2d Circuit Notes Split Re Whether a Petitioner May File a Subsequent Motion to Reopen to Cure a Lack of Notice

Per Chhetry v. U.S. Dept. of Justice, 490 F.3d 196 (2d Cir. Jun 20, 2007) (NO. 06-3416-AG):

There is, however, a circuit split as to whether a petitioner's ability to file a subsequent motion to reopen cures a lack of notice. The Fifth, Seventh, and D.C. Circuits have held that, for a petitioner on direct appeal from a final order of removal, the availability of a motion to reopen serves as a sufficient "mechanism to rebut officially noticed facts" because petitioners can use such a motion to present the BIA with "evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case," and, if the BIA refuses the motion, petitioners can appeal. Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968-69; Gutierrez-Rogue, 954 F.2d at 773. The Ninth and Tenth Circuits, on the other hand, have held in similar cases that the availability of a motion to reopen is an inadequate substitute for a full opportunity to rebut administratively noticed facts because, inter alia, the discretionary nature of motions to reopen does not guarantee a petitioner an effective ability to respond to previously-noticed facts, and petitioners are not guaranteed a stay of deportation while awaiting a decision on reopening. See Castillo-Villagra, 972 F.2d at 1030; Gomez-Vigil v. INS, 990 F.2d 1111, 1124 (9th Cir.1993) (Fletcher, J., concurring); de la Llana-Castellon, 16 F.3d at 1100.

Like the Ninth and Tenth Circuits, we doubt whether the protection afforded by the availability of a motion to reopen is enough for petitioners on direct appeal from final orders of removal. However, we need not decide this broader question because Chhetry appeals from the denial of a motion to reopen; he does not appeal from the BIA's final order of removal. Thus, not only would Chhetry have to surmount the usual hurdles attendant upon the filing of motions to reopen, but any subsequent motion to reopen might also be number-barred. See 8 C.F.R. §§ 1003.2(c)(2), (c)(3). We therefore agree with the First Circuit that when "the Board intends to take official notice in deciding a motion to reopen or reconsider it would be absurd to force an applicant to file a second motion to respond to the newly noticed facts. A multiplicity of motions for rehearing in this context would have two undesirable effects: dilution of the applicant's procedural rights and concentration of the incentive to prolong litigation." Gebremichael v. INS, 10 F.3d 28, 39 (1st Cir.1993) (emphasis omitted).