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. A motion to reopen is typically filed after a final order of removal, but there are circumstances where it can be filed before the order is final. This allows you to present new evidence in your immigration proceedings.

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 is complex and confusing. A legal representative can help guide you through the process. Contact a local immigration lawyer for legal advice on how you can file a motion to avoid deportation or voluntary departure.

Who Will Hear Your Motion To Reopen Your Case?

A motion to reopen a final order of removal is filed with the court that last had jurisdiction over the case. This is typically either with the immigration judge (IJ) who issued the order or the Board of Immigration Appeals (BIA) if an appeal was already filed or decided.

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 immigration law in your case.

If you requested an appeal, and it was either rejected or you abandoned it, you may still be able to file a motion to reopen your case, subject to meeting specific requirements and deadlines. 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 information 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:

• If the motion to reopen is based on your eligibility for relief, you must include a copy of the application for relief and all supporting documents.
• Use the proper shipping address. Filing addresses for the EOIR courts or the BIA must be found on the Department of Justice website. 
• 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.
• Submitting a motion does not automatically stay the previous order. However, you can request a stay of removal concurrently with your motion to reopen.
• Request an oral argument if you wish to make one. The general rule is that you should support your motions to reopen based on written filings and submitted evidence. However, you can request oral arguments in your motion.

Limits on a Motion To Reopen

There is a time limit for filing of 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 of removal. 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 relates to 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, certified English translations of documents in a foreign language, and any official records.

The immigration judge may reopen a judicial proceeding if there is a legal basis, such as new evidence or changed circumstances.

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 was overturned or vacated, or that there was some other corrective action. 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. You have 90 days to file a motion to reopen. However, you generally have 30 days to file 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 BIA, 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. 

While a motion to reopen does not automatically stay removal (a separate stay request is required), a timely filed appeal of the IJ’s merits decision to the BIA does automatically stay the order of removal while the appeal is pending.

If you are deported or going through removal proceedings, you may be able to file a motion to reopen in absentia in deportation.

An in absentia 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.

Get Legal Help To Reopen Your Immigration Case

In some cases, you may not know why the government closed your immigration case. You can review the record of proceedings to understand the original decision. There is a time limit and limited circumstances to file to reopen the earlier decision. An immigration attorney can provide legal services to answer your questions about reopening an initial decision.

Immigration law can change at any time. For the most up-to-date information on your legal options to get a green card or avoid deportation, talk to an experienced immigration lawyer.