Shah v. Holder

Bd. did not err in denying alien’s motion to reconsider 2005 removal order that was based on alien’s 1990 conviction for aggravated criminal sexual assault of ten-year old girl. Instant motion was untimely in that alien waited more than six years after instant removal order to file motion to reconsider, and alien could not otherwise challenge Bd.’s decision not to act on said motion sua sponte. Moreover, while alien argued in motion to reconsider that he should have been granted waiver of removal under section 212(c)(3) of INA, 8 USC section 212(c)(3), alien should have, but did not, raise instant issue in any judicial review of 2005 removal order, where Bd. at that time determined that nature of alien’s conviction precluded any waiver under section 212(c)(3). Also, while alien further argued that 2011 decision in Judulang, 132 S.Ct. 476, required that Bd. reopen proceedings based on Bd.’s erroneous belief that alien was not eligible for 212(c)(3) waiver, Bd. was not required to reopen instant closed case in order to apply Judulang’s holding.