Motions To Reopen Orders Of Removal And Deportation
If a final order of removal or deportation has been issued and an immigrant respondent has not left the country, then he/she must file a motion to reopen the proceedings in order to apply for relief from removal.
A motion to reopen is needed in order to ask the Immigration Court to reopen proceedings after the Immigration Judge has given a decision so that the Immigration Judge can consider new facts or evidence in the case.
With few exceptions, a motion to reopen must be filed within 90 days of an Immigration Judge’s final order.
Exceptions to the limits on motion to reopen.
A motion to reopen may be filed outside the time and number limits only in specific circumstances:
(A)Changed circumstances. — When a motion to reopen is based on a request for asylum, withholding of removal (“restriction on removal”), or protection under the Convention Against Torture, and it is based on new circumstances. Motions based on changed circumstances must also be supported by evidence of the changed circumstances.
(B)In absentia proceedings. — There are special rules pertaining to motions to reopen following an alien’s failure to appear for a hearing, such motion is called Motion Reopen in an Absentia Orders.
(C)Joint motions, meaning Motions to reopen that are agreed upon by all parties and are jointly filed are NOT limited in time or number. See 8 C.F.R. § 1003.23(b)(4)(iv).
(D)Motions filed by Battered spouses, children, and parents are covered by special rules pertaining motions to reopen. INA § 240(c)(7)(C)(iv).
(E)Motions filed before September 30, 1996 do not count toward the one-motion limit.
(F)For cases in removal proceedings, the Department of Homeland Security (DHS) is not subject to time and number limits on motions to reopen. However, for cases brought in deportation or exclusion proceedings, DHS is subject to the time and number limits on motions to reopen, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum. See 8 C.F.R. § 1003.23(b)(1).
(G)The Immigration Judge may also reopen proceedings at any time on his or her own.
In addition to the regulatory exceptions for motions to reopen, exceptions may be created in accordance with special statutes, case law, directives, or other special legal circumstances.
Reopening removal proceedings and requesting termination of proceedings is extremely difficult, always consult an experienced immigration attorney prior to the filing of such motions.
Immigration laws can be extremely complicated. To find the best strategy in defense from removal is extremely important for the success of the case. As each case is unique and different, call our immigration lawyer for a detailed evaluation of your special matter.