Your Honor,

I will try to answer all the questions from “DHS, Opposition to reopen” to my best
knowledge.

DHS OPPOSITION TO MOTION TO REOPEN

The Department of Homeland Security, Immigration and Customs Enforcement
(DHS) opposes the respondent‘s motion to reopen and states in support of its
opposition the following:

1.This is the fifth motion to reopen and/or reconsider filed with the Board of
Immigration Appeals (Board) since the final administrative order issued by
the Board dismissing the respondent’s appeal on M arch 19, 2013. The last
two motions to reopen filed with the Board were denied in April 7, 2020 and
January 22, 2015. Thus, this motion is time barred as it has been filed over 8
and a half years after the entry of final administrative order. See 8 C.F.R.
1003.2(b)(2). This motion to reopen is also number barred under 8 C.F.R.
1003.2 (c) (2);

The Supreme Court has confirmed federal courts jurisdiction over motions to
reopen, noting that motion to reopen are an “important safeguard” See Dada v.
Mukasey, 554 U.S. I, 18 (2008), Kukana v.Holder, 139 S. Ct. 827 (2010).

In addition, most circuits have recognized that the filing deadlines, and in some
instances the numerical limitations, are not jurisdictional and are thus subject to
equitable tolling.
See Neves v. Holder, 613 F.3d 30(1st Cir.2010)(assuming, but not deciding, that
time and number limitations are subject to equitable tolling); Borges v. Gonzales,
402 F.3d 398 (3d Cir. 2005) (180 day time limitation to reopen in absentia order
subject to equitable tolling); Davies v. US INS, 10 Fed. Appx. 223(4thCir. 2001)
(unpublished) (time and number limitations subject to equitable tolling);
Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004) (time limitation subject to
equitable tolling); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 20050 (time
limitation subject to equitable tolling); Hernandez-Moran v. Gonzales, 408 F.3d
496 (8th Cir. 2005) (time limitation subject to equitable tolling); Socop-Gonzles v.
INS, 272 F.3d 1176, 1183-85 (9th Cir. 2001) (equitable tolling applies to time
limitation where an alien is unable to obtain vital information on existence of
claim, not limited to ineffective assistance of counsel or fraud); Iturribaria v. INS,
321 F.3d 889(9th Cir. 2003) (number limitation subject to equitable tolling); Riley
v. INS, 310 F.3d 1253, 1257-58 (10th Cir.2002) (time limitations subject to
equitable tolling). But See, Abdi v. U.S. Atty. Gen., 430 F.3d 1148, 1150 (11 th Cir.
1
2005) (time limitation is jurisdictional therefore not subject to equitable tolling)
compare Ruiz-Turcios v. U.S.Atty. Gen., No. 12-11503, 2012 U.S. App. LEXIS
23085, n.1 (Nov 8, 2012) (citing to the Supreme Court’s decision in Holland v.
Florida, 130 S. Ct. 2549 (2010) for the presumption that a statute of limitations is
subject to equitable tolling and stating that “nothing in the statute governing
motions to reopen that demonstrate that Congress intended the 90-day limitation to
be “an inflexible rule requiring dismissal”); Pereira v. U.S. Atty. Gen.,
258FedAppx. 277 (11th Cir. 2007) (unpublished) (statements in Abdi should be
regarded as dicta). The Fifth Circuit has treated requests for equitable tolling as
equivalent to requests for sua sponte reopening, and has held that it lacks
jurisdiction to review the BIA’s denial for such motions. See e.g. Ramos-Bonila v.
Mukasey, 543 F.3d 216 (5th Cir. 2008). Notwithstanding the Fifth Circuit’s
position, that court may still review claims of equitable tolling. See e.g. Toora v.
Holder, 603 F.3d 282, 284 (5th Cir. 2010) (reviewing BIA decision in which BIA
concluded “no equitable tolling excused the late [file motion to reopen] because
[petitioner] failed to exercise due diligence…”
On September 16, 2015, US Court of Appeals for the Third Circuit entered its
judgment of “lack of jurisdiction”. See Gheorghe Gardu, No: 15-2967 (3th Cir.
September, 16, 2015) (unpublished). Petitions Motion for Rehearing was denied on
October, 20, 2015.
The petition is filed within ninety days after denial of the timely Motion for
Rehearing. See Supt.Cr.R.13.3. The jurisdiction of this Court is invoked under 28
USC $1254(1).

A United States court of appeals always has jurisdiction to consider a final order of
the Board of Immigration Appeals (BIA) denying an immigrant’s motion to
reopen. Reyes Mata v. Lynch, 135 S. Ct. 2150, 2153 (2015) [login required]. The
BIA is the final administrative body interpreting and applying immigration laws.
According to the Supreme Court, the appellate court has no choice: “[W]hen a
federal court has jurisdiction, it has a virtually unflagging obligation to exercise it.”
Id. At 2156 (internal quotations omitted). This is true whether the denial is based
on a request for equitable tolling because of an extraordinary reason, such as
ineffective assistance of the counsel, or any other reason.

In Mata, the Supreme Court emphasized that o court’s review power over a
decision of the BIA is distinct from its power to affirm, reverse, or remand on the
merits. “The jurisdictional question (whether the court has power to decide if
tolling is proper) is of course distinct from the merits question (whether tolling is
proper)”. The Fifth Circuit confused these two distinct jurisdictional bases and held
that it lacked jurisdiction over this case. Therefore, the Supreme Court reversed its
2
decision. Id at 2156-57. Unlike the Fifth Circuit, 10 other court of appeals,
presented with the same question, exercised jurisdiction.

Elena Kagan- Federal Court has jurisdiction

“That court lack jurisdiction over one matter (the sua sponte decision) does not
affect their jurisdiction over another (the decision on the alien’s request),” Justice
Kagan wrote. “It follows, as the night the day, that the court of appeals had
jurisdiction over this case.”

I have been deported on 15 November, 2013, and such motions may also be
particularly important for those who have been deported from the United States.
Often, they are the only way to redress claims of wrongful removal. Wrongful
removals may be due to a wide variety of factors, including ineffective assistance
of the counsel in criminal or immigration court, changes in law that should be
applied retroactively, and newly discovered evidences. (See also PDHRP Practice
Advisory, Post-Departure Motions to Reopen and Reconsider (December, 2012).
In many such cases, the direct appeal process is ineffective. Thus, many
courts have now held that such motions are potentially available post-deportation,
notwithstanding the so-called post-departure bar regulations. See e.g. Garcia-
Carias v. Holder, 697 F.3d 257 (5th Cir. 2012); Contreras-Bocanseca v. Holder,
678 F.3d 811 (10th Cir. 2012) (en banc).

2.The respondent has not asserted any new evidence that will be filed that
would change the outcome in this matter. Additionally, the respondent has not
asserted that there are any forms of relief that the respondent would be
eligible for if the case was reopened;

When I came to US, 2004, I have registered at the University of South Carolina,
Columbia, S.C., in the Fall Semester, 2005, for PhD program in computers, and I
have worked as a grader. I gave low grades to the children of a Teacher (Steven
Fener), and consequently, the father, when find out about it, to the end of semester,
started to give me only 0 grades. I took 3 classes in the semester, and I was going
OK, but starting to the end of semester, all my grades started to be 0. And in the
final exams, I took only 0, so I have failed the semester. Then, they said I should
live the University from South Carolina and so I have left to Philadelphia.
It was a challenge for me, if I could finish the PhD program. I am graduated in
geology since 1984, and in computers since 1997 (master in 2001) and probably I
am able to finish. That is why I have started the Master program in computers, and
I have started to take classes at Temple University in Philadelphia, PA. Then at
Saint Joseph University, I took 4 classes, Spring, 2007, 2010, 2011, Spring 2013,
3
and at Villanova University, 2008, and West Chester University in Fall 2007, and I
have started in Fall 2013 ( when I have been picked up from the street, I was in the
middle of the semester).
I have paid for all the classes from the wok that I was doing, that is why I was not
able to take more classes.

3.The respondent has also not asserted “exceptional circumstance” for sua
sponte reopening. See Matter of G-D-, 22 I&N Dec.1132 (BIA, 1999); see also
Matter of J-J-, (BIA, 1997);

I would like to say that the motions to reopen which are appropriate but are not
limited to: allegations of ineffective assistance of the counsel; new eligibility for
relief from removal; and vacatur of a conviction that formed the basis for the order
of removal. See e.g. Patel, 378 F.3d at 612 (changed country conditions); Siong v.
INS, 376 F.3d 1030, 1036-39 (9th Cir.m2004) (ineffective assistance of the
counsel); Iturribaria v. INS, 321 F.3d 889, 894-97 (9th Cir. 2003) (ineffective
assistance of the counsel); De Faria v. INS, 13 F.3d 422 (1 st Cir. 1993) (vacatur of
conviction).
I have mentioned one of the reasons is “the ineffective assistance of the counsel”
(IAC).
Also, I would like to invoke that this argument or aspect of the case that was
overlooked earlier.
Motion to reconsider which asks that a decision be reexamined in light of
additional legal arguments, a change of law, or perhaps an argument or aspect of
the case that was overlooked earlier (See Matter of Ramos, 23 I&N Dec. 336, 338
(BIA 2002), including errors of law or fact in the previous order (See INA $ 240(c)
(6)( C), 8 U.S.C. $1229a( c)(6); 8 C.F.R. $$ 1003.2(b)(1), 1003.23(b)(2).)
I would also to say that the Master Hearing for my case took around one
hour, because Immigration Judge from Philadelphia arrived at EOIR Philadelphia
at 10 AM, and my attorney needed to leave at 11:00 A.M., because he had a plane
to catch to go to Florida at a relative wedding. So, my Master Hearing took about
one hour. So I was allowed to present my case in only 10-15 minutes. On the other
hand, my case is a matter of too many coincidences to ignore.
It makes sense only if you put things together, otherwise make no sense.

I would like to refer to the Post-Departure Bar. Although the statutes codifying
MTRs do not contains a bar to motions filed after a person departs, two federal
regulations do: 8 C.F.R. & 1003.2(d) (MTR filed with the BIA) and 8 C.F.R. &
1003.23(b)(1) (MTR filed with the IJ). Both regulations contain identical language
prohibiting adjudication of post-departure motions, providing that MTRs “shall not
4
be made by or o behalf of a person who is subject of removal, deportation, or
exclusion proceedings subsequent to his or her departure from the United States.”
These regulations have been interpreted to apply to persons who have been
physically removed by the government, those who have who have left the country
voluntarily while subject to an order of removal, and those who have left the
country after a grant of voluntary departure. See Dada v. Mukasey, 554 U.S. 1, 6-7
(2008).

