Motion to Reopen

Motions filed with an Immigration Court

If you have lost your case in Immigration Court and you believe the decision was made in error, you should file a motion to reopen.

A motion to reopen is a request to the immigration court to review its decision. The motion must be based on factual grounds, such as the discovery of new evidence, or changed circumstances.

Moreover, the motion requires you to provide specific reasons for why officials should reopen your case. Unlike appeals, which ask a higher authority to review and reverse a decision, motions to reopen request a review by the authority that issued the latest decision in the proceeding.

A motion to reopen may be filed if it can be shown that:

  • The requested evidence was not material,
  • The required initial evidence was submitted with the application or petition,
  • The request for appearance or additional evidence was complied with during the allotted period, or
  • The request for evidence or appearance was not sent to the address of record.

A motion to reopen must state new facts that will have to be proved at a hearing if the motion is granted, and must be supported by affidavits or other evidence. INA § 240(c)(7)(B). The motion must show that the evidence is material to the case, was not available at the time of the original hearing and could not have been discovered at the original hearing. 8 CFR § 1003.2(c)(1).

An in absentia (in absence) order of removal is entered by the immigration court when the respondent fails to appear to a hearing. Rescinding a deportation order entered in absentia is complicated, but certainly not impossible.

INA § 240(b)(5)(C)(ii) provides that an in absentia deportation order may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or (2) of INA § 239(a), and the failure to appear was through no fault of his own.

The U.S. Court of Appeals for the Ninth Circuit held that if an immigrant does not receive actual or constructive notice of deportation proceedings, “it would be a violation of their rights under the Fifth Amendment of the Constitutional to deport them in absentia”. Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).

The same Court, in Mejia-Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011), opined that the strong presumption of effective notice by certified mail contrasts with a weaker presumption that results from regular mail service; and that an applicant’s sword affidavit that neither she nor a responsible party residing at her address received the notice “should ordinarily be sufficient to rebut the presumption of delivery and entitle [the applicant] to an evidentiary hearing”.

Also, the Board of Immigration Appeals held that a respondent may be able to reopen their cases if the Court properly entered an in absentia order, if she did not receive oral warnings in her native language of the time and place of the proceedings and the consequences of failing to appear at the hearing. Matter of M-S-, 22 I&N Dec. 349 (BIA 1998). In the same ruling, the BIA opined that a respondent is eligible for a form of relief that was unavailable at the time of the hearing.

If a deportation order was entered against you in absentia, speak to a criminal immigration lawyer to find out if it can be rescinded through a motion to reopen.

Motions filed with the Board of Immigration Appeals

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws, within the Executive Office for Immigration Review of the United States Department of Justice.

Some decisions, such as those on family-based visa petitions under section § 204 (a) of the Immigration and Nationality Act (INA), orders of removal, denials of applications for relief from removal, requests for political asylum, cancellation of conditional resident status, requests for derogation of one or more grounds of inadmissibility (Waiver of Grounds of Inadmissibility), motions to reopen, and motions to reconsider of decisions previously rendered, are appealed to the BIA.

In most cases, if the BIA affirms the lower court’s decision, then you can still appeal in the U.S. Court of Appeals. Sometimes, a motion to reopen to the BIA is the best option.

Generally, a motion to reopen removal proceedings with the BIA must be filed no later than 90 days after the date of a final order of removal, and only one motion may be filed. See INA § 240(c)(7)(A), (C)(i) ; 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1).

There are statutory exceptions to the filing deadlines. According to § 240(c)(7)(C)(ii), the 90-day deadline does not apply if the basis of the motion is to apply for asylum or withholding of removal and is based on changed country conditions arising in the country of nationality, if the evidence to be offered is material and was not available and could not have been discovered or presented at the previous proceeding. See also 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i). Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) Interim Decision #3788.

In all other cases, a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur. Matter of VELARDE-Pacheco, 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463.

Call our office right away to speak to a criminal immigration attorney if you have an outstanding deportation order and wish to file a motion to reopen proceedings.

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