chief Judge Frank H. Easterbrook, held that 8 USCA § 1252(a)(2)(B)(ii) deprives the court of jurisdiction to review a BIA decision denying the alien's motion to reopen, and that Singh must be overruled to the extent it holds otherwise.

As background, 8 USCA § 1252(a)(2)(B)(i) provides in part as follows:

except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section 1182(h) [regarding waiver of certain grounds of inadmissibility], 1182(i) [regarding waiver of inadmissibility based on fraud or willful misrepresentation of a material fact], 1229b [regarding cancellation of removal], 1229c [regarding voluntary departure], or 1255 [regarding adjustment of status of nonimmigrant to that of person admitted for permanent residence] of this title.

8 USCA § 1252(a)(2)(B)(ii) provides in part as follows: except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter [Subchapter II, Immigration] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [regarding applications for asylum].

8 USCA § 1252(a)(2)(D) provides as follows: Nothing in subparagraph (B) ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 USCA § 1252(b)(6) provides: When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.

Chief Judge Easterbrook said:

Recently this circuit addressed the question--on which other courts of appeals are divided--whether § 1252(a)(2)(B)(ii) applies when the agency's discretion is specified by a regulation rather than a statute. After the parties filed their briefs in this case, we held in Ali ... that § 1252(a)(2)(B)(ii) applies to discretionary decisions under regulations that are based on and implement the Immigration and Nationality Act. The discretionary decision in Ali was whether to grant an alien's request for a continuance of a hearing; here the discretionary decision is whether to reopen the proceeding and hold a new hearing. Regulations specify that both decisions are discretionary; both regulations draw their force from provisions in the Act allowing immigration officials to govern their own proceedings. See 8 U.S.C. § 1229a(c)(7) (authority for reopening by Board). It follows that they are equally subject to § 1252(a)(2)(B)(ii).

The panel's view in Singh was that consolidation of proceedings concerning direct and reopening decisions would be pointless, if orders denying reopening never were subject to judicial review. That was true when the panel issued its opinion (April 15, 2005) but is true no longer. On May 11, 2005, the Real ID Act, Pub.L. 109-13 Div. B Tit. I, took effect. Today decisions denying reopening are within our jurisdiction to the extent provided by § 1252(a)(2)(D)... Because discretionary decisions now may be reviewed when they entail “constitutional claims or questions of law”, there's nothing incongruous about the consolidation rule in § 1252(b)(6). Applying § 1252(a)(2)(B)(ii) to orders denying motions to reopen will not make any part of the statute unnecessary.

The Real ID Act not only changed the relation among statutory subsections but also alleviated the principal consideration that had led the judiciary to confine clauses such as § 1252(a)(2)(B)(ii) to the least scope they had to have. Judges were concerned that an elimination of all review would permit the agency to violate statutes and the Constitution at will. The enactment of § 1252(a)(2)(D) eliminates that reason for giving § 1252(a)(2)(B) a narrow reading--and, as the other arguments advanced in Singh also have been overtaken by events, we conclude that Singh must be overruled to the extent it holds § 1252(a)(2)(B)(ii) inapplicable to discretionary reopening decisions.

Chief Judge Easterbrook's opinion was circulated under Circuit Rule 40(e) to all 15 active judges. A majority of them did not favor a hearing en banc. However, five judges (Joel M. Flaum, Kenneth F. Ripple, Ilana Diamond Rovner, Diane P. Wood, and Ann Claire Williams) voted in favor of a hearing en banc.

Judge Ripple, concurring, dubitante: [FN2]

Judge Ripple agreed with the principal opinion that the disposition of the present case appears to be controlled by the court's holding in Ali, which he said “operates as a de facto overruling of our decision in Singh...” He added:

Although I believe that we are bound by the holding in Ali and that the principal opinion represents a logical extension of that holding, I write separately because I continue to be concerned by the breadth of Ali's holding. In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision, discretionary in nature, which “derives from 8 U.S.C. § 1229a,” which, in turn, “confers upon immigration judges the plenary authority to conduct removal proceedings.” ... We further observed that “[t]he regulation regarding continuances simply implements the immigration judge's statutory authority to control the course of removal proceedings.” .... Here, however, the rationale of Ali is being applied beyond the realm of procedural rulings; it is being used to deny aliens review of substantive decisions of the Board of Immigration Appeals that are based on a mistake or misunderstanding of the factual basis of the claim--decisions that the Supreme Court has analogized to motions under Federal Rule of Civil Procedure 60(b) [regarding grounds for relief from a final judgment, order, or proceeding]. ... Furthermore, although the present case involves only a motion to reopen, Ali's rationale would appear to apply equally to motions to reconsider--the basis for which must be a mistake or misapprehension of law. ... In short, the rationale of Ali, taken to its logical conclusion, deprives this court of jurisdiction to review the BIA's mistakes of fact and law made during the course of deciding whether an alien should be removed from this country.

