By Attorneys Robert L. Reeves & Elsie Hui Arias
In our last two articles, we detailed the parameters of reopening removal proceedings before an immigration judge (IJ). In part three of our series on motions to reopen, we will discuss reopening cases before the Board of Immigration Appeals (BIA).
The BIA, which is located in Falls Church, Virginia, reviews appeals of IJ decisions in removal/deportation cases. The eleven board members of the BIA do not conduct courtroom proceedings — they decide appeals by conducting a “paper review” of cases and only on rare occasions hear oral argument. The BIA can also reopen a case in which it issued a final order of deportation/removal to allow an alien respondent to seek new relief in proceedings before an IJ.
Similar to reopening cases before an IJ, the alien respondent must demonstrate that new evidence has arisen in their removal/deportation case 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. The alien respondent must also establish that they are eligible for the new relief requested with the proper applications and supporting evidence. The regulations only permit one motion to reopen and provide that the motion must be filed within 90 days of the BIA’s final order. Exceptions to these restrictions include ineffective assistance of counsel, changed country conditions (for purposes of asylum), joint government stipulation, and BIA sua sponte reopening for extraordinary cases. Generally motions to reopen do not trigger an automatic stay of removal so a separate request for stay should be filed. An alien subject to a voluntary departure order must also file their motion to reopen before their departure date to avoid Matter of Shaar consequences.
If new material facts emerge while a direct appeal of an IJ decision is pending with the BIA, the alien respondent can file a motion to remand with the BIA. The BIA will ascertain whether there is sufficient evidence for new relief but cannot make a decision on the application for relief itself. If the BIA finds that the respondent has persuasively made a prima facie claim for new relief, it will remand the case back to the IJ.
An alien respondent can appeal the BIA’s denial of a motion to reopen to the circuit court of appeals. The circuit court which hears the appeal depends upon the jurisdiction in which the original immigration court is located, e.g., an alien ordered deported in California must appeal their case to the Ninth Circuit Court of Appeals, while aliens ordered deported in Texas file their appeal with the Fifth Circuit. The petition for review must be filed within 30 days of the BIA’s decision.
As we have detailed in the last few weeks, motions to reopen are an excellent mechanism allowing immigrants who have been ordered removed to obtain a second opportunity to seek relief in proceedings before an IJ. Due to the legal and procedural complexities in reopening the case of an immigrant who has been ordered deported, it is highly advisable to confer with an attorney that is knowledgeable and experienced in removal defense.