What Is A Motion To Reopen?
A motion to reopen is a request after an adverse decision has been made – a deportation order has been issued by an Immigration Judge or the Board of Immigration Appeals.
The motion asks the court to consider previously unavailable evidence. If the motion is granted, the existing order is vacated.
When Can Motions To Reopen Be Filed?
After an immigration court hearing has ended, immigrants have the right to challenge a judge’s decision to deny them relief and order their deportation. The most common route is to file an immigration appeal.
However, filing an appeal is not always your best approach to starting over. In some cases, your situation would be better served by filing a motion to reopen your case.
There are three situations which may allow you to reopen your deportation case in immigration court.
1. In Absentia Order Of Deportation
If you miss a hearing at immigration court, the immigration will order you to be deported in your absence. This is called an in absentia deportation order.
Sometimes immigrants fail to show up at immigration court because they never received the notice of the hearing date. For example, maybe the government’s letter was mailed to the wrong address. Perhaps you moved and gave your new address to the immigration court, but the judge’s secretary sent the notice to your old address.
2. New Evidence Or Circumstances
It is not uncommon at the close of removal proceedings, after the immigration judge has ordered an immigrant to be deported, new information emerges. This evidence can open the door for you to seek relief from deportation if it did not exist at the time of your immigration trial.
This is not as simple as it appears. The Immigration Court Practice Manual, which sets forth the guidlines for immigration court motions, makes clear that you have to prove the new evidence could not have been discovered and presented at your earlier hearing. This is referred to as acting with due diligence.
If you knew – or should have know about the evidence – but you did not take any action, you are not entitled to use this reason as the basis for a motion to reopen.
3. Exceptional Circumstances
With these types of reopening motions, you have to show something exceptional, beyond your control, kept you from showing up at your hearing. For instance, maybe you became seriously ill, a family member died. or you had a car accident on the way to court.
None of these reasons guarantee your case will be reopened. But if you’re fighting against being deported, filing a motion to reopen may give you a second chance to win your case.
As a result of judicial preference for case finality, immigration judges are not inclined to grant these motions. As a result, given the rigid due diligence requirements, winning such motions is not a simple.
Are There Time Limits For Filing Motions To Reopen?
In general, motions to reopen must be filed within 90 days of the final court decision or deportation order.
There are a few exceptions.
- If you were issued an in absentia order of removal but your absence from court that day was caused by exceptional circumstances – i.e., you were hospitalized – you are given 180 to file your motion.
- If your case involved seeking asylum protection, and your home country has recently experienced changed conditions since your last hearing, there is no time limit to file a motion to reopen.
- Likewise, if your case involved a claim for relief under cancellation of removal under the violence against women provisions, there is no time limit for filing.
- Or if the government attorney agrees with your request to file a motion to reopen, and agrees to filing a joint motion to reopen, there is no time limit on filing your motion.
There is also an exception – called “equitable tolling” – if you were prevented from filing a motion to reopen due to deception fraud, or error. Again, if you knew or should have known what was occurring, but did not take any action to correct such problems, you are not eligible to claim equitable tolling to excuse your late filing.
Reopening claims based on the ineffective assistance of an previous attorney, referred to as Lozada motions, if successful, enable equitable tolling. Essentially, immigrants must show that not only their prior lawyer failed to adequately represent them, but also their case was prejudiced by the flawed assistance.
Differences Between Motions To Reopen And Motions To Reconsider At Immigration Court
Many clients confuse motions to reopen with motions to reconsider. Although similar in effect, there are major distinctions.
Motions to reopen are based on factual grounds. Primarily, these motions are centered upon the discovery of new evidence or changed circumstances.
Motions to reconsider are based on legal grounds. These motions focus on errors in the application of law, policy, or procedure made by the immigration judge, leading to a negative court decision.
The two types of motions are not incompatible. Often motions to reopen and motions to reconsider are combined. Even though each motion is assessed separately, combining them can strengthen the request for a new hearing.
Does Filing A Motion To Reopen Prevent Deportation And Removal?
While you are waiting for a decision on your motion to reopen, you can still be deported. In other words, the order to remove you from the United States remains in effect.
There is one caveat. If your request for reopening pertains to a removal court order that was made in absentia, the order is temporary “stayed” – meaning the order is temporarily halted until the immigration court makes a decision. If you lose your motion to reopen, the deportation order is reinstated.
What Happens When A Motion To Reopen Is Granted?
If your motion is granted, the judge will allow you to present your case. A new decision will be issued after you are given a new day in court, and the judge evaluates the law or facts it failed to consider in the earlier proceedings.
Even when your motion is granted, it does not guarantee the result in your case will be reversed. However, it will give you a second chance to present your case in full and the opportunity for success.
If you’re serious about figuring out if a Motion To Reopen
can help you win your immigration case . . .
Let’s schedule your Strategy And Planning Session today.