The U.S. Court of Appeals for the Fifth Circuit held that a statutory provision barring motions to reopen overrides a statutory provision allowing an IJ to reopen proceedings sua sponte. Gregoire v. Holder, 2011 WL 754873, No. 09-60254, slip op. (March 4, 2011) (Reavley, Jolly, and Stewart, J.). Judge Jolly wrote the panel’s decision.
INA § 240(b)(5)(C)(i) provides that an in absentia order of removal may be removed “upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances.” Meanwhile, “[a]n Immigration Judge may upon his or her own motion at any time…reopen or reconsider any case in which he or she has made a decision.” 8 C.F.R. § 1003.23(b)(1). Combined, § 240(b)(5)(C)(i) imposes time and content limitations on motions to reopen while § 1003.23(b)(1) allows an IJ broad authority to reopen sua sponte.
The BIA concluded that the IJ improperly reopened proceedings sua sponte. The Fifth Circuit turned to its post-departure bar decisions in which it has held that a specific statutory provision prohibiting reopening after physical departure from the USA trumped a general provision granting sua sponte authority. See Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003).
Like those cases, “[i]n this case, the BIA similarly held that the specific statutory requirements for rescinding an order entered in absentia trump the general authority granted to an IJ.”