I would like to ask if possible to reopen/reconsider my case, and that is why I have
invoked 16 reasons for this (I have put those reasons in my complaint). I would
like to say that the Master Hearing for my case took around one hour, because
Immigration Judge from Philadelphia arrived at EOIR Philadelphia at 10:00 A.M.,
and my attorney need to leave at 11:00 A.M., because he had a plane to catch to go
at a relative wedding. That is why I did not have the time present my case
thoroughly, and consequently there are a lot of misunderstandings. My attorney
said he will take care of my case, but now I realize that he was interested in his
relative wedding, not in my case. That is why I have invoked in my reasons
Ineffective Assistance of the Counsel, and the V Amendment of the U.S.
Constitution, which even do not refer strictly to aliens, it say that every alien is
entitled to a fair hearing.
The Board possesses discretion to reopen or reconsider cases sua sponte 8
C.F.R. $ 3.2(a); See Matter of J-J-.21 I&N Dec. 976, 984 (BIA 1997). See also
Motions and Appeals in Immigration Proceeding, 61 Fed. Reg. 18900, 18902
(1996)(“[S]ection 3.2(a) of the rule provides a mechanism that allow the Board to
reopen or reconsider sua sponte and provides a procedural vehicle for the
consideration of cases with exceptional circumstances”.
The Supreme Court has confirmed federal courts jurisdiction over motions to
reopen, noting that motions to reopen are an “important safeguard”. See Dada v.
Mukasey, 554 U.S. I. 18 (2008); Kukana v. Holder, 130 S. Ct. 827, 834 (2010).
I would like to refer to the V Amendment of the U.S. Constitution:
“Immigration proceedings, although not subject to the full range of constitutional
protections, must conform to the Fifth Amendment’s requirement of due process.”
Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9 th Cir. 2005) (as amended), see
also Gonzaga-Ortega v. Holder. No. 07-74361, --F.3d --, 2013 WL 5198549, at *8
(9th Cir. June 7, 2013) (as amended). Vilchez v. Holder, 682 F.3d 1195, 1199 (9 th
Cir. 2012); United States v. Reyes-Bonilla, 671 F.3d 1036, 1945 (9 th Cir. 2012),
cert denied by 133 S. Ct. 322(2012); Pangilinan v.Holder, 568 F.3d 708, 709(9 th
Cir. 2009)(order). “A full and fair hearing is one of the due process rights afforded
to aliens in deportation proceedings. … A court will grant a petition on due process
grounds only if the proceedings was so fundamentally unfair that the alien was
5
prevented from reasonably presenting his case.” Gutierez v. Holder , 662 F.3d
1083, 1091 (9th Cir. 2011) (citations and quotations marks omitted ); see also Cano-
Merida v. INS, 311 F.3d 960, 964 (9 th Cir. 2002); Colemar v. INS, 210, f.3d 967,
971 (9th Cir. 2000) (“[A]n alien who faces deportation is entitled to a full and fair
hearing of his claims and a reasonable opportunity to present evidence on his
behalf.”).
Removing an alien from the United States without any procedural
safeguards of a formal hearing may result in a due process violation. See Salgado-
Diaz, 395 F.3d at 1162-63 (“Failing to afford petitioner an evidentiary hearing on
his serious allegations of having been unlawfully stopped and expelled from the
United States, aborting his pending immigration proceedings and the relief
available to him at that time, violated his right to due process of law.”).
This court reviewed de novo claims of due process violations. Liu v. Holder,
640 F.3d 918, 930 (9th Cir. 2011) (as amended); Ibarra-Flores v.Gonzales. 439 F.3d
614 , 620 (9th Cir. 2006). ”The BIA’s decision will be reversed on due process
grounds if (1) the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding may have been affected
by the alleged violation.” Id. At 62021 (internal quotation marks and citations
omitted, see also Zetino v. Holder, 622 F.3d 1007, 1013 (9 th Cir. 2010) (en banc);
Gutierez v. Holder, 730 F.3d 900, 903 (9th Cir. 2013) (no due process violation);
Dent v. Holder, 627 F.3d 365, 373 (9th Cir, 2010); Hammad v. Holder, 603 F.3d
536, 545 (9th Cir. 2010) (explaining that although the rules of evidence are not
2013 E-2 applicable to immigration hearings, proceeding must be conducted in
accordance with due process standards of fundamental fairness); Shin v. Mukasey,
547 F.3d 1019, 1024 (9th Cir. 2008) (explaining that to successfully attack the
conclusions and others made during removal hearings on due process grounds “it
must be shown that the proceedings were manifestly unfair and that the actions of
the [immigration judge] were such as to prevent a fair investigation” (internal
quotation marks omitted)).

