Motion To Reopen
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When it comes to immigration law, few burdens are as great for a non-citizen as having removal or deportation ordered against them. A Motion to Reopen is a request to an Immigration Judge or the Board of Immigration Appeals to reopen and reconsider a case that has already ended. The purpose is to present new or changed evidence that would have had a significant impact on the original determination if it had been available at that time. A motion to reopen must be requested within 90 days of the final order of removal, exclusion, or deportation and must be done while the person is still in the United States. A person is allowed one motion to reopen. Exceptions to these limitations are if the person is applying for asylum, withholding of removal, or withholding of removal under the Convention Against Torture.
Exceptions may also be made if the order was done in absentia, meaning the person was not present at the hearing, or if the motion is filed jointly by the Department of Homeland Security and the individual seeking to have their case reopened. If the case is successfully reopened the person must present to the appropriate court evidence demonstrating why the outcome of their case should be different.
Most negative outcomes from U.S. Citizenship and Immigration Services or from an Immigration Judge can be appealed. With some exceptions, a denial from USCIS can be appealed to the Administrative Appeals Office.
Different branches of the AAO specialize in different types of cases. A case before an Immigration Judge that results in an order of removal can be appealed to the Board of Immigration Appeals.
Alternatively, a positive result from the Immigration Judge can be appealed by the Immigration and Customs Enforcement attorneys. An appeal to the BIA must be filed within 30 days of the decision of the Immigration Judge.
If the appeal to the BIA also results in a negative outcome a case can be appealed to the federal circuit court that has jurisdiction where the original decision of the Immigration Judge was made.
Does Filing A Motion To Reopen Prevent Deportation?
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.
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 days 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.
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