The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on the Government's motion
for reconsideration/clarification and for remand.
This opinion will rely on the facts as presented in its
February 28, 2005 Opinion.
On October 13, 2004, Petitioner Ramon Solis ("Petitioner") brought a petition for writ of habeas corpus. This Court held
oral argument on the issue on October 20, 2004. At oral argument,
this Court granted Petitioner's motion and ordered his release
from custody. Thereafter, a written opinion was filed on February
On March 12, 2005, the Government brought a motion for
reconsideration/clarification of the Court's February 28, 2005
Opinion and for remand of the Petitioner's case to the Board of
Immigration Appeals ("BIA").
I. Motion for Reconsideration Standard
A motion for reconsideration is governed by Local Civil Rule
7.1(i). It requires that the moving party "set forth concisely
the matters or controlling decisions which counsel believes the
[Court] has overlooked." Pittston Co. v. Sedgwick James of New
York, Inc., 971 F. Supp. 915, 918-919 (D.N.J. 1997). Thus, a
party "must show more than a disagreement with the court's
decision." Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435
A mere "recapitulation of the cases and arguments considered by
the court before rendering its original decision fails to carry
the moving party's burden." Carteret Sav. Bank, F.A. v.
Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989). "Only where the
court has overlooked matters that, if considered by the court, might reasonably have resulted in a different conclusion, will it
entertain such a motion." Re: United States v. Compaction Sys.
Corp. et al., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
II. The Government's Motion
The Government agrees with the holding in this Court's February
28, 2005 Opinion that Petitioner had not been convicted of an
"aggravated felony" within the meaning of Nugent v. Ashcroft,
367 F.3d 162 (3d Cir. 2004). See Def.'s Letter Br. at 3.
However, the Government states that while "Solis is not an
`aggravated felon' under Nugent . . . he is not `home free.'"
Id. According to the Government, Petitioner is inadmissible to
this country because his crime is one involving moral turpitude.
See id. Therefore, the Government contends that the correct
procedure is for the Petitioner to "apply to the BIA for a waiver
of inadmissibility or whatever relief his counsel deems
appropriate under the circumstances of this case." Id. at 3-4.
According to the Government, Petitioner "remains inadmissible and
subject to removal." Id. at 4. For that reason, the Government
argues that this Court should remand this case to the BIA for
further proceedings that are consistent with this Court's
February 28, 2005 Opinion. See id.
Through a telephone message to the chambers of the undersigned,
on April 8, 2005, Thomas E. Moseley, Esq., Petitioner's counsel,
advised that he did not oppose the Government's request.
This Court agrees with its previous holding that the Nugent
decision applies to Petitioner's case, and that Petitioner is not
an "aggravated felon" under Nugent. Accordingly, the prior
Order of Removal is null and void. However, particularly in light
of Petitioner's consent, this Court will grant the Government's
motion for remand so that the BIA may address the issue of
Petitioner's inadmissability in ...