670 F. App'x 446
9th Cir.2016Background
- Nicole Sadighi, a 43-year-old U.K. citizen born in Iran, appealed the Immigration Judge’s denial of asylum, withholding of removal, and CAT protection to the BIA.
- The BIA dismissed her appeal. Sadighi then filed a four‑paragraph motion for reconsideration with the BIA.
- The BIA denied the motion for reconsideration. It also sua sponte treated the same four‑paragraph filing as a motion to reopen and denied that as well.
- Sadighi timely petitioned for review in the Ninth Circuit. The court reviews denials of motions to reconsider and to reopen for abuse of discretion.
- The Ninth Circuit found no abuse of discretion in the denial of reconsideration because Sadighi did not cite authority showing legal or factual error as required by statute.
- The Ninth Circuit found the BIA abused its discretion by converting the filing to a motion to reopen without evidence or notice, thereby depriving Sadighi of her one permitted motion to reopen and remanded for the BIA to allow her time to file a properly supported motion to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying Sadighi’s motion for reconsideration | Sadighi argued the BIA erred in denying reconsideration of the IJ’s decision (implicit request that BIA correct an oversight) | BIA argued the motion failed to cite authority or show error as required by 8 U.S.C. § 1229a(c)(6)(C) | No abuse of discretion; motion to reconsider lacked required legal/factual support |
| Whether the BIA abused its discretion by sua sponte treating the motion for reconsideration as a motion to reopen without evidence or notice | Sadighi argued the BIA’s conversion deprived her of her one statutory motion to reopen and was improper because the filing lacked evidentiary support only for reconsideration purposes | BIA treated the filing as a motion to reopen and denied it for lack of affidavits/evidence under 8 C.F.R. § 1003.2(c) | BIA abused its discretion: misapplied its regulation and deprived Sadighi of notice and her single opportunity to file a motion to reopen; remand for opportunity to file a fully supported motion to reopen |
Key Cases Cited
- Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002) (standard of review for motions to reopen/reconsider: abuse of discretion)
- Itrurribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (distinguishes motions to reopen from motions to reconsider; reopening requires new evidence/change in circumstances)
- Chudshevid v. INS, 641 F.2d 780 (9th Cir. 1981) (motions to reopen and reconsider are distinct with different requirements)
- Martinez-Lopez v. Holder, 704 F.3d 169 (1st Cir. 2013) (recognition of BIA precedent changes and interplay with amended regulations)