Who Can File a Motion To Reopen an Immigration Case?

Many immigrants who come to the U.S. do so to make a new life here. If they are facing a deportation order, their best option to remain in the country legally is to file a motion to reopen their case. This allows you to present new evidence in your immigration proceedings. You can only file this motion when the deportation order is final.

After an unfavorable decision on appeal, you may need to show compelling circumstances to maintain resident status in the country. Dealing with an administrative appeal can be complicated. A legal representative can help guide you through the process. Talk to an immigration lawyer in a city near you to get the best advice to get a favorable decision in your case.

Who Will Hear Your Motion to Reopen Your Case?

Appeals ask a different authority to review the administrative decision to deport you. For example, if the Citizenship and Immigration Services (USCIS) made the field office decision to deport you, the Administrative Appeals Office (AAO) will hear your appeal. However, if you file a motion regarding a USCIS decision, the USCIS will review it.

In addition to the motion to reopen, you can file a motion to reconsider. The motion to reconsider asks for a new decision because there was an incorrect application of law in your case.

If you requested an appeal, and it was either rejected or you abandoned it, you cannot file a motion to reopen your case. Talk to your experienced immigration attorney about the best options in your case.

What Are the Rules for a Motion To Reopen?

A proper motion to reopen your case must point out new facts and be supported by additional documentary evidence. You cannot simply resubmit evidence or rely on facts that you already reported. In addition, you must follow certain procedural requirements:

• Use form I-290B. The USCIS website contains the form and instructions for completing it.
• If the motion to reopen is based on your eligibility for relief, it must be accompanied by a copy of the application for relief and all supporting documents.
• Use the proper shipping address. The USCIS website indicates where to send the motion to reopen. If you make a mistake in the address, USCIS will not receive your filing, which can cause unnecessary delays.
• Submitting a motion to reopen generally has a filing fee, depending on the nature of the motion. If you are unable to pay the filing fee, you can use a fee waiver request.
• Think of the effect on the prior motion decision. Submitting a motion does not override the previous motion. That is, if you send a motion not to deport, USCIS can still carry out the deportation proceedings while the motion is pending.
• Request an oral argument if you wish to make one. The general rule is that motions to reopen are based on written filings and evidence that you submit. However, you can request oral arguments in your motion.

Limits on a Motion to Reopen

There is a time limit to file a motion and limitations on the number of motions you can file. Generally, you must file a motion to reopen within 90 days of an immigration judge’s final order. In most cases, you can only file one motion to reopen an immigration case, but there are exceptions to the limits on motions to reopen.

According to the Department of Justice, there are some exceptions to the 90-day rule for additional time and other limits on motions to reopen, including:

• Changed circumstances
• Proceedings that you cannot attend
• Filing a joint motion
• Department of Homeland Security (DHS) motions
• Motions filed before 1996
• Motions for battered spouses, children, and parents

The Department of Homeland Security (DHS) is not subject to the same filing deadline or limits on motions to reopen cases in removal proceedings. For cases involving deportation or exclusion proceedings, DHS may be subject to the limited time period and numerical limitations, unless the motion is based on fraud in the original proceeding, or based on a motion that a crime would support termination of an asylum decision.

Changed Circumstances

If your motion to reopen is based on an application for asylum, Convention Against Torture protection, or withholding of removal, and there are new circumstances that apply to your case, you may be able to file a motion to reopen. You must include a complete description of the new facts and articulate how the change in circumstances affects your eligibility for relief.

You must also submit additional evidence of record. Evidence in support of your application for relief will include convincing evidence, including criminal justice records, historical records, English translation records in a foreign language, and any official record.

The immigration judge may also reopen a judicial proceeding at any time they choose.

Criminal Conviction Relief

A motion to reopen based on an overturned or vacated criminal conviction must include material evidence. The immigration court requires clear evidence that your conviction has been overturned or vacated, or that some corrective action was taken. Filing an appeal for post-conviction relief or claiming that you are eligible to have your criminal case vacated is not enough to reopen your case.

Appeals and Stays

A motion to reopen a case and an appeal are separate legal options. However, it can cause confusion when these separate legal remedies overlap. If you file a motion, you are still limited to the time limitation of an appeal. A motion to reopen does not stay or extend the deadline to file an appeal. If you file an appeal first, the case goes to the Board of Immigration Appeals, and the immigration court judge no longer has jurisdiction over the motion to reopen your case.

Additionally, a motion to reopen does not stay or extend an order of removal or order of deportation. Appeals of decisions do not provide cancellation of removal or other relief from deportation removal. If you are deported or going through removal proceedings, you may be able to file a motion to reopen in absentia in deportation.

An absentia removal order can be rescinded if the individual demonstrates that failure to appear was because of exceptional circumstances.

There are special court rules for motions to reopen if you are unable to appear for the immigration court hearing after deportation or removal. Talk to your immigration attorney about your rights to appeal or exceptions for motions to reopen your case.

Types of Immigration Cases

The process for reopening an immigration case may depend on the immigration type involved. Different types of immigration cases include:

• Work visas
• Cancellation of removal application
• Asylum application form
• Temporary protected status (TPS)
• Extreme hardship waiver
• Adjustment of status or maintenance of status

In some cases, you may not know why your immigration case was closed. You can review the record of proceedings to understand the original decision. There may be limited time and limited circumstances to file to reopen the earlier decision. Contact your attorney about reopening an initial decision to get a decision favorable for you and your family.