Monges-Garcia

MEMORANDUM *

Noemi Monges-Garcia seeks review of the order of the Board of Immigration Appeals (BIA) dismissing her appeal from the Immigration Judge’s (IJ) decision denying her motion to reopen a 1994 deportation order entered in absentia in order to apply for adjustment of status relief. The BIA barred Monges-Garcia from proceeding by sua sponte holding that her motion was untimely as it was filed more than 90 days after the IJ’s decision (October 28, 1994) and after September 30, 1996. The Board cited no authority for this, but we assume that it meant to apply the general 90-day limitations period in 8 C.F.R. § 1003.23 (b)(1).

Monges-Garcia had no opportunity to argue to the BIA that this ruling was wrong because it was made sua sponte; however, she does challenge it in her petition for review. 1 We find the ruling problematic, primarily because applying the 90-day bar of § 1003.23(b)(1) to MongesGarcia’s request to reopen to adjust status appears to conflict with former INA § 242B(e)(l) (1994), which mandates a five-year period of ineligibility for certain discretionary relief including adjustment of status. Section 242B(e)(l) evidently contemplates that such relief may be…