Although the result today appears to be dictated by circuit precedent, I respectfully suggest that, had Congress intended to deprive this court of jurisdiction of specific substantive decisions, it would have done so explicitly, as it did in 8 U.S.C. § 1252(a)(2)(B)(i). As Ali spreads its dominion to substantive fields, it is turning this court into a virtual council of revision with respect to settled federal law. Before taking these steps, we should revisit the holding in Ali and determine whether we should chart a course that more closely adheres to the statutory language chosen and enacted by Congress.

Judge Richard D. Cudahy, dissenting:

In Ali ... we adopted a view, which (as that opinion acknowledged) is in a minority one among the circuits, with respect to our jurisdiction over appeals from denials of continuances. Six of our sister courts had concluded that 8 U.S.C. § 1252(a)(2)(B)(ii) did not preclude federal appellate courts from reviewing orders denying such motions. Only the Eighth and Tenth Circuits had held that § 1252(a)(2)(B)(ii) precludes federal courts of appeals from reviewing an immigration judge's denial of a continuance. ... Yet even these courts continue to exercise jurisdiction over motions to reopen. ... The principal opinion would cause us to become a minority within the minority, giving the executive branch the authority to insulate its decisions from judicial review where there is no clear indication in the statute that Congress intended to strip us of our jurisdiction. Our isolated posture in this respect may give us pause here.

Ultimately, the principal opinion rests its rejection of Singh upon the focus of the Real ID Act upon judicial reviewability of “constitutional claims or questions of law.” According to the principal opinion this eliminates the need for a narrow reading of jurisdiction-stripping provisions and meets the judiciary's principal concern in this area. I think this exercise in judicial psychoanalysis must yield to broader principles favoring judicial review of administrative decisions.

As the concurrence points out, the rationale of the principal opinion would bar our review of motions to reconsider, which are based on errors of law and fact. Absent “ ‘specific language or specific legislative history that is a reliable indicator of congressional intent,’ or a specific congressional intent to preclude judicial review that is ‘fairly discernible in the detail of the legislative scheme,’ ” Traynor, 485 U.S. at 542, 108 S.Ct. 1372, 99 L.Ed.2d 618 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 673, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)), I am reluctant to broaden the immunity from review of an administrative process not necessarily renowned for its reliability.

Judge Ripple, with whom Judges Rovner, Wood, and Williams join, dissenting from the denial of a rehearing en banc:

This case presents an important issue with respect to the scope of this court's holding in Ali ... In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision that is discretionary in nature. ... Here, however, the rationale of Ali is being applied beyond the realm of such a procedural ruling; it is being used to deny aliens review of a motion to reopen, a decision of the Board of Immigration Appeals that is based on a mistake or misunderstanding of the factual basis of the claim. This expansion into the realm of outcome determinative decisions takes us a long way from the statutory language chosen and enacted by Congress. See 8 U.S.C. § 1252(a)(2)(B)(i).

Applying Ali to deny aliens review of the decision whether to reopen crystalizes the importance of revisiting the breadth of that holding: The Supreme Court has analogized motions to reopen to motions under the Federal Rule of Civil Procedure 60(b) .... Indeed, since the panel's consideration of this case, the Supreme Court has characterized motions to reopen as an “important safeguard” designed to “ensure a proper and lawful disposition.” Dada v. Mukasey, No. 06-1181, --- S.Ct. ----, 2008 WL 2404066 at *15, 16 (June 16, 2008). [FN3] This new holding of the Supreme Court should make us pause, take a deep breath and consider anew whether we really want to take the Circuit down a path so contrary to the manifest intent of Congress and to the Supreme Court's understanding of that intent. If we take such a course, our decision will no doubt warrant close scrutiny by the Supreme Court.

Michael R. Lang, Chicago, Illinois, for the petitioner. Kathryn Deangelis, Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for the respondent.

[FN1]. Ali is discussed in 84 Interpreter Releases 2265 (Oct. 1, 2007).

