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Motions To Reopen Based On Change Of Circumstances And New Evidence

The United States Supreme Court reversed a Board of Immigration Appeal and held that a Motion to Reopen allows the Board to change a decision for newly discovered evidence or change in circumstances. The Government had argued that the acceptance of voluntary departure was a surrender by an alien of his right to seek a reopening. The Court held that there is no statutory language that would make a motion to Reopen unavailable for newly discovered evidence or changed circumstances. Otherwise in accepting voluntary departure the possibility of applying for a reopening becomes a nullity. As long as a Motion is made prior to the expiration of voluntary deportation, the alien may be permitted to withdraw unilaterally a voluntary deportation request and then make a motion to reopen because of changed circumstances.


The alien came to the U.S. in April 1998 on a B-2 visitor’s visa and overstayed. In 1999 he married a U.S. citizen who filed an alien relative petition for him. This was denied for failure to supply documentary evidence. An immigration judge denied a request for a stay and found the alien deportable. The judge granted voluntary deportation. The Board of Immigration Appeals affirmed the judge’s decision and ordered the alien to depart within 30 days.

Two days before the expiration of the 30 days, the alien filed to withdraw his petition for voluntary deportation and he simultaneously appealed to the Board to reopen the deportation proceedings, contending that there was a change of circumstances. He provided evidence to show he had a bona fide marriage with a U.S. citizen. He asked that the voluntary deportation period be extended until the alien relative petition was adjudicated. Two months later after the voluntary departure period had expired the Board denied the motion to reopen because the alien had overstayed his voluntary departure period. The Court of Appeals for the Fifth Circuit affirmed the Boards decision. The Supreme Court of Appeals reversed this decision.

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