Perhaps you lost in Immigration Court. And now you are stuck with an order of removal or deportation. Or maybe, for whatever reason, you didn’t show up in Immigration Court for your hearing. Same result: the Immigration Judge ordered your deportation. What can you do about it? The solution to your immigration problem may be to file a motion to reopen the removal proceedings so you can get another day in court.
This should be your first question about a motion to reopen: What do you hope to accomplish?
No one wants an order of deportation. And a motion to reopen, if successful, would remove the deportation order. But to what end? Why file the motion to reopen? What is the underlying strategy? Sure, you can file a motion to reopen. But before doing so, take a deep breath and consider asking yourself a few questions: do you have any meaningful chance at relief from removal? Would the motion to reopen lead to a green card? A motion to reopen should be part of a strategy to obtain relief and become a permanent resident. In other words, you don’t want to file a motion to reopen if you are inevitably going to be deported anyway, unless you enjoy wasting your time and money.
What is a Motion to Reopen?
A motion to reopen, in general, asks the Immigration Court to reopen a deportation or removal order so that it can conduct a new trial, where it will take into consideration new evidence or facts that were not presented at the hearing which ended unsuccessfully.
What are the alternatives to a Motion to Reopen?
A motion to reopen might be the best course of action. But several different post-deportation remedies might be more appropriate, depending on the facts of your case. Consider the following alternative ways to challenge an unfavorable decision:
Motion to Reopen vs. Appeal
Did the Immigration Judge incorrectly apply the law, misinterpret the law, or make a mistake based on the factual record developed at the final hearing in Immigration Court? If so, an appeal rather than a motion to reopen would probably be the best way to attack the adverse decision. On appeal, you would be asking a higher court, the Board of Immigration Appeals, to review and reverse the Immigration Judge’s decision based on an error of law or fact as developed at trial.
Motion to Reopen vs. Motion to Reconsider
These two motions appear to be similar but they are not identical. A motion to reconsider, which must be filed within 30 days of the deportation order, asks the Immigration Court to reexamine its negative decision in light of some overlooked aspect of the case. Essentially, in a motion to reconsider, you’re asking the Immigration Court to change its mind based on an error of facts and law as developed at trial, whereas a motion to reopen brings to the court’s attention a new factual development or changed circumstance since the hearing. Naturally, a successful motion to reconsider is a rare thing indeed.
What’s the filing deadline for a motion to reopen?
One problem for any possible motion to reopen is that, in general, a motion to reopen must be filed within 90 days of the final order of removal or deportation or other final administrative action. Exceptions to the standard filing deadline exist for the following types of motions to reopen:
Motion to Reopen and Rescind an In Absentia Order of Removal or Deportation In general, you are required to personally attend all hearings in Immigration Court and if you fail to do so, the Immigration Judge will enter an order of removal or deportation as a consequence. This is what is known as an in absentia order of removal. The motion to reopen in absentia proceedings is often based on exceptional circumstances or lack of notice. If it is based on exceptional circumstances, a motion to reopen must be filed within 180 days.
If it is based on a lack of notice, you may file a motion to reopen at any time. This is the most typical motion to reopen in my office. If successful, the order of deportation is rescinded and the Immigration Court schedules a new hearing.
Motion to Reopen based on Ineffective Assistance of Counsel
If you lost in Immigration Court because your attorney’s actions were incompetent or fraudulent, then you can remedy the outcome by filing a motion to reopen. In Matter of Lozada, the Board of Immigration Appeals set out the requirements for a claim of ineffective assistance of counsel. Only one such motion may be filed. And the deadline is subject to equitable tolling. This means that the deadline (either 90 or 180 days) starts running when someone discovers (or should have discovered) that the attorney’s actions were ineffective. In other words, be diligent and don’t delay.
Joint Motion to Reopen
The Department of Homeland Security may file a motion to reopen jointly, together with the immigrant who was deported, at any time. I selectively approach DHS with joint motion to reopen requests when, for instance, my client’s case is sympathetic but not eligible for reopening on other grounds.
Considering a Motion to Reopen? Here’s how our immigration lawyers can help
A motion to reopen is an intricate legal remedy that would be foolhardy to attempt without the help of an effective immigration lawyer. And when it comes to motions to reopen it’s important to get it right the first time because immigration laws bar you from filing more than one of certain motions to reopen.
At the Law Offices of Joshua L. Goldstein, our team of immigration lawyers will:
- review your immigration case carefully;
- determine whether a Motion to Reopen is the best course of action;
- prepare a Motion to Reopen that is compelling and persuasive; and
- file your Motion to Reopen and track it through the immigration court system.
Call us today at (617) 722-0005 to schedule a consultation to discuss your case and to learn more about whether a motion to reopen might be right for you.