Understanding Motions to Reopen
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Do you need a fresh start? Learn about motions to reopen and restart legal proceedings. Get informed and take action now!
When can a motion to reopen be filed?
Generally, the Immigration Judge (IJ) or the Board of Immigration Appeals (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, if it is a joint motion, a sua sponte motion, or under other limited circumstances.
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:
- 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
- They did not appear at their hearing because of “exceptional circumstances” beyond the respondent’s control.
Proving Lack of Notice
In determining whether the respondent establishes a 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 the following:
- 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, which has 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.:
- Newly vacated convictions,
- Changes in personal circumstances that impact eligibility for relief, or violations during the underlying proceeding that affected the ability to challenge removability or apply for relief, or
- 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 a motion may be filed even after someone departs 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 a 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 the 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), only if the removal order was in absentia. In all other cases, a separate motion to stay must be filed. The stay remains in effect while the motion is pending.
It is important to exercise caution and consult with an immigration lawyer before filing a motion to reopen, especially considering that you may have only one opportunity to reopen your case.
A successful motion to reopen can grant individuals a fresh start and the opportunity to present their case in front of a judge. It is important to act quickly, gather all necessary evidence, and consult with an experienced attorney before filing a motion to reopen your closed immigration case.
Contact an Immigration Lawyer
If you believe you may qualify for a motion to reopen, it is important to consult with an experienced immigration lawyer who can help assess your case and determine the most effective strategy for reopening your case. With the right legal representation, you can increase your chances of success and avoid potential pitfalls in the motion to reopen the process.
At The Law Office of Tatiane M. Silva, P.A., we have extensive experience handling motions to reopen and can provide you with the skilled representation you need. Our team of knowledgeable deportation defense attorneys understands the complexity of removal proceedings and can guide you through every step of the process.
Contact us today to schedule a consultation and discuss your options for reopening your immigration case.
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