It is important to advise the reader that filing a motion to reopen is no easy task. Motions to reopen is a very complex area in the practice of immigration law.
A motion to reopen removal proceedings in immigration court may be based on one of several reasons. First, the person did not receive proper notice of the immigration court proceedings, and s/he was ordered deported in absentia. Second, the individual failed to attend an immigration court hearing due to exceptional circumstances and was ordered deported. Third, the individual was ordered deported after a trial; however, since the deportation order new evidence has become available that warrants new consideration of the alien’s case.
What is a Motion to Reopen?
Motion to Reopen is a special petition filed with the immigration court to reopen an old immigration case in order to go back to immigration court and apply for an immigration relief, if available.
Who may file Motions to Reopen?
Motions to reopen may be made by either party or by the court on its own motion. 8 C.F.R. §1003.23(b). A party however, must move to reopen within 90 days of a final administrative order, with certain exceptions. The motion to reopen must be in writing and filed with the court having administrative control over the record of proceedings. 8 C.F.R. §1003.23(b)(1)(i)-(ii).
In each of these scenarios it is absolutely crucial to have an experienced and knowledgeable attorney with excellent writing and research skills prepare the Motion to Reopen. In most instances, the individual, who has been ordered deported, is permitted only one motion to reopen; therefore, it is exceedingly important to get it right the first time.
In Absentia Motion to Reopen
When a person fails to attend an immigration court hearing, the immigration judge will order the individual removed. Oftentimes, the person fails to attend the immigration court hearing because s/he never received the notice of the hearing date. Perhaps the individual changed addresses recently. Maybe US Citizenship and Immigration Services made a mistake and sent the notice to the wrong address.
Either way, if the individual proves that s/he did not receive notice of the hearing in accordance with INA § 239(a)(1) or (2), the case should be reopened. INA 239(a)(1) requires that the Notice to Appear state the time and place at which the immigration court hearing will be held. INA 239(a)(2) states that a written notice of change in time or place of proceedings must be provided to the individual or the individual’s counsel of record via mail or personal service. Oftentimes it is important to review the immigration court file regarding the deportation order before filing the motion to reopen. This will allow the attorney to better understand why the individual did not receive the notice of hearing, and the attorney will be able to prepare a more persuasive motion to reopen.
If the deportation order was entered in absentia, the filing of the motion to reopen stays the execution of the removal order automatically. This means that filing the motion to reopen prevents immigration officers from coming to your house and deporting you. A motion to reopen an in absentia removal order does not require a fee. 8 CFR §1003.24(b)(2)(v). If the individual did not receive proper notice of the hearing, the motion to reopen may be filed at any time. However, if the motion to reopen is because the individual was unable to attend the hearing due to exceptional circumstances, the motion to reopen must be filed within 180 days of the removal order.
Motions to reopen based on failure to attend due to exceptional circumstances beyond the control of the individual are very specific motions. Generally, the individual must prove that s/he was unable to attend the hearing because s/he was seriously ill, a death in the family occurred or a severe accident occurred while traveling to the immigration court. Other reasons may be sufficient to warrant a reopening, but the reason must not be any less compelling.
Motion to Reopen Based on New Evidence or Facts
Sometimes, after an individual is ordered deported, new facts or new evidence emerges which makes the individual eligible for a form of relief from deportation. In these cases, the motion to reopen must be filed with the Immigration Judge or the Board of Immigration Appeals depending on which has administrative control over the proceedings. The individual must prove to the court that the new evidence sought to be offered is material and was not available and could not have been discovered or presented at the earlier hearing. In these cases, the motion to reopen must be accompanied by the appropriate application for relief.
All motions to reopen should be handled by an experienced and knowledgeable attorney with excellent writing and research skills. The motion must contain specific language and persuasive legal arguments.
This is when both parties agree to reopen the case and file jointly. Both parties would be the individual and an Attorney from the Office of Chief Counsel.
The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.
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