[FN2]. Black's Law Dictionary (8th ed. 2004) defines “dubitante” as indicating that the judge doubts a legal point but is unwilling to state that it is wrong.

[FN3]. Dada is discussed in 85 Interpreter Releases 1789 (June 23, 2008) and 85 Interpreter Releases 1878 (July 7, 2008).

USCIS FOIA Request Status Check-Freedom of Information Act

USCIS Launches Online Service to Check Status of FOIA Requests, June 30, 2008
FOIA Request Status Check

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA).

Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a ‘pending’ or ‘processed’ response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.

Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time).

As USCIS receives more than 110,000 requests annually for access to immigration records, the agency continues to improve its FOIA procedures and enhance processing times. For example, last year USCIS launched a new ‘Notice to Appear’ track that provides accelerated access of a large portion of FOIA requests from individuals, or their representatives, who have been notified to appear before an immigration court. That new track provides those customers quicker access to their Alien-File (‘A’-File) when it is requested through the FOIA process.

For more information on USCIS’ FOIA program, visit www.uscis.gov or contact the National Customer Service Center at (800) 375-5283 (TTY 800-767-1833).

FOIA Request Status Check

Naturalization Interview Process Changes

Memorandum

TO: Field Leadership

FROM: Don Neufeld /s/ Acting Associate Director, Domestic Operations

DATE: April 25, 2008

U.S. Citizenship and Immigration Services Office of Domestic Operations Washington, DC 20529 35.2HQ 70/

SUBJECT: Naturalization Interview Process Changes

Introduction: In response to the surge of applications received last summer, USCIS has developed a plan to address the increased naturalization workload by hiring and training several hundred adjudicators over the next several months. While we welcome this much needed infusion of new staff, it is important to recognize and plan for the challenges associated with such rapid growth. That is one reason why we have instructed managers to ensure greater oversight over new staff in general, and specifically with respect to NQP, quality decision review and decisions in general.

How we utilize new and experienced staff as we grow is particularly crucial to maintaining quality. With respect to naturalization, while every aspect of the process is important, we also have the opportunity to use the steps of the process as a way to introduce new officers and staff to the process, initially using them in less complex decision-making. This also lets us focus experienced adjudicators on the final determination of eligibility.

The purpose of this memorandum is to improve the alignment of essential naturalization activities with the skill sets of our workforce. The changes identified hereafter focus on assigning work to Trainee Adjudications Officers and other staff that is both grade appropriate and commensurate with their abilities. This work will assist more senior adjudicating officers in identifying issues that require further examination, and is consistent with our efforts to maintain quality levels as we grow significantly this year by adding a large number of newly trained staff.

Further, this memorandum provides clarification and guidance on various procedural steps associated with conducting a naturalization interview.

Pre-examination check-in process

As applicants arrive at the Field Office for their naturalization examination, consideration should be given to tasks that can be done prior to the applicant’s formal examination; (i.e., signing the photo and distribution of any related informational materials).

In this regard, as applicants arrive, offices are encouraged to provide the applicants an opportunity to review the N-400 Interview Preparation Notice (included). This notice is provided as an advisory to help prepare the applicant to inform the interviewing officer of any events that may have occurred after submitting their N-400 and which may have bearing on the adjudication.

Offices are also encouraged to verify certificate preparation information with the applicant prior to the interview. Offices can utilize the N-400 Interview Preparation Worksheet B (included) for this purpose. A USCIS representative should complete the shaded portion of Worksheet B with the applicant to verify the biographic information that will appear on the naturalization certificate. 1 CLAIMS 4 should be updated at this point with the biographic information.

Effective immediately, applicants are to sign their photos using their normal signature. Normal signature means signature in English unless exempt the English language requirement of 8 CFR 312. Signatures need not be legible and names may be shortened consistent with the applicant’s normal signature. Applicants who are seeking a change of name at the time of naturalization should not sign their photos until after the name change is granted.

Naturalization Testing

When required, USCIS will assess the applicant’s ability to read, write, and speak words in ordinary usage in the English language, and assess whether the applicant has a sufficient knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. USCIS will evaluate the history and civics portion through a naturalization test. USCIS also evaluates English language ability through administration of the naturalization test and the full oral interview.