In exceptional circumstances, The BIA or Immigration Court may exercise its

discretionary authority to reopen proceedings sua sponte. Matter of J-J-, 22 I&N
Dec. 976 (BIA 1997). For a judge to consider taking a motion sua sponte, the
applicant at a minimum need to demonstrate “a substantial likelihood that the
result in his case would be changed if reopening is granted “Matter of Becliford, 22
I&N Dec. 126 (BIA 2000).

6
4.It should also be noted that the departure bar does apply in reference to sua
sponte motions to reopen. See Desai v. A.G., 695 F.3d 267 (3 rd Cir.2012). Since
the respondent has been removed based on his final order, this bars his
motion to reopen that seeks the Board to exercise its sua sponte authority.

Congress choose to incorporate some limitations on MTR (Motions To Reopen),

but did not included a post-departure bar in the state.
I would like to say that the motions to reopen which are appropriate but are
not limited to allegations of ineffective assistance of the counsel, new eligibility for
relief from removal. See e.g. Patel, 378 F.3d at 612 (changed country conditions);
Siong v. INS, 376 F.3d 1030, 1036-39 (9 th Cir. 2004) (ineffective assistance of the
counsel); Iturribaria v. INS, 321, F.3d 889, 894-97 (9 th Cir. 2003) (ineffective
assistance of the counsel); De Faria v. INS, 13 F.3d 422(1 st Cir.1993) (vacatur of
conviction).
I have mentioned one of the reasons is “the ineffective assistance of the counsel”
(IAC).
Also, would like to invoke that an argument or aspect of the case that was
overlooked earlier.
Motion to reconsider which ask that a decision be reexamined in light of
additional legal arguments, a change of law, or perhaps an argument or aspect of
the case that was overlooked earlier (See Matter of Ramos, 23 I&N dec. 336, 338
(BIA 2002), including errors of law or fact in the previous order (See INA $ 240
( c)(6)( C), 8 U.S.C. $ 1229a( c)(6)( C); 8 C.F.R. $$ 1003 2(b)(1), 1003.23(b)(2).)
I would like to say that the Master Hearing for my case took around one
hour, because IJ from Philadelphia arrived at EOIR Philadelphia at 10 A.M., and
my attorney need to leave at 11 A.M., because he had a plane to catch to go to
Florida at a relative wedding. So, my Master Hearing took about an hour. So, I was
allowed to present my case in only 10-15 minutes. On the other hand my case is a
matter of too many coincidences to ignore.
It makes sense only if you put things together, otherwise make no sense.
I would like to refer to the Post-Departure Bar. Although the statutes
codifying MTRs do not contain a bar to motion filed after a person departs, two
federal regulations do: 8 C.F.R. $ 1003.2(d) (MTRs filed with the BIA) and 8
C.F.R. $ 1003.23(b)(1)(MTRs filed with the IJ). Both regulations contain identical
language prohibiting adjudication of post-departure motions, providing that MTRs
“shall not be made by or behalf of a person who is the subject of removal,
deportation, or exclusion proceedings subsequent to his or her departure from the
United States.”
These regulations have been interpreted to apply to persons who have been
physically removed by the government, those who left the country voluntarily
7
while subject to an order of removal, and those who have left the country after a
grant of voluntarily departure. See Dada v.Mukasey, 554 U.S. 1, 6-7 (2008).

I would like to say that Departure is not a “transformative event“ as opined in

Armendarez-Mendez. In Armendarez- Mendez, the BIA stated that individuals
who departed have “literally passed beyond our aid”. (Armendarez- Mendez, 24
I&N Dec. at 656. However, the BIA clearly has jurisdiction in cases in which the
alien is out of the country but prevails on a petition for review. Further, the BIA
itself, in Nulnes-Nolasco, found it had jurisdiction a post departure MTR an in
absentia order based on lack of notice (Bulnes-Nolasco, 25 I&N Dec. 57. See also
Matter Diaz Garcia, 25 I&N Dec. 794 (BIA 2012). Thus, the BIA’s reasoning
appears to be flawed and inconsistent insofar as it purports to lack jurisdiction by
virtue of the individual’ departure.

