By Attorneys Robert L. Reeves and Eric R. Welsh
An order of deportation or removal can seem to loom like a storm cloud over the head of an alien that remains in the United States after the Immigration Judge issues the order. However, in many cases, there is hope to clear that cloud so that the alien can receive permanent resident status in the United States. In some cases, immigration proceedings can be reopened and the alien may be permitted to apply for new relief.
Many aliens who remain in the United States after they have been ordered deported or removed may later have a basis to apply for a green card that was not available when they were in Immigration Court. For example, an alien ordered deported who does not depart the United States might later fall in love and marry a U.S. citizen, or a visa petition from another family member may become current after several years of visa backlog. Generally, this alien cannot apply for a green card directly with U.S. Citizenship & Immigration Services without risking an immediate denial, and, potentially, detention and physical removal from the U.S. In order to remain in the United States and adjust to lawful status, the alien must seek to have his or her immigration case reopened. This can be done by filing a “Motion to Reopen” with the Immigration Court or the Board of Immigration Appeals.
Motions to reopen are subject to strict time and number limitations, although the laws and regulations do provide exceptions. In general, a motion to reopen must be filed within 90 days after a final administrative decision is rendered (i.e., 90 days after the Court enters an order of removal, or 90 days after the Board denies an appeal and affirms the order of the Immigration Judge). In addition, an alien is generally entitled to only one motion to reopen; if the motion is denied, no future motion may be made, even if based on different grounds.
However, the laws and regulations do provide exceptions to the “90 day” and “one motion” limitations in certain situations. For example, the time and number limits do not apply when the alien seeks to reopen in order to apply for asylum or withholding of removal based on changed country conditions in his or her native country. A motion to reopen to apply for a self-petition based on spousal abuse may be filed up to one year after entry of a final order.
Another important exception to the time and number limits applies to motions to reopen “in absentia” deportation or removal orders. “In absentia” orders are those entered by the Immigration Judge in the alien’s absence after the alien fails to appear at a hearing. If the alien’s failure to appear was caused by “exceptional circumstances” (like a traffic accident or serious illness), the motion can be filed up to 180 days after entry of the order. If the alien never received proper notice of the hearing, the motion can be filed at any time, even several years after the removal order is entered.
The “90 day” time limit may be “tolled” (in essence, put on pause) if the alien was prevented from timely filing a motion because of ineffective assistance of counsel. For example, if an alien’s attorney falsely tells the alien that a motion has been filed, the 90-day limit will not start running until the alien realizes that he has been defrauded by his attorney.
If more than 90 days have passed since entry of the final order, but none of the exceptions mentioned above apply, the alien may yet seek to have the case reopened by requesting that the Immigration Judge reopen the case “sua sponte,” or by seeking a joint motion to reopen with the Department of Homeland Security. Immigration Judges have authority to reopen a case “sua sponte,” or on their own initiative, at any time. Similarly, the time and number limits do not apply when the Department of Homeland Security agrees to join the alien in making a motion to reopen. Requests to the Immigration Judge to reopen “sua sponte” and requests to the Department of Homeland Security for a joint motion must be supported by highly persuasive evidence and arguments that would compel the Judge or the Government to forgive the alien’s failure to timely file a motion to reopen. Such motions are only granted in exceptional situations involving compelling equities.
A motion to reopen in order to apply for new relief must be accompanied by the application, proof of payment of all filing fees, and all supporting documents. If the basis of reopening is a claim that the Immigration Court proceedings were polluted by ineffective assistance of counsel, the motion must include extensive evidence to prove the ineffective assistance, including proof that a complaint has been filed against that attorney with the State Bar disciplinary body.
Any noncitizen seeking to adjust status or apply for relief after a deportation or removal order has been entered is well advised to consult with an experienced immigration attorney to assess the viability of a motion to reopen. Because motions to reopen are subject to strict time and number limitations, and because motions are granted sparingly and only upon good cause shown, an alien must take great care and effort into crafting a strong, correctly filed motion. If granted, the alien may be rewarded with permanent residency in the United States, and permanent relief from the fear of deportation.