Dela Cruz v. Mukasey , 532 F.3d 946 ( 2008 )

GRABER, Circuit Judge,

with whom TASHIMA, Circuit Judge, and TIMLIN, District Judge, join,¹

concurring:

I concur in our per curiam opinion. As a matter of law, the filing of a petition for review in this court does not extend the time period during which an alien may file a motion to reopen with the BIA. I write separately to point out that the BIA may reopen a proceeding, sua sponte, at any time. 8 C.F.R. § 1003.2(a). I encourage the BIA to consider whether this case warrants a discretionary exercise of that authority.

Petitioners are in their 50s. All three of their children, and their children’s families, legally reside in the United States. For more than 20 years, Petitioners have been productive members of society: They have never been arrested or charged with a crime; they have never been on welfare; they have successfully raised three children; and they have held full-time jobs and paid taxes. In fact, the government agrees with the immigration judge that Petitioners “are extremely deserving people for a favorable exercise of discretion.”

The BIA issued its decision just six weeks before Petitioners’ daughter turned 21 years old and was able to petition for adjustment of status for her parents. That petition was provisionally granted. If the BIA had granted Petitioners’ motion to reopen (or if it had issued its original decision later), Petitioners likely would have been able to avoid removal. As it is, upon our denial of the petitions for review, the stay of removal will lift automatically, and the government will be free to remove Petitioners, who then would be ineligible for reentry for several years. In the circumstances, as the immigration judge put it, Petitioners “are extremely deserving people for a favorable exercise of discretion.”