A motion to reopen asks the Immigration Court or the Board of Immigration Appeals to reopen proceedings after a decision has been rendered, so that new facts or evidence can be considered. The motion to reopen must state the new facts that will be proven at the reopened hearing should the motion be granted. In a motion to reopen, the individual must show that the new evidence is material to his or her case, that it was unavailable at the time of the original hearing, and that the evidence could not have been discovered or presented at the original hearing. Additionally, the motion to reopen must be supported by documentary evidence. There are time and numerical limitations to when and how many motions to reopen an individual may file. The general rule is that a motion to reopen must be filed within 90 days of an Immigration Judge’s order and that an individual is permitted only one motion to reopen. However, in certain situations, a motion to reopen may be considered even if it does not meet the time and numerical limitations.
Asylum, Withholding of Removal, or Convention Against Torture claims may be reopened based on changed circumstances in the country of nationality where there is material evidence that could not have been discovered or presented before. In proceedings where an individual was ordered removed in absentia (when he or she was not present in the court), the individual is subject a 180-day time limitation, rather than 90 days, if he or she can show that exceptional circumstances prevented him or her from appearing in court. There is no time limitation where such an individual can demonstrate that he or she did not receive notice of the hearing. In addition to these exceptions, there are also special rules for certain motions to reopen filed by battered spouses, children, and parents. The time and numerical limitations are also inapplicable to motions to reopen based on ineffective assistance of counsel. In other words, if an individual can prove that the failures of his or her previous immigration attorney prejudiced the case, the proceedings may be reopened even if they do not meet the time and numerical limitations. Once an individual’s proceedings are reopened, he or she may then apply for relief from removal in Immigration Court if eligible. Finally, the Board of Immigration Appeals may sua sponte (on its own will) reopen proceedings in exceptional circumstances and motions which are agreed upon by all parties and filed jointly are not limited in time or number.
A motion to reconsider is separate and distinct from a motion to reopen. It is a request to the Immigration Judge or the Board of Immigration Appeals to review a decision in light of additional legal argument, a change in the law, or an issue in the case which may have been overlooked. A motion to reconsider must be filed within 30 days of the date of the entry of a final order of removal and a person is only entitled to file one such motion. The as with motions to reopen, there are certain exceptions to the time and number limitations. However, these exceptions apply only to motions to reconsider filed with the Immigration Judge and not to those filed with the Board of Immigration Appeals.
Administrative Appeals
The Board of Immigration Appeals (BIA) has jurisdiction to adjudicate appeals from decisions of Immigration Judges. It is important that an individual reserves his or her right to appeal the Immigration Judge’s decision at the close of removal proceedings. Otherwise, that appeal right may be lost. Either party to removal proceedings can file an appeal which must be filed within 30 days after the oral or written decision of the Judge. There is a filing fee which can be waived under certain circumstances. Once the BIA receives the notice of appeal, it will set deadlines for each party to submit written briefs. Although the BIA has discretion to grant oral arguments in cases, it rarely does so. An individual cannot be deported while an appeal is pending or during the 30-day appeal period as long as he or she reserved the right to appeal. Decisions by the BIA are considered to be final administrative decisions, but may be appealed to the relevant U.S. federal circuit court of appeals under certain circumstances.