Motion To Reopen

Motion To Reopen

When a non-citizen has lost an immigration court case or has been ordered deported or removed from the U.S., the order of deportation is usually not executed by Immigration and Customs Enforcement (ICE) immediately. This can allow time to file a motion to reopen.

A motion to reopen is the first step in asking the Immigration Court or the Board of Immigration Appeals to look at new evidence in a case and consider rescinding the order of deportation or removal. A request for a stay of removal will often accompany such a motion.

It is common for a non-citizen to find out that he or she has been ordered deported in absentia, or in their absence. If the DHS provides evidence to the Immigration Judge that written notice was provided of a court hearing date, the Immigration Judge will ordinarily order deportation for someone who fails to appear at their scheduled court hearing. Often times, in absentia orders of removal or deportation occur as the result of sending a hearing notice to a mistaken address, or due to incorrect advice from a notario, or non-attorney adviser.

In such instances, a motion to reopen can be filed if there was a lack of proper notice. There is no time limit for filing such a motion when there was lack of proper notice.

A motion to reopen may also be filed after an in absentia order of removal in cases where there were “exceptional circumstances” for failing to appear, and the motion to reopen is made within 180 days. Exceptional circumstances might include a serious illness, or the death of a family member.

In cases not involving in absentia orders of removal, motions to reopen may be made while a case is pending on appeal at the Board of Immigration Appeals, or within 90 days of a final order of removal. In many cases, this 90 day window is actually narrower because motion to reopen should also be filed prior to expiration of any period of voluntary departure.

Motions to reopen are based upon new material evidence not previously available that could make the non-citizen eligible for relief from removal in Immigration Court. One such example of new evidence could be marrying a U.S. citizen, which might allow that person to apply for legal residence based on the marriage. In asylum cases, changed country conditions also serves as a ground for filing a motion to reopen.

Other types of motions to reopen include “Lozada” motions, which are based on new evidence that was not previously available due to an error or oversight by the previous attorney in not submitting or requesting material evidence at the original hearing. In some cases, this may be grounds to toll the 90-day time period to file a motion to reopen.

Joint motions to reopen may also be an option, but they require agreement of the DHS/ICE, so ordinarily sympathetic facts must be involved, such as in cases involving minors, or where a family may be severely affected. Another type of motion to reopen is the Sua Sponte Motion to Reopen, which is really a suggestion for the Court to reopen on its own motion. The Immigration Judge or Board of Immigration Appeals may reopen Sua Sponte where new compelling, exceptional circumstances would warrant the Court to reopen on its own motion.

The jurisdictional, legal, and evidentiary requirements involved in all these types of motions to reopen are often complex, so knowing which type of motion to file, when to file, and what evidence to include is critical.

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