This case raises the question of whether the Immigration and Naturalization Service ("the INS" or "the Service")1 may — on the basis of information that was available to the Service at the time of an alien's original proceedings, and subsequent to the entry of a final order of removal — successfully move to remand a case to the Immigration Judge ("IJ") in order to lodge additional grounds for removability. The Petitioner appeals from the judgment of the district court (Raggi, J.) denying his petition for a writ of habeas corpus. We conclude that the Board of Immigration Appeals ("the BIA" or "the Board") acted contrary to its own precedents when, in the absence of any previously unavailable evidence, it granted the Service's motion to remand Petitioner's removal proceedings. We therefore reverse the judgment of the district court and remand the case to that court with instructions to grant the petition.

Petitioner Norman A. Johnson ("Petitioner" or "Johnson"), a citizen of Jamaica, entered the United States as a lawful permanent resident in 1983. Between November 1994 and December 1998, Petitioner was convicted five times of marijuana related offenses.2 On November 4, 1994, October 23, 1996 and May 7, 1998, Petitioner pleaded guilty to criminal sale of marijuana in the fourth degree, in violation of New York Penal Law § 221.40. On January 5, 1998 and December 1, 1998, Petitioner pleaded guilty to criminal possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10.

In July of 2000, the INS began removal proceedings against Johnson as an alien convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and as an alien convicted of a crime related to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i). In the charging document, and at the hearing before the IJ, the INS relied solely on Petitioner's May, 1998 conviction. On August 15, 2000, the IJ found Petitioner removable on the basis of this conviction. The IJ's decision was affirmed by the BIA on January 9, 2001.

Shortly thereafter, Johnson succeeded in having his May 7, 1998 judgment of conviction vacated pursuant to New York Criminal Procedure Law § 440.10(1)(h). Under BIA precedent, a criminal conviction that has been so vacated does not constitute a conviction for immigration purposes. In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379 (BIA 2000). Accordingly, on March 30, 2001, the INS moved both to reopen and to remand Petitioner's removal proceedings. In its motion, the INS conceded that the vacatur of Petitioner's May, 1998 judgment of conviction rendered that conviction an inadequate factual predicate for finding Petitioner to be removable. But the Service nonetheless suggested that termination of removal proceedings was not warranted. Instead, it asked that the case be remanded so that it could amend the charging document to include Petitioner's other marijuana convictions. The Petitioner did not file a response to the INS's motion. Subsequently, the BIA granted the motion to reopen as unopposed. The BIA's opinion included the "further order" that the record be "remanded to the Immigration Judge for further proceedings."

On remand, the INS amended the charging document to included Petitioner's four other marijuana convictions. Petitioner, who was pro se, responded by filing a motion to terminate his removal proceedings. In that motion he alleged, inter alia, that the INS was barred by res judicata from bringing new charges against him. Specifically, Petitioner argued that his other marijuana convictions were known to the INS at the time of his initial removal proceedings, and, accordingly, that they constituted an improper basis for renewing removal proceedings before the IJ. Noting that the Service had a "full and fair opportunity" to raise the other marijuana convictions in the context of the original removability proceedings, the Petitioner argued that the INS should not be allowed to relitigate the issue of removability.

In an opinion dated September 17, 2001, the IJ found Petitioner to be removable as charged. The IJ rejected Petitioner's res judicata arguments, concluding that "the parties never had an opportunity to reach the merits of the present issues because the respondent [in his original proceedings] was not charged with [convictions other than the May 7, 1998 conviction]." The IJ further stated that "[t]he respondent's argument that the Service should have alleged all of his convictions in the first proceeding is ... without merit" because "[t]here is nothing in the doctrine of res judicata which requires the Service to do so."

Petitioner filed a timely appeal to the BIA, requesting that the Board terminate his removal proceedings. On February 5, 2002, the BIA issued a decision denying Petitioner's request for termination and affirming the decision of the IJ on the merits.3 In its decision, the Board rejected Petitioner's res judicata and collateral estoppel claims on the grounds that the convictions forming the basis of the new removal order "had never been previously litigated by the parties." The Board also noted that "res judicata will not bar subsequent litigation if new evidence arises after the conclusion of ... previous litigation." The Board did not clarify how this assertion was relevant, given that all of Petitioner's convictions were known or knowable before the end of the earlier litigation.

On February 20, 2001, Petitioner filed a habeas petition in the Eastern District of New York pursuant to 28 U.S.C. § 2241. In that petition, he challenged the BIA's January 9, 2001 decision — which at that time was still in effect — inter alia on the grounds that his May 7, 1998 conviction should not be considered an "aggravated felony." Petitioner subsequently amended his petition twice to raise claims relating to the renewal of his administrative proceedings below. Johnson's amended petition alleged, among other things: 1) that the introduction of the new charges by the INS was barred by res judicata, 2) that the BIA erred in granting the Service's motion to reopen in the absence of "evidence which was not available at the time of the previous proceeding [s]", and 3) that Petitioner's convictions (other than the vacated May 7, 1998 conviction) did not constitute aggravated felonies.

Despite the existence of a stay of removal, Petitioner was removed from the United States on February 28, 2002. Subsequently, on October 30, 2002, a status conference was held without Petitioner, at which the district court (Raggi, J.) addressed the merits of Petitioner's claims.4 The district court found Petitioner's res judicata claims to be without merit "for the reasons the government [had argued] in its papers," but sought additional information relating to whether Petitioner's convictions could be considered aggravated felony offenses. The district court did not specifically address whether the BIA had erred in reopening and remanding Petitioner's removal proceeding in the absence of any previously unavailable evidence.

By letter dated November 4, 2002, the INS submitted the additional information requested by the district court. On December 12, 2002, the district court denied the petition for a writ of habeas corpus "for the reasons stated on the record" at the October 30, 2002 status conference. The Petitioner appealed.5

Petitioner alleges that the Board violated its own regulations in granting the Service's motion to reopen and remand his proceedings. Before we can consider Petitioner's arguments, however, we must address the Service's suggestion that, for various reasons, we lack authority to hear the merits of Petitioner's appeal.

We have previously held that discretionary determinations made by the Board of Immigration Appeals are not reviewable in the context of a § 2241 habeas petition. Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001) (per curiam). The Service contends that the BIA's decision to grant its motion to reopen and remand was discretionary, and hence outside of the scope of § 2241 habeas review.

The INS, however, misapprehends the extent of the BIA's discretion to grant or deny such motions. The BIA is required to follow the law, including INS regulations and BIA precedents that impose mandatory limitations on the granting of procedural motions. While the BIA has substantial discretion to grant or deny motions that fulfill those basic prerequisites, it is without discretion, when it deals with motions made by the parties, to ignore existing regulatory requirements. See, e.g., Ramon-Sepulveda v. INS, 743 F.2d 1307, 1309-10 (9th Cir.1984) (reversing an IJ decision to grant a motion to reopen where regulatory requirements were not met); cf. Acevedo v. INS, 538 F.2d 918, 920 (2d Cir.1976) (per curiam) (noting that the BIA "would have been derelict in its duty" had it granted a reopening in a case where the movant presented no new, and previously unavailable, evidence). The question of whether the BIA has improperly ignored mandatory regulatory requirements is thus a question of law that falls within the scope of the district court's § 2241 habeas review. See, e.g., Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 142-43 (2d Cir.2003).6

The Service also suggests that the Petitioner failed to exhaust his administrative remedies because he did not file a response to the INS's motion to reopen and remand. Immigration and Nationality Act § 242(d)(1) provides that "[a] court may review a final order of removal only if... the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). We have construed this requirement to apply to § 2241 habeas proceedings. Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir.2004).

This Court has not extensively discussed the effect that a "procedural default" may have in the context of § 242(d) exhaustion. But, whatever its possible effects in other circumstances, Petitioner's failure to object to the Service's motion does not, in the case before us, constitute a failure to exhaust administrative remedies. Petitioner's arguments in opposition to a remand to hear new charges were addressed on their merits by both the Immigration Judge and the BIA. And it is clear that the agency itself did not consider Petitioner to have "forfeited" his ability to contest the renewed removal proceedings. We therefore conclude that there is no § 242(d) barrier to judicial review of Petitioner's claims.7 See, e.g., Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994) (finding that an issue was adequately exhausted even where it had been raised late in an alien's administrative proceedings, because it had been addressed on its merits, thus "apparently excusing [the alien's] failure to raise the issue previously").

We, therefore, turn to the merits of Petitioner's appeal.

"Motions to reopen [final orders of removal] are disfavored." Abudu, 485 U.S. at 107, 108 S. Ct. 904. Such motions are allowed under INS regulations only where a party seeks to present new evidence that "is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 3.2(c)(1) (2001) (now codified at 8 C.F.R. § 1003.2(c)(1)). Significantly, the BIA has, by decision, imposed an equivalent precondition on the granting of a motion to remand. In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992). As a result, where it appears to the Board that the evidence sought to be offered is not material or was already available or could have been discovered or presented at the former hearing, the Board is constrained by precedent to deny a motion to remand.8 See 8 C.F.R. § 3.2(c)(1) (2001); see also Coelho, 20 I & N. Dec. at 472-73.

i. The Motion to Reopen

The vacatur of Petitioner's May 7, 1998 conviction was material and certainly constituted previously unavailable new evidence. As the Service conceded in its motion to reopen, the expunging of Petitioner's conviction pursuant to New York Criminal Procedure Law chapter 440 rendered that conviction an improper basis for a finding of removability under the BIA's precedents. See Rodriguez-Ruiz, 22 I. & N. Dec. at 1378. Given that the May, 1998 conviction constituted the sole basis for the finding of removability against Petitioner, it was more than appropriate for the Board to reopen his proceedings upon being informed of the vacatur. See, e.g., Wiedersperg v. INS, 896 F.2d 1179, 1182-83 (9th Cir.1990) (finding that BIA abused its discretion where it declined to reopen an alien's proceedings subsequent to the nullification of the sole conviction on the basis of which he was adjudged deportable); Becerra-Jimenez v. INS, 829 F.2d 996, 1000-02 (10th Cir.1987) (remanding to the BIA for consideration of the fact that the alien's convictions had been expunged).

We conclude that the Board did not err in granting the Service's motion to reopen.

ii. The Motion to Remand

The vacatur of Petitioner's conviction was not, however, "evidence sought to be offered [on remand]." 8 C.F.R. § 3.2 (2001). The BIA, as a matter of practice, routinely reopens and terminates proceedings of this kind without remanding for further inquiry before an IJ. See, e.g., Rodriguez-Ruiz, 22 I. & N. Dec. at 1380; In re Gutnick, 13 I. & N. Dec. 672, 674 (BIA 1971). And while the Service attached a copy of the state court decision vacating Petitioner's conviction to its motion for a remand, it did not suggest that there were any factual issues with respect to the vacatur that needed to be further explored on remand. The sole reference in the Service's motion to evidence to be introduced on remand was that "[u]pon remand, the Service will file with the Immigration Judge a Form I-261 to allege [Mr. Johnson's other marijuana convictions]." And in fact, on remand, the Service introduced only this previously available evidence of Johnson's removability.

In the absence of any indication that the INS intended to introduce any previously unavailable evidence upon remand, the Board's own precedents clearly mandated that the Service's motion be denied. See Coelho, 20 I. & N. Dec. at 471-73; see also Kuang-Te Wang v. Ashcroft, 260 F.3d 448, 451 & n. 2 (5th Cir.2001) (discussing BIA requirements for granting motions to remand). While the Board is free to modify its precedents in a reasoned fashion, it acts arbitrarily and unlawfully when it simply ignores established holdings.9 See, e.g., Ke Zhen Zhao v. United States Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001) (noting that the BIA acts arbitrarily where it "inexplicably departs from established policies"); Johnson v. Ashcroft, 286 F.3d 696, 700 & n. 4 (3d Cir.2002) (citing authorities in support of the proposition that the BIA must be reversed where it ignores its established holdings).

It follows that the BIA erred in granting the INS's motion to remand.

To say that the granting of the INS's motion to remand was error does not, however, mean that the government is barred from seeking to remove Petitioner on the basis of his other marijuana convictions, in new proceedings. And we wish to make clear that there is nothing in our opinion that precludes the INS from initiating such proceedings. Nor is there anything to preclude Petitioner from arguing, as he has before this Court, that such proceedings are barred by res judicata, or that the convictions on which they are based are not aggravated felonies. Because we find that the BIA erred in granting the Service's motion for remand, we need not and do not reach those issues today.10

We have determined that the BIA acted contrary to its precedents in granting the Immigration and Naturalization Service's motion to remand. We therefore REVERSE the district court's judgment and REMAND the case to that court with instructions to grant the writ.