In Chi v. Holder, No. 09-2583, the First Circuit dealt with a Chinese native's petition for review of the BIA's denial of a motion to reopen to allow him to seek an adjustment of his immigration status.
As stated in the decision: "Chi's abuse of discretion claim turns on his belief that the expiration of the ten-year bar for status adjustment presented "new and material evidence" that the BIA totally ignored. Chi is mistaken. Assuming for argument's sake that the ban's ending was material and not previously available "evidence," the record reveals that the BIA explicitly factored that "evidence" into its decision."
Thus, in denying the petition, the court held that the BIA acted well within its discretion in denying the motion. Furthermore, the court held that there is no basis for a due process claim and rejected petitioner's claim that the government is equitably estopped from removing him because it failed to remove him in 1998, as well as his request that the court redraft the statutory and regulatory scheme.
- Full text of Chi v. Holder