In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.  

In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion."  In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings.  Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening.  In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."

The full decision in Benitez v. Lynch can be found here:

The full decision in Osegueda de Alfaro v. Lynch can be found here: