Introduction
Those who experienced being granted with removal order or deportation may think that they don’t have any chance to return or remain in the United States.
There are two possibilities for individuals who have cases in immigration court in the United States. They can commonly file one motion to reopen and one motion to reconsider. Also, those two motions can be submitted at the same time.
Here, we will present you with a statutory mechanism that will allow you to ask the immigration judge to reverse the order. It is the motion to reopen that you can file in limited circumstances, such as the existence of new evidence that was not accessible to you at the prior hearing.
You may find the process complicated due to deadlines that have to be handled carefully since missing some of them can cost you a right to appeal, and because of the many documents that you need to prepare. So, besides learning about how to win your motion, it is essential to note that you need to find a trustworthy and reliable immigration lawyer that will provide you with the necessary legal aid.
What are the motions to reopen a removal order?
Motions to reopen the removal allow immigrants who lost the case in the immigration court to bring new or modified facts to the immigration judge.
Thus, this new motion needs to be based on new facts. Usually, those are facts that the person wasn’t aware of, or the facts didn’t exist at the time of the original hearing. To bring the new case to the immigration court, a person needs to provide relevant evidence that will support documentation.
Here, the court will grant a new hearing to the person that claims that he or she can prove the new facts, supported by affidavits or other evidentiary material.
When and where to file the motion to reopen?
When to file the motion to reopen?
Motions to reopen are frequently used when there were:
- 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 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 orders 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 files:
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.
What should the motion to reopen include?
Motions to reopen should include:
- A cover letter
- An entry of appearance: Form EOIR-27 (Board of Immigration Appeals); Form EOIR-28 (Immigration Judge);
- A motion, which consists of all possible legal bases for reopening and new facts:
- Introduction, a statement of events, a section outlining the standard for reopening, legal arguments, and a conclusion stating the relief requested.
- State whether the order has been or is the subject of any judicial proceeding. Also, it has to indicate whether it has been or is the subject of any criminal proceedings. If so, the motion must provide additional information and/or include a statement from the movant regarding that proceeding.
- An exhibit list and exhibits, including:
- A copy of the existing removal order;
- Any application for relief that would be found in reopened proceedings, along with any supporting documents
- Evidence of compliance with Matter of Lozada, if making an ineffective assistance of counsel claim;
- Proof to support equitable tolling of the filing deadline, including proofs of the extraordinary circumstances that prevented timely filing and diligence;
- A proposed order if seeking reopening from an immigration court;
- A filing fee or fee waiver application, unless the only form of relief found in opened proceedings is asylum;
- A certificate of service.
Deadline for filing the motion to reopen
If you think that you are eligible to file the motion to reopen, you must be aware of the strict deadline. You have to file a motion within 90 days of the date of entry of a final administrative order of removal. This means that an immigration judge or BIA needs to receive your motion within this deadline.
However, there are few exceptions when this deadline is extended, and this includes:
- DHS motions: There is a possibility that Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) agree to file a joint motion to reopen. If the parties file jointly, there is no limitation of 90 days. For instance, this will be the case if an alien has strong evidence of health. If such circumstances make it likely that a motion would be granted, the government would instead simply decide to reopen a case than expend time and energy opposing it.
- Changed country conditions: The application for asylum or withholding of removal is based on changed country conditions. This includes situations that couldn’t be discovered or presented at the initial hearing. Also, there is no time limit for filing the motion.
- Domestic violence: Battered spouses, children, and parents if the motion subject to extreme cruelty or exceptional and extreme hardship to a relative being a U.S. citizen or holding a green card, and cancellation of removal application accompanies the motion- also, without limitation in time.
- An “in absentia” order of removal: a motion to reopen could be filed within 180 days or, at any time when the sole reason the applicant failed to appear at the hearing is that he or she was in state or federal custody;
- Other basis: When the government agrees to file a joint motion to reopen for some reason. In this case, there will no be a time limit.
The deadline of 90 days or the 180 days when applicable, may sometimes be “tolled.” This pause can occur during any time when the immigrant is prevented from filing a motion to reopen due to deception, fraud, or error. This suspension of the running time is called “equitable tolling.” To apply it, the applicant has to perform with due diligence in finding the deception, fraud, or error.
Immigrants whose lawyers engaged in fraudulent or erroneous conduct can take advantage of the equitable tolling doctrine.
To persuade an ineffective assistance of counsel claim, you must show two things:
- That your lawyer failed to perform with sufficient competence, and
- His or her poor performance.
Also, you are required to show that your lawyer complied with the procedural requirements of Matter of Lozada.
In the event of tolling, the time period begins running again once the immigrant meets with new counsel to discuss his file.
Evidence that will support motions to reopen
Evidence that you will bring to the hearing has to support new evidentiary material you want to introduce. The usual form to use is affidavits and official reports about changed conditions in your home country.
You must show that the previously unavailable material evidence couldn’t have been discovered or presented at the initial hearing. If requisite, the motion should also be followed by a completed application for relief, such as an asylum application.
Deportation order while the motion is pending
If you file a motion to reopen, it doesn’t change the underlying deportation or removal order. Therefore, it is possible to be deported while you are waiting for the court’s response. But, if the removal order was made “in absentia,” it will automatically stay by a motion to reopen.
Also, people asking to stay in the country on humanitarian grounds (as battered spouses and children) may qualify to have their removal orders remained.
My motion to reopen is (not) granted
After filing a motion to reopen, there are, of course, two possible situations: to be allowed to present new facts or being denied to do so.
If the immigration court grants a motion to reopen, the applicant will have an opportunity to present the new evidence at the next hearing. Afterward, the immigration judge will rule on the case based on the new proofs presented.
Generally, a petitioner can file only one motion to reopen, but there are few exceptions when you can repeat the motion and appeal to the court’s decision. This is the case for “in absentia” removal, as we mentioned previously.
If you would like to contest the denial of the motion to reopen, you can appeal to the Board of Immigration Appeals. If the BIA denies it, an appellant can proceed with the matter to the United States Court of Appeals.
If your motion has been denied or the case has been lost, you should reach your immigration lawyer immediately since there is a limited time period in which an immigration court case can be requested. Otherwise, you may fail to keep your right to appeal from losing it.
