Filing a Motion to Reopen

Feb 22, 2016 | Motion to Reopen

As a Miami immigration lawyer, I have often encountered individuals who have failed to appear for their scheduled removal hearing. Failing to do so means that the Immigration Judge (IJ) will most likely have ordered you to be removed in absentia. If the government can show that you were given written notice of the hearing, the IJ must issue a removal order. Below are some frequently asked questions about one form of relief, which is filing a Motion to Reopen.

Why is it important for me to show up to my scheduled removal hearing?
If you receive an Order of Removal in absentia, this means that if you are ever “caught” by Immigration and Customs Enforcement (ICE), it can use that removal order to take you into custody and deport you from the U.S. without letting you see an IJ first.

Why else should I try to avoid getting an Order of Removal in absentia?
An Order of Removal in absentia makes you ineligible for a number of forms of relief from removal, such as voluntary departure, cancellation of removal, and adjustment or change of status, for a period of ten years after the date of the removal order. If you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

I have an existing Order of Removal in absentia. Does this mean that I have no relief?
You can, in limited circumstances, file a Motion to Reopen your removal proceedings, or you can ask ICE for discretionary relief. Keep reading to learn more about these options. It is, however, highly advisable to retain a Miami immigration lawyer to help you navigate this tricky area of immigration law.

When can I file a Motion to Reopen to address my Order of Removal in absentia?
You can file a Motion to Reopen if one of the following circumstances applies to you:

  1. you did not receive the Notice to Appear (NTA) giving the date and time of your hearing, or
  2. you did not appear at your hearing because of exceptional circumstances and you file your Motion to Reopen within 180 days of the date of your scheduled hearing.

Once you file a Motion to Reopen, an automatic stay of your deportation will remain in effect until the IJ issues a decision on your motion. This means that you cannot be removed from the country unless the IJ denies your Motion to Reopen. Again, if you have any questions in regard to this, you may want to consult with a Miami immigration lawyer.

I didn’t receive my Notice to Appear – can I file a Motion to Reopen?
That depends. Again, you may want to consult with a Miami immigration lawyer about this. There are no time restrictions for filing a Motion to Reopen with the Immigration Court if you did not receive proper notice of the hearing.

You and/or your Miami immigration lawyer have to submit any relevant evidence to show that you did not receive the NTA. Evidence can include your affidavit, affidavits from others who know about the situation, and proof of troubles with mail delivery at your residence.

I didn’t appear at my hearing because of exceptional circumstances – can I file a Motion to Reopen?
You may ask the IJ to reopen removal proceedings if your failure to appear for your hearing was due to exceptional circumstances. Exceptional circumstances can be, for example, the serious illness or death of a spouse, child, or parent. Please note, however, that in these cases, you must file the Motion to Reopen within 180 days of the issuance of the order of removal.

If you are going to file a Motion to Reopen based upon exceptional circumstances, it is important for your and/or your Miami immigration lawyer to include supporting documents, such as affidavits or sworn statements, to establish the circumstances and explain to the IJ why you had to miss your hearing and why you could not contact the court before your hearing.

If you would like more information on filing a Motion to Reopen, or about an existing Order of Removal in absentia, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.