NIJC - 2nd Cir says it has jurisdiction to review denial of motion to reopen, but upholds denial of motion

2nd Cir says it has jurisdiction to review denial of motion to reopen, but upholds denial of motion

Friday, 25 July 2008

Singh v. Mukasey (2nd Cir. 07/25/08)

CALABRESI, Straub, B.D. Parker

Where petitioner had filed a motion to reopen and remand with the BIA, in order for him to be able to apply for an extreme hardship waiver under INA 216A, the court held that it had jurisdiction to review the Board's denial of this motion for abuse of discretion and that this appeal was not insulated from appellate review simply by being labeled "discretionary."

However, in reviewing the Board's denial of the motion to remand, the court concluded that the Board had not abused its discretion. The Board's interpretation of the regulation - that the extreme hardship period was only the period that the alien was admitted for permanent residence on a conditional basis - was permissible, and the Board was therefore not required to consider evidence following the end of this period (including his second wife's naturalization and children's birth certificates). Absent this evidence, the Board did not abuse its discretion in determining that petitioner had failed to present previously unavailable material evidence such that a motion to remand was warranted.

Read opinion here.

Atty for petitioner: Alan Michael Strauss

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