By Robert L. Reeves & Elsie Hui Arias, Esq.
In Part I last week, we discussed how to reopen a case before an immigration judge (IJ) where an individual was ordered deported in absentia. This week we are addressing how one can reopen their case before the IJ where new facts have arisen and they intend to seek new relief in court proceedings.
Motions to reopen are based on factual grounds and must be supported by compelling evidence that: (1) is material, (2) was unavailable at the time of the original hearing, and (3) could not have been discovered or presented at the original hearing. This differs from “motions to reconsider” which are based solely on legal grounds. For example, a respondent whose application for cancellation of removal was denied and who subsequently learns that a qualifying relative has been diagnosed with a serious medical condition can ask the IJ to reopen a case to consider this new material evidence. Another example may involve a criminal alien with a conviction that served as the basis of his removal order but has since been vacated.
Under the Illegal Immigration and Immigrant Responsibility Act (IIRIRA)), effective April 1, 1997, respondents in removal proceedings (formerly referred to as “deportation”) are subject to numerical (one motion to reopen) and temporal limitations (must file motion to reopen within 90 days of IJ’s final order). Exceptions to the 90-day deadline include ineffective assistance of counsel, changed country conditions (for purposes of asylum), and joint stipulation by the Department of Homeland Security to reopen a case for compelling reasons.
It is important to note that, under Matter of Shaar by the Board of Immigration Appeals (BIA), immigrants who overstay their voluntary departure order are barred from reopening their proceedings, even if they seek reopening within 90 days of the IJ’s final order. Individuals with voluntary departure orders must file their motions to reopen before they are required to depart the U.S.; the motion will extend the voluntary departure order for respondents within the jurisdiction of the Ninth Circuit Court of Appeals.
The filing of a motion to reopen generally does not automatically stay the execution of a removal or deportation order; the alien respondent must separately ask the IJ for a temporary order to halt removal proceedings. If the IJ reopen a respondent’s case, the previous removal order will be vacated and the alien can proceed with their specific request of relief in the reopened proceedings.
Next week, in our last article of this three-part series on motions to reopen, we will discuss filing motions to reopen before the BIA. Due to the legal and procedural complexities in reopening the case of an immigrant who has ordered deported, it is highly advisable to consult an immigration attorney that is knowledgeable and experienced in removal defense.