A request to reopen any case in which the Board has made a decision can make:
- The party affected by the decision;
- Party’s representative: In this case, a Notice of Entry of Appearance as Attorney or Representatives Before the Board of Immigration Appeals (Form EOIR-27) has to be attached with the motion;
- Department of the Homeland Security (DHS);
No matter who files the motion to reopen, it has to be in the written form. More about the content of the motion, we will discuss below.
The Board owns the discretion to grant or deny a motion to reopen. It can decide to deny the motion even if the party moving has made out a prima facie case for relief. It means that the applicant can establish the evidence to justify a verdict in his or her favor, and the other party does not refute such proof.
To file a motion, a person has to demonstrate the existence of new evidence by stating new facts, proving them at the hearing, and supporting them with affidavits or other evidentiary material. Usually, those are evidence that was not available and could not have been discovered or presented at the former hearing.
Moreover, a person to whom the right to apply for such relief was fully explained to, and if he or she had an opportunity to apply at the former hearing, will not be allowed to file a motion to reopen. This would be possible only if the relief asked for was based on circumstances that have arisen after the hearing.
Besides, an alien may obtain a motion if he or she demonstrates the statutory eligibility for such relief before the entry of the administratively final order of deportation.