Rosalia Rios Rey v. Loretta E. Lynch

MEMORANDUM

1. Motions to reopen must include evidence that “was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2 (c)(1). The danger that one of the defendants in the 1997 trial would take revenge on Rios Rey for her role as a government witness was just as high during her first removal proceeding as it is now. Yet Rios Rey never mentioned this concern during her prior removal proceedings. Because Rios Rey failed to present new evidence that couldn’t have been presented “at [her] former hearing,” the Board of Immigration Appeals properly denied her motion to reopen. § 1003.2(c)(1).

2. Rios Rey declares that she never received any updates regarding her case after it was administratively closed. These allegations could give rise to an ineffective-assistance-of-counsel claim, because, if believed, Rios Rey never had an opportunity during the 2001 and 2002 hearings to present her fear of retaliation if removed to Mexico. As the Government conceded during oral argument, Rios Rey could pursue this claim by filing a new motion to reopen by following the procedure outlined in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See…