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Filing Motions to Reopen with Immigrations Court, Board of Immigration Appeals, or Office of Chief Counsel

Jun 20, 2023 | BIA, Immigration Court, motions to reopen, USICE

If you have an old deportation or removal order, there may be ways for you to try to reopen your case if you are eligible for relief now, such as adjustment of status based on marriage to a United States citizen or through your U.S. citizen son or daughter over the age of 21.

In this article, I will discuss what is a motion to reopen, the different types of motions to reopen, and what options you have if a motion to reopen is denied.

What is a motion to reopen?

A motion to reopen is a process by which you can ask the U.S. government to give you a second change to stay in this country after you were issued a deportation or removal order.

Cases that started before 1996 were called “deportation proceedings” and after 1996, they are called “removal proceedings.”

A motion to reopen is filed with the body that made the last decision in your case, so it would either be with the immigration court where your case was heard, or with the Board of Immigration Appeals (BIA), if you appealed after losing your case in immigration court.

When you are subject to a final order of deportation or removal, you cannot apply for a green card directly with USCIS, even if you are now eligible to get a green card.

There are very narrow exceptions to this general rule, for example, if you were in “exclusion” proceedings and are subject to an exclusion order, or if you are charged as an “arriving noncitizen” when removal proceedings are commenced.

In most cases, you will first need to have the old case reopened, and if reopened, you can then be able to apply new relief, such as adjustment of status, either through the reopened case in immigration court, or with USCIS upon a dismissal of the reopened case by the court.

What kinds of motions to reopen can I file to reopen my immigration case?

There are several types of motions to reopen that can be filed in an effort to reopen your case:

1.  Proposed joint motion to reopen

This type of a motion to reopen is filed with the U.S. Immigration and Customs Enforcement Office of Chief Counsel.  It does not get filed with any court or the BIA.

With a joint motion, you directly ask the government lawyer to join in a request to reopen your case.  If they agree, you then file the joint motion to reopen signed by both the government lawyer and you (or your lawyer) with either the immigration court or the BIA, depending on which body issued the last decision on your case.

The joint motion tells the court or the BIA that both parties (you and the government) want to have the case reopened (and even dismissed) to allow you to pursue the relief you sought through the joint motion (typically, this is usually adjustment of status).

Joint motions are one of the best (and my favorite) ways to approach an old deportation or removal order, especially if many years have passed since the issuance of the order.

You still have to convince the government lawyer that you are eligible for the relief you are seeking and that you deserve to have a second chance.

This is where having a lawyer helps to present your case in a thoughtful, organized, and persuasive way.  This kind of a motion gives me the chance to appeal to one human being and present my client’s case in as much detail as possible, with as many favorable equities as possible, so that the government lawyer is hopefully emotionally moved and concludes that my client deserves a second chance.  I’ve had a great deal  success on such motion over the years!

There is no time limit on when a joint motion can be filed and there is no limit on how many times such a motion case be filed.  There is also no filing fee for a joint motion request.

2.  Motion to reopen an in absentia order with an immigration court

If you had an in absentia removal order – meaning a judge ordered you removed in your absence when you failed to show up for your hearing — you have a limited amount of time to file a motion to reopen with the immigration court, and you must show “exceptional circumstances” for your failure to appear in court.

Such motions to reopen should be supported with detailed affidavit and any other evidence that helps to show why you failed to appear in court.

You should file the motion as quickly as possible upon discovery of the in absentia order and you should also submit a relief application if you were eligible for relief but for the in absentia order.

If you have a very old in absentia deportation or removal order, a proposed joint motion to reopen may be the better option.

3.  Timely motions to reopen with immigration courts or BIA

You can also file a motion to reopen directly with the immigration court or the BIA, depending on where the final action took place in your case.

Motions to reopen must be filed within 90 days of the order issued by the court or the BIA.

A motion to reopen must include new evidence that was previously unavailable, and must be supported by affidavit, relief application, etc.

Typically, you are limited to one motion to reopen.

4.  Sua sponte motions to reopen with immigration courts or BIA

You can also file a sua sponte motion to reopen with either the court or the BIA, depending on where the final action took place in your case.

Sua sponte motion means that you are asking the court or the BIA to exercise its own discretion in reopening your case, even though you filed the motion beyond the normal 90-day deadline.

Sua sponte motions usually require a showing of exceptional circumstances that prevented the filing of the motion within the 90 days.

These motions are difficult to win because you are asking the court or the BIA to exercise its authority to reopen even though the motion is not timely.

Like any other motion, a