In immigration law, not every decision will go the way you want it. But that doesn’t mean that every decision with negative consequences in your case is without recourse. There are several avenues that may be available to you, including the ability to file a motion to reopen. But what is this motion, what purpose might it serve, and how can you go about filing a motion of your own?
Let’s say you filed a petition or application with United States Citizenship and Immigration Services (“USCIS”) and it was denied, what can you do? You can re-file a new petition, or file a motion to reopen or reconsider the petition that was denied. The motions can be filed either separately or together depending on the circumstances of the case. A motion to reopen needs to explain any new facts and be supported by evidence that was not previously included. A motion to reconsider must be supported by other case law showing that the decision was based on an incorrect application of law or USCIS policy. Either motion must be submitted within 30 days of the decision, unless the delay was for a reasonable period of time and the reason was beyond the control of the applicant. These motions are filed via a specific form.
While an immigration judge does not have the power to review certain petitions that only the USCIS can adjudicate, there are other types of motions that can be filed when someone has already been placed in removal proceedings.
It’s first critical to understand the difference between an appeal and a motion to reopen. Although the effect of these requests can sound similar, there are distinct differences. An appeal is typically a request made to a higher authority than the one with which the original decision was made. For example, once the immigration judge (“IJ”) enters an order of removal, the respondent has thirty days to file a notice of appeal with the Board of Immigration Appeals (“BIA”) to review the IJ’s decision. If no appeal is filed, the decision becomes final. Similarly, if the BIA agrees with the IJ, you may appeal at a higher court by submitting a petition for review with the Ninth Circuit Court of Appeals.
On the other hand, a motion to reopen is a request made after an order of removal has been entered. These motions are typically limited in timing of filing and to one motion to reopen filed. They allow the IJ or the BIA to consider evidence that was previously unavailable. Some reasons to reopen are because of ineffective assistance of counsel, change in circumstances that impact eligibility for relief, subsequently issued case law that affects removability, or some violation of the underlying proceeding that affected the outcome of the case.
Generally, the motion to reopen must be received by either the IJ or BIA (depending who last touched the case) within 90 days of the date of the entry of the final order of administrative removal. If a respondent was ordered removed and did not show up to court because she never received notice, there is no time limit to file a motion to reopen. But, a similar motion to reopen that is a motion to rescind an order of removal for failure to appear may only be filed with the IJ and must be filed within 180 days if claiming exceptional circumstances. If a motion to reopen is based on domestic violence grounds for certain battered spouses, children, or parents of abusive US citizens or permanent residents, the motion to reopen must be filed within one year of the final order of removal, absent extraordinary circumstances. If the Department of Homeland Security agrees to join in a motion to reopen, that motion is not limited in time. An IJ or the BIA can always elect to reopen sua sponte, or on its own discretion.
A motion to reopen is distinguished from a motion to reconsider where instead of requesting consideration of new facts that exist, the requester is asking the IJ or BIA to take another look because the decision was made incorrectly due to misapplication of law or fact. A motion to reconsider must filed within 30 days of the final order of removal.
In essence, the motion to reopen in immigration court can include a review of the decision that confirms whether or not that decision was lawful and made in good faith. In some cases, it can function as a sort of “confirmation” for the decision by the immigration court. The issues here can be complicated. A motion to reopen does, of course, require that a decision has already been made in immigration court, which means that even those who feel that their case has not been properly adjudicated will have to wait until a decision is made to consider an action like a motion to reopen. A motion to reopen won’t simply happen at any step in the legal immigration process—instead, it’s intended as a safeguard to ensure that the law has been properly carried out already.
That means that a motion to reopen in immigration court is usually a method of last resort for some, rather than first resort. Those who have already gone through the proper channels and found that they have been “ordered removed” may have a case to motion to reopen—but before this occurs, it likely won’t have an impact on the overall process. That means that in certain cases, patience will be required.
The motion to reopen in immigrant court or the BIA can be a difficult journey. It means that this journey starts with a decision that does not work out in your favor—and in order to get a successful motion in place, you will have to provide evidence that the decision was wrongly made.
To get an understanding of what your case might require – and what your options might be if an immigration authority has ruled against you – contact Reeves Immigration Law Group and speak with one of our experienced attorneys who can inform you about your options when it comes to the U.S. immigration court process.