Motions to reopen are usually filed either with the Immigration Court or the Board of Immigration Appeals. Where the immigrant will apply his or her motion will depend on which of these two entities last had contact with the case.
Here, we will overview how to file a motion with the Immigration Court.
By filing a motion to reopen, a person asks the Immigration Court to open proceedings once again after the Immigration Judge has made a decision and examine new facts or evidence in your case.
Before filing the motion, and besides respecting the deadlines and number limitation, you have to ensure that you followed specific rules, as well. Here are some documents that you have to file with the Court:
- In the package of your documents, you will have to label the cover page of motion with “A MOTION TO REOPEN.”
- You do not have to file a motion by yourself. Instead, your lawyer who represents you can file a paper Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court, along with your motion.
- You will have to file an Alien’s Change of Address Form (EOIR-33/IC) with the motion. This will ensure that the Immigration Court has your current address.
- You will have to pay a filing fee or fee waiver, depending on the nature of the motion.
- If your motion is based on eligibility for relief, you have to accompany it with the application’s copy for that relief and supporting documents.
Now when you learned what documents are required, it is equally important to pay attention to what the motion should contain.
In your motion to reopen, you must state all the new facts that are reasons to file it. This is evidence that you will prove at a reopened hearing if the Court grants the motion. Also, you will be required to support the motion by affidavits or other evidentiary material. Here, you will have to convince the Immigration Judge that the facts provided are material and that for some reason, those were not available and could not have been discovered or presented at an earlier stage in the proceedings. Otherwise, a motion to reopen will not be granted.
In case that a motion to reopen is based on an application for relief, the Immigration Judge will not grant it if it appears that your right to apply for that relief was fully explained and that you already had an opportunity to apply for that relief at an earlier stage in the proceedings. On the other side, the judge will grant the motion if you asked the relief based on circumstances that have arisen after that stage of the proceedings.
As a general rule, you have to file a motion to reopen within 90 days of an Immigration Judge’s final order. Upon receiving it, the judge will have ten days to respond to it.
While you can file only one motion to reopen, there are few exceptions to this rule:
- Changed circumstances — If the grounds for a motion to reopen are a request for asylum, protection under the Convention Against Torture, or withholding of removal, and it is based on new circumstances. In this case, the motion must contain a detailed description of the new facts that consist of those circumstances and articulate how those circumstances affect your eligibility for relief.
- In absentia proceedings — If the Judge decided at the hearing where you weren’t present, but the reason was, you were never informed about it by someone’s mistake.
- Joint motions — When all parties agree to file a joint motion to reopen.
- DHS motions — the Department of Homeland Security is not subject to time and number limits. It is subject to the limits for cases brought in deportation or exclusion proceedings, except if the basis is fraud in the prior proceeding or a crime that would support termination of asylum.
- Other exceptions — may be created under special statutes, case law, directives, or other exceptional legal circumstances. Also, the Immigration Judge may reopen proceedings at any time on his or her own motion.
If you file a motion to reopen before the deadline for filing an appeal, it does not stay or extend the deadline. Once an appeal is filed, the Immigration Judge no longer has jurisdiction. This means that you should not file the motion to reopen with the Immigration Court after an appeal is taken to the Board since the Court might lose jurisdiction over your case.