Once the pre-examination check-in process has been completed, offices are encouraged to consider testing the applicants’ knowledge of American government and history (civics), and their ability to read and write English, separately prior to the interview. This procedure has been successfully utilized in the past. It has provided a means of maintaining the quality of N-400 interviews because the interviewing officer is able to focus on the other eligibility issues. Interviewing officers will continue to determine the applicant’s ability to speak and understand English through the oral interview process.

The only difference from current practice is the sequence – that the English and civics tests can be administered before the interview following the pre-examination check-in process, as opposed to during the actual interview. The tests must be administered by designated and trained personnel. The test questions, test administration, reasonable accommodation requirements and standards for passing remain unchanged.

1 The name, sequence of the name and date of birth will continue to be verified by the interviewing officer.


If an applicant passes the civics test and is able to read and write words in ordinary usage in the English language, the record should be so noted (using the attached Worksheet B), which when executed becomes an addendum to the NQP worksheet. If the applicant passes only the English language portion or only the civics portion of the tests, the record should be so noted (using the attached Worksheet B). The completed Worksheet B should be maintained in the A-file under the N-400 application. This information should also be captured in CLAIMS 4. The Naturalization Quality Procedures (NQP) worksheet (Form N-650) should be initialed and dated by the interviewing officer as appropriate. The interviewing officer will note “See Worksheet B” in the “Remarks” section of the N-650. If the applicant fails either portion of this test administered prior to the interview, the interview should be conducted and the applicant should then be scheduled to be re-tested as required. Wherever possible, scheduling of a follow-up English literacy and civics test should be done at the time of the current examination so that applicants know when they will have their second and last opportunity to take the test.

Applicants claiming exemption from the English literacy requirements may be tested on the civics portion in their native language under these new procedures provided they meet the age and residency requirements. The testing procedures above do not apply to applicants claiming exemption from the English and Civics requirements due to medical disability; for these applicants testing will remain a function of the interviewing officer.

Interview

As directed in Chapter 74 of the Adjudicator’s Field Manual, questioning of an applicant must cover all requirements for naturalization. Questions during the examination should build on the results of the preliminary analysis, such as background check results. If the results of the background checks or other preliminary analysis raise questions of eligibility, or the applicant’s response to questions on the N-400 brings eligibility into question, the officer should focus attention on those issues. Additionally, officers are required to ask each applicant the questions contained in Part 10 H of the N-400. Supervisors should regularly monitor and observe officers to ensure that officers are asking essential or pertinent questions relating to the benefit sought.

Post-Examination process

When an officer has concluded the interview, the case file may be returned to designated non- officer personnel for post examination processing. Post examination processing may include any duties previously performed by the examining official following an interview and include: scheduling of a follow-up appointment for English literacy and/or civics testing; photo and/or certificate signing; CLAIMS 4 decisional updating; and oath ceremony scheduling.

Designations The actual examination of naturalization applicants and the approval of naturalization applications must be conducted by a designated examiner. Immigration regulations (See 8 CFR 332.1(a)) designate immigration examiners,3 and provide that other officers of the Service may be so designated provided that each officer so designated has received appropriate training.4 Through this memorandum we are designating the USCIS officer corps, including Adjudications Officers, Fraud Detection and National Security Officers, Asylum Officers, Application Support Center Managers, Application Adjudicators and Immigration Information Officers,5 for the purpose of administering the civics test and the English language reading and writing proficiency test. The grade level of these officer corps positions are all at or above the range of grades of what was an Immigration Examiner. For example, when an applicant appears for the naturalization interview, offices should consider having an Information Officer, Trainee Adjudications Officer, Applications Adjudicator or ASC Manager administer the reading and writing part of the English test and the civics test.

Through this memorandum we are designating the positions of Adjudications Officers and Application Adjudicators for the purpose of the interview and adjudication of naturalization applications, and are further designating Asylum Officers for this purpose when acting in the role of an Adjudications Officer. In order for officers falling within the aforementioned designated positions to conduct N-400 interviews or adjudicate N-400 applications, they must have completed mandatory training for new officers. This would include BASIC, IOBTC, or OTPIOBTC.

Conclusion

We recognize that given office configurations and currently available personnel, not every office will be able to immediately implement every step described above in advance of the actual interview and examination. However, offices are encouraged to implement these where possible, and to work closely with district and regional management in that respect. As steps are implemented, they must conform to the stipulations of this memorandum. Implementation is designed to increase the quality of the process by focusing the interview on the determination of eligibility. Implementation will also allow for the introduction of newer staff into less complex elements of the process and focus more experienced officers on determining naturalization eligibility.

While this memorandum authorizes specific process and sequence changes, the NQP requirements for quality control and process tracking must continue to be met.

While key areas of the naturalization process have been identified for improvement, there are still other processes that may be improved. Field Offices are encouraged to propose process improvements and forward suggestions and/or ideas through their designated chains of command to the Regional Directors for approval prior to implementation.

3. The position of Immigration Examiner was a discrete type of position within the Immigration and Naturalization Service. Within INS the position existed at the GS-5 through GS-11 grades, with a subsequent change in the journeyman grade to GS-12. The position of Immigration Examiner was subsequently converted to the Adjudications Officer position of today, which similarly exists at the GS-5 through GS-12 grades. 4 Testing standards and procedures are contained in Chapter 74 of the Adjudicators Field Manual. Field Offices must provide instruction in test administration requirements prior to designating an employee for this purpose. 5 Asylum Officers and Fraud Detection and National Security Officers would perform these duties on overtime.

Questions regarding this memorandum should be directed through appropriate channels to Robert Fenwick, Acting Branch Chief, HQ Office of Field Operations.


DISTRIBUTION LIST: Field Leadership

ATTACHMENTS: N-400 Interview Preparation Notice N-400 Interview Preparation Worksheet B
Download Memo

Voluntary Departure, conclusion of removal proceedings

Supreme Court Holds that Alien Must Be Allowed to Withdraw Request for Voluntary Departure but Voluntary Departure Is Not Automatically Tolled
Dada v. Mukasey, 128 S. Ct. 2307 (U.S. June 16, 2008)

Petitioner, a native and citizen of Nigeria, who had requested and been granted voluntary departure, petitioned for review of Board of Immigration Appeals' (BIA) denial of petitioner's request to withdraw voluntary departure. The Court of Appeals for the Fifth Circuit, 207 Fed.Appx. 425, affirmed BIA's denial of request to withdraw voluntary departure.

Holding: The Supreme Court, Justice Kennedy, held that to safeguard the right to pursue a motion to reopen for voluntary departure recipients, petitioner had to be permitted an opportunity to withdraw a motion for voluntary departure, provided the request was made before the departure period expired. Reversed and remanded.

Justice Scalia, with whom Chief Justice Roberts and Justice Thomas joined, dissented and filed opinion.

Justice Alito dissented and filed opinion.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. 8 U.S.C.S. § 1229a(c)(7). The Act also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. 8 U.S.C.S. § 1229c(b)(2). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. 8 U.S.C.S. § 1229c(d)(1). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. 8 C.F.R. § 1003.2(d) (2007).

Voluntary departure is a discretionary form of relief that allows certain favored aliens -- either before the conclusion of removal proceedings or after being found deportable -- to leave the country willingly.

When voluntary departure is requested at the conclusion of removal proceedings, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides a voluntary departure period of not more than 60 days. 8 U.S.C.S. § 1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. 8 U.S.C.S. § 1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for § 1229c(b) and § 1229c(a) departures, respectively. 8 C.F.R. § 1240.26(f) (2007).

The voluntary departure period typically does not begin to run until immigration administrative appeals are concluded. 8 U.S.C.S. § 1101(47)(B). 8 U.S.C.S. § 1229c(b)(1) provides that the Attorney General may permit voluntary departure at the conclusion of removal proceedings.

An alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. 8 U.S.C.S. § 1182(a)(9)(A)(i), (ii). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions -- although he or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, § 1182(a)(9)(B)(i).

A motion to reopen is a form of procedural relief that asks the Board of Immigration Appeals to change its decision in light of newly discovered evidence or a change in circumstances since the hearing. Like voluntary departure, reopening is a judicial creation later codified by federal statute. The reopening of a case by the immigration authorities for the introduction of further evidence is treated as a matter for the exercise of their discretion; where the alien was given a full opportunity to testify and to present all witnesses and documentary evidence at the original hearing, judicial interference has been deemed unwarranted.

To safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before the departure period expires; as a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure, or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion. Immigration and Nationality Act, §§ 240(c)(7), 240B(b), (d)(1), 8 U.S.C.A. §§ 1229a(c)(7), 1229c(b), (d)(1).

"The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that--

"(A) the alien has been physically present in the United States for a period of at least one year im- mediately preceding the date the notice to appear was served under section 1229(a) of this title;

"(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;

"(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and

"(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. § 1229c(b)(1).