If a person wants to ask the Board of Immigration Appeals to reopen proceedings in which the Board has already rendered a decision to consider new facts or evidence in the case, he or she can file a motion to reopen with the Board.
The Board may at any time reopen a motion in any case where it has rendered a decision. Thus, on the other side, the Board cannot consider motions for the case that has never been before it. “Never before the Board” cases include both: appeals that were never filed and those rejected for a filling defect that was never remedied.
Here, we will address the eligible person that can file a motion, some specific characteristics regarding deadlines, other limitations, or content of the motion. If you find this process complicated, we strongly advise you to seek legal aid from a reliable lawyer.
Who can file a motion with the BIA?
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.
Content of the Motion to Reopen
There is no standard model for filing a motion before the Board. An applicant should not submit a motion on a Notice of Appeal (Form EOIR-26), which is used exclusively for the filing of appeals. But, there is some element that the motions have to contain. The motion should clearly include all the relevant information. The Board recommends that parties use captions containing the following material:
- Title (Example: “Respondent’s Motion to Reopen”)
- The full name (appears on the charging document) for each alien included in the motion
- The alien registration number (“A-number”) for each alien involved in the motion
- The type of hearing or adjudication underlying the motion (e.g., removal, deportation, exclusion, bond, visa petition)
- The adjudicator whose decision underlies the motion (e.g., the DHS officer, or the Board), where appropriate.
All motions must be made in writing, signed, and served on all parties. A motion must identify all persons included in the motion. Furthermore, the motion must state with particularity the grounds on which it is based and must identify the relief or remedy asked for by the moving party.
Limitations
To reopen your removal, you need to be aware that there are numerical and time limitations. This means that you cannot file motions to reopen as many times as you wish and based on the same grounds. The beneficiary may submit only one motion to reopen deportation or exclusion proceedings, whether before the Board or the Immigration Judge.
Also, since there are deadlines, a person is not supposed to wait long until he or she files a motion to reopen the case. A party has to file a motion no later than 90 days after the date on which the final administrative decision was given in the proceeding. Sometimes, a person’s situation may change years after receiving the deportation or removal order, and new facts can actually lead to the removal of the order.