The IJ and BIA retain sua sponte jurisdiction despite the regulation. The BIA has
repeatedly held that the post-departure bar strips it of jurisdiction to consider
MTRs even under the regulation giving the immigration courts and the BIA
authority to reopen cases sua sponte (See Matter of Armendarez-Mendez, 24 I&N
Dec. 656 (BIA 2008). However, the regulation granting sua sponte jurisdiction
states that IJ or BIA may reopen “at any time”. Furthermore, the post-departure bar
purportedly restricts the alien right to file an MTR, whereas the sua sponte
regulation authorize the IJ and BIA to reopen or reconsider (Rosillo-Puga, 580
F.3d at 1170 (Lucerno, J, dissenting) overruled by Contreras-Bocanegra, 678, F.3d
811)). When discretion is granted to an agency it must be exercised case-by-case
basis (See Accardi v. Shaughnessy, 347 U.S, 260(1954); Hintopoulos v.
Shaughnessy, 353 U.S. 72(1957)).

5.Finally, it is not clear from the respondent’ motion that he is even asserting
error in the removal order. He is only asserting unproven suspicions that have
little relevance to the removal hearing itself.

By default I assumed that removal order is unfair and that my deportation was a
wrongfully deportation.

I have presented my suspicions, because I believe that those are the trigger point
that started my deportation. Starting with an unfair Master Hearing, which leaded
to I would say “wrong conclusions”. Continuing with my ex-employer, when he
found out that I have an asylum case, he asked me “Who I am to criticize
Romanian Intelligence Services?”. Because they acted in such a way to fraud U.S.
immigration laws, and finally to put me out of the country. And if you put all
8
things together, (my motion to reopen with the appendixes) you will that my
“assumptions” are the real ones.

A motion to reopen is an important statutory mechanism for people who have been
ordered removed. See 8 U.S.C. $ 1229 a( c)(7). It allows these individuals to ask
either the immigration judge (IJ) or the BIA to consider material and previously
unavailable evidence and vacate the existing order. See 8 C.F.R. $$ 1003.2( c);
1003.23(b)(3). When and IJ or the BIA reopen a case, the existing removal order is
vacated. Nken v. Holder, 556 U.S. 418, 429 n.l (2009).

In addition to the general reopening statute at 8 U.S.C. $1229a( c)(7), there are two
other statutory provisions addressing specific bases for motions to reopen: (1) 8
U.S.C. $1229 a( c)(7)( C) (ii), governing motions to apply for fear-based protection
based on changed country conditions and (2) 8 U.C.S.$ 1229 a( c)(7)( C)(iv),
governing special rule motions for qualifying survivors f domestic violence.

The Supreme Court recognizes that a “motion to reopen is an ‘important

safeguard’ intended to ensure a proper and lawfully disposition of immigration
proceedings.“ Kucana v. Holder, 558 U.S. 233, 242 (2010) (quoting Dada v.
Mukasey, 554 U.S. 1, 18 (2008)). Noncitizens have a statutory right to file one
motion to reopen their case. See Reyes Mata v. Lynch, 135 S. Ct. 2150, 2153
(2015), Dada, 554 U.S. at 4-5.

“Whether the BIA rejects the alien’ motion to reopen because it comes too late or
because it falls short in some other respect, the court have jurisdiction to review
that decision, “wrote Justice Elena Kagan in the majority decision. The high court
ruled that the Fifth Circuit wrongly claimed that it lacked jurisdiction to consider
an immigrant’s appeal of the BIA’s denial of an untimely motion to reopen his
removal proceedings.

3.jun 2021- … appeals court have ruled that immigration judges have the authority
to re-open deportation cases even after individuals have been removed.

I would like to you in advance.

Respectfully submitted.
Gheorghe Gardu