Motions To Reopen A Removal Proceeding
If you have a removal order, our deportation defense attorneys at Wilson Law Group in Minneapolis might still be able to help if you are eligible to file a motion to reopen your removal proceeding.
What Is A Motion To Reopen?
The effect of reopening is to eliminate the final order and place you back into removal proceedings. In most cases, reopening your case is the only way you will be able to apply for relief from removal.
You can file a motion to reopen with either the Immigration Court that entered the removal order or the Board of Immigration Appeals (Board). Where to file depends on your case’s procedural history and which tribunal last had jurisdiction over your case. The jurisdictional rules can be complex so make sure to consult with one of WLG’s immigration attorneys to determine the proper place to file your motion.
After the immigration court grants a voluntary departure, filing a motion to reopen your removal proceeding can have consequences. In addition, filing a motion to reopen does not affect the 30-day deadline for filing an appeal of the decision of an immigration judge or the Board. The same deadline applies if you wish to appeal the denial of a motion to reopen.
Filing Deadlines For Motions To Reopen
The law establishes strict time and number limits for motions to reopen. Generally, motions to reopen must be filed within 90 days of the entry of a removal order. You are entitled to file only one motion to reopen. Motions to reopen must identify new facts or evidence for consideration by the adjudicator. In addition, if you are filing a motion to reopen to apply for relief, you must submit the application and all supporting evidence with your motion.
If you do not meet the time or number limits, you have two options. First, you can ask the government to join your motion, in which case the limits do not apply. Second, you can ask the Immigration Court or the Board to grant the motion “sua sponte,” or on its own authority. WLG has successfully argued for time or number-barred motions and would be happy to evaluate your case if this is your situation. One example of a type of case when reopening may be warranted despite the bars is when the individual is newly eligible for adjustment of status based on a marriage to a U.S. citizen.
Exceptions To The Filing Deadlines For Motions To Reopen
The time and number limits described above do not apply in the following circumstances:
- Motions to reopen to apply for asylum or withholding of removal
- Motions to reopen an in absentia order based on exceptional circumstances
- Motion to reopen in absentia order because you were in federal or state custody
- Motion to reopen an in absentia order based on lack of notice.
“In absentia” means the immigration judge entered the removal order in your absence.
Motions To Reopen A Removal Proceeding To Apply For Asylum
If you have a removal order but fear returning to your home country, you may be eligible to reopen your case to apply for asylum or petition for a withholding of removal. To succeed with this type of motion, you must prove that the conditions in your country have changed such that you now fear persecution or torture. You must also show that the evidence of changed country conditions was not available and could not have been presented at the prior hearing. In essence, you must show a new basis for your fear. It is worth noting that you must apply separately for the government to stay, or stop, your deportation from the United States while the motion is pending.
Motions To Reopen A Removal Proceeding Due To A Failure To Appear Based On Exceptional Circumstances
In the second scenario, if you were prevented from attending your removal hearing because of exceptional circumstances, you must file a motion to reopen within 180 days of the entry of the removal order. Exceptional circumstances mean domestic abuse, serious illness of you or an immediate relative, and other equally compelling circumstances beyond your control.
Motions To Reopen For Failure To Appear Because You Were In Federal Or State Custody
If you could not appear for your removal hearing because you were in jail or prison, you have a basis to file a motion to reopen your case, and you may do so at any time.
Motions To Reopen For Failure To Appear Based On Lack Of Notice
If you never received the Notice to Appear and were not aware that the government initiated removal proceedings against you, you have a basis to reopen your case. There is no deadline for filing this type of motion.
If you did receive the Notice to Appear but did not receive notice of your hearing date, you may have a basis to reopen your removal proceeding, but filing a motion to reopen gets more complicated in this scenario. Once you receive the Notice to Appear, you are on notice that you have an obligation to update the Immigration Court within five days of moving or changing your address. If you failed to receive the notice of your hearing date because you did not update your address with immigration, it will be difficult to reopen your case. However, if the government erred in some way in the process of mailing the hearing notice, you may still have a basis to file a motion to reopen.
Determining whether there is a basis to reopen requires a careful review of the specific facts of your case by an experienced immigration attorney. Winning a motion to reopen requires strong written advocacy skills and familiarity with the immigration system. Wilson Law Group’s immigration attorneys have successfully handled complicated motions to reopen. We would be happy to evaluate your specific situation and will provide you with an honest, straightforward assessment of your case.
Consult A Removal Defense Attorney For Free
Our deportation and removal defense attorneys offer free initial consultations. If you have an order for removal, our immigration lawyers can evaluate your case to see if you are eligible to petition the court for a motion to reopen your case. To schedule your free appointment, call us at 612-430-8022 or send an email through our online form.