Deportation Defense Motion to Reopen 

 

 

If you lose your immigration court case, you may be eligible to file a motion to reopen or reconsider your case. A motion to reopen your case is based on new facts that were not previously available, while a motion to reconsider is based on an incorrect application of law or policy.

 

Motion to Reopen Based on New Facts or Change of Law and Ineffective Assistance of Counsel

 

A motion to reopen under the general statute, 8 U.S.C. § 1229a(c)(7), allows you to ask either the Immigration judge (IJ) or the Board of Immigration Appeals (BIA) to review new material facts which were previously unavailable, and could not have been available, in order to vacate the removal order. Here are some common examples of when a motion to reopen can be used under the general statute:

 

 

• Your prior attorney committed ineffective assistance which prejudiced your case and resulted to a denial of your case;
• You are no longer removable, or you are now eligible for relief, because your criminal convictions have been vacated;
• There were procedural violations during your court proceedings which prevented you from challenging removability or being able to apply for relief; or
• There has been a change in law after your hearing which affects removability or eligibility for relief. 

 

 

Motion to Reopen Based on Changed Country Conditions or Domestic Abuse

 

In addition to the general statute, there are also two separate statutes which allows you to file a motion to reopen if:

 

 

• You are seeking asylum and fear return to your home country because of changed country conditions; or
• You are a qualifying survivor of domestic violence. 

 

 

Sua Sponte Motion to Reopen

 

Lastly, the IJ or the BIA can reopen your case under their Sua Sponte authority if you could show exceptional circumstances. Some examples where the IJ or BIA found exceptional circumstances and granted a sua sponte motion to reopen include:

 

 

• The respondent was the beneficiary of an approved or pending I-130 visa petition filed on his behalf by his U.S. citizen spouse or child;
• The respondent had DACA status, was the beneficiary of an approved I-130 visa petition by his U.S. citizen spouse and was eligible to adjust status to a lawful permanent resident;
• Humanitarian reasons such as serious medical condition of the respondent or close family members, significant ties in the U.S., and lengthy residence in the U.S.;
• The respondent was granted a conditional U nonimmigrant visa (U-visa);
• The respondent was granted a VAWA self-petition; or
• The respondent had a fear of return to her home country because of past abuse from her partner;

 

 

Motion to Reopen and Rescind an In Absentia Removal Order

 

 

If you are scheduled to appear before an immigration judge, but fail to appear, the Immigration Judge can issue a removal order against you in absentia (in your absence) which subjects you to deportation. In order to reopen your case and cancel (rescind) the removal order, you must file a motion to reopen with the Immigration Judge within 180 days after the removal order, or within 180 days after the discovery of the removal order assuming you exercised due diligence to follow-up with your case. 

 

 

These are the three grounds in which you could seek a motion to reopen and rescind an in absentia removal order:

 

 

• Motion to Reopen and Rescind Based on Lack of Notice – if you did not receive proper notice of your scheduled hearing, and as a result, you did not appear, you can seek a motion to reopen.

 

 

• Motion to Reopen and Rescind Based on Exceptional Circumstances – if you received proper notice, but failed to appear because of exceptional circumstances beyond your control, such as battery or extreme cruelty to you, your child or parent, serious illness to you or the death of your spouse, child, or parent or other compelling reasons. 

 

 

Limits on Motions to Reopen and Filing Deadline

 

 

Generally, a respondent (i.e. person filing the motion) may file only one motion to reopen proceedings and the motion must be filed within 90 days of the date on which the final administrative decision was rendered in the proceeding sought to be reopened. 

 

 

Exceptions to the 90-day filing Deadline and One-Motion Rule

 

 

Motions to Reopen based on changed country conditions or domestic violence are not subject to the one-motion and 90-day deadline rule. 

 

 

Motions to Reopen and Rescind an In Absentia Removal Order can be filed within 180 days of the removal order.

 

 

Equitable Tolling is permitted if you are prevented from timely filing because of ineffective assistance of counsel, deception, fraud, or error. For example, if your attorney did not advise you of the right to file a motion to reopen after your case was denied, and you only learned about this after the 90-day deadline after consulting with another attorney, the time gap from the date of the decision to the discovery of the error is tolled which allows you file a motion to reopen even after 90 days, or 180 days (if applicable) has passed. 

 

 

Having a removal order issued against you can be very scarry and nerve-wrecking since you become subject to deportation, which means you could be separated from your family and friends, lose your livelihood, and for asylum seekers, be faced with suffering harm upon your return. At Boyadzhyan Law, we understand what is at stake, which is why we go the extra mile to make sure the motion is accurately and competently prepared and positioned for success.

 

 

Contact Boyadzhyan Law for a free initial case evaluation. (818) 572-4100 | info@boyadzhyanlaw.com