By Robert L. Reeves. & Nancy E. Miller
Being ordered removed from the United States is disheartening and frightening. Often, one disappointment follows another. After the immigration judge denies relief and orders deportation, an appeal can be filed with the Board of Immigration Appeals. Fear and sorrow can turn to joy if the Board reverses the judge and either grants relief or sends the case back to the judge to correct his or her error. If the Board upholds the judge’s denial, that decision can be appealed by filing a petition for review with the United States Court of Appeals. If the Court of Appeals dismisses the petition, more often than not, that is the final decision. While it is possible to file a petition for writ of certiorari with the United States Supreme Court, that court is not obligated to accept the case. In fact, the Supreme Court refuses to hear far more cases than it accepts.
Equally tragic is when the immigration judge grants relief and the government appeals that decision and the Board reverses the grant. The relief and happiness that the immigrant felt at the time of the grant is matched if not exceeded by the pain and fear experienced upon learning of the denial. It can feel like the end of the road.
It is no wonder that some immigrants stop looking for a way to obtain legal status. They feel they can not face another heartbreaking experience. However, no one should give up hope. Many things can happen that can breathe new life into the quest for lawful status in the United States.
In some instances, the passage of time itself may have created a form of relief for those who already have an existing deportation order. Their United States citizen child may have turned 21 and be eligible to file a petition for them. The priority date on a long ago filed petition from a parent or sibling may have become current. There may be some light at the end of the tunnel.
However, because the immigrant has an existing removal order, a complication arises. As a result of the deportation order, only the immigration judge can grant the application for adjustment of status. Therefore, the immigrant must go back to the court to seek this relief.
This process requires the filing of a motion to reopen the court proceedings. However, motions to reopen must, under most circumstances, be filed within 90 days of the issuance of the final decision (meaning 90 days from the Board of Immigration Appeals’ decision). More often than not, the ground for new relief arises after the 90 days has passed. There are some exceptions to the 90 day limitation rule. Some of those exceptions revolve around due process right to a full and fair hearing. As a result, an immigrant who received inadequate representation at their prior hearing may seek to have the case reopened. An alien represented by a non-lawyer (a “consultant” or “notario”) may file an untimely motion to reopen if the delay in filing was due to the fraudulent deceit by the consultant.
One other exception to the 90 day rule is if the DHS prosecutor (the Chief Counsel) agrees to join in the motion. This is called a joint motion to reopen and is not limited as to the time filed (or whether a motion was filed and denied previously). The request for this motion is not based on prior legal error. It is a purely discretionary decision on the part of the Office of Chief Counsel. A refusal to favorably exercise that discretion is not reviewable (meaning, it is not subject to appeal). Therefore, how the request is prepared is extremely important. Proper preparation of the written request with sufficient detail and supporting documentation is essential to get the best chance of success. With so much riding on the request, it is extremely important to seek the assistance of knowledgeable and experienced immigration attorney to prepare and submit the request for a joint motion.
Sometimes immigrants are placed into proceedings and ordered removed without their knowledge and after they have already left the United States. They only learn of the order when they try to obtain a benefit from the U.S. Consulate. In limited circumstances, it is possible to reopen a removal case when the alien is no longer in the country. However, that discussion is for another day.