When to file the motion to reopen?
Motions to reopen are frequently used when there was:
- Ineffective assistance of prior counsel;
- Arguments that an individual wasn’t deportable as charged or is eligible for relief based on:
- newly relinquished convictions,
- changes in personal circumstances,
- violations during the underlying proceeding,
- subsequently issued a case law that affects removability or eligibility for relief.
However, you cannot file a motion to reopen your case based on any of these grounds in the absence of the new or changed facts.
If you have more than one ground upon which to seek reopening, your attorney will not select one basis for reopening. Preferably, your legal representative will include all basis in one motion.
Generally, the argument section of a motion to reopen should begin with the most robust ground for opening and seeking reopening supplemented with alternatives.
Where to file a motion to reopen?
Usually, motions to reopen are filed either with the immigration court or the Board of Immigration Appeals. This depends on which entity last had contact with the case.
For instance, if an Immigration Judge ordered the removal, and a person didn’t appeal, the motion must be filed with the immigration court. If the individual previously appealed the Immigration Judge’s removal order to the Board of Immigration Appeals, the proposal must be filed with the BIA.
Similarly, if the individual has a petition for review pending, the motion to reopen must be filed with the Board of Immigration Appeals. But, note that the court of appeals will lose jurisdiction over the pending petition for review if the BIA grants reviewing as there will no longer be a final order for the court to consider.
Some exceptions to the general rule include motions to reopen filed:
a. After the BIA already has remanded the case to the Immigration Judge;
b. When the BIA dismissed the appeal for lack of jurisdiction or because it was untimely.
Here, the proper venue for a motion to reopen is the immigration court.