The First Circuit has granted a petition for review filed by a Cambodian former lawful permanent resident whose second motion to reopen was denied after a Rhode Island court vacated his 1996 drug conviction for a Rule 11 plea-colloquy defect, holding that the BIA mistakenly analyzed the motion under the statutory time-and-number bar rather than its own sua sponte reopening authority.
The Court held that the BIA's invocation of equitable tolling and the ninety-day statutory deadline revealed that it had misunderstood the petitioner's request, since sua sponte motions are not subject to any time bar and may be granted "at any time." The Court also held that the BIA erred on the merits by concluding the vacatur was not based on a procedural defect, since the state court's order expressly cited a Rule 11 violation implicating due process. The Court remanded for the BIA to exercise its sua sponte discretion under the correct legal framework.
The full text of Kim v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-2042P-01A.pdf