A motion to reopen is an important statutory mechanism for people who have been ordered removed. 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. When an IJ or the BIA reopens a case, the existing removal order is vacated and the person is afforded a new opportunity for the court to hear their case.

When can a motion to reopen be filed?

Generally, the IJ or the BIA must receive the motion to reopen within 90 days of the final removal order. However, the IJ or the BIA may adjudicate a motion to reopen as a statutory motion even if it is filed more than 90 days after entry of the removal order upon a showing that the deadline merits equitable tolling.

A motion to reopen based on lack of notice can be filed at any time.

What if I was ordered removed without my presence at the hearing?

In Absentia Orders of Removal

There are two situations where individuals who were ordered deported, excluded or removed in absentia can reopen their cases:

(1) they did not receive proper notice of the hearing and/or the charging document (i.e., the Notice to Appear (NTA) or the Order to Show Cause (OSC)); and/or

(2) they did not appear at their hearing because of “exceptional circumstances” beyond the control of the respondent.

Proving Lack of Notice 

In determining whether the respondent establishes lack of notice, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to:

*respondent’s affidavit

*affidavits from family members and other individuals who are knowledgeable about the relevant facts

*respondent’s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress

*any prior affirmative application for relief or application filed with USCIS or prima facie eligibility for relief (to help establish an incentive to appear)

*previous attendance at immigration court hearings

*other circumstances or evidence indicating possible non-receipt

Filing the Motion to Reopen 

The motion should be filed with the immigration court having administrative control over the record of proceedings. 8 CFR §1003.23(b)(1)(ii).

What are motions to reopen generally based on?

In addition to motions based on changed country conditions or special rule motions for certain survivors of domestic abuse, common grounds for reopening include:

*ineffective assistance of prior counsel which prejudiced the case; and

*arguments that an individual is not/was not deportable as charged or is eligible for relief based on, i.e.:

  1. newly vacated convictions,
  2. changes in personal circumstances that impact eligibility for relief, o violations during the underlying proceeding that effected ability to challenge removability or apply for relief, or
  3. subsequently issued case law that affects removability or eligibility for relief.

NOTE:  if an individual seeks reopening to apply for relief from removal, the motion must include the relief application and supporting documents and should demonstrate that the person is prima facie eligible for the relief sought. 8 C.F.R. §§ 1003.2(c)(1); 1003.23(b)(3).

Timing for Filing the Motion to Reopen

A motion to reopen based on lack of proper notice can be filed at any time. INA §240(b)(5)(C)(ii); INA §242B(c)(3)(B) (preIIRAIRA). This also means that a motion may be filed even after a person has departed the United States. See Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009).

Filing Fees 

There is no fee for a motion to reopen if the basis for the motion is lack of notice in removal or deportation proceedings.

Automatic Stay of Removal/Deportation

An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. In deportation cases, the stay remains in effect during the appeal to the Board of Immigration Appeals (BIA or Board). The BIA takes the position that for removal cases, the automatic stay does not remain in effect during the appeal process.

It is important to exercise caution and consult with an immigration lawyer prior to fling a motion to reopen, especially considering you may have only one opportunity to reopen your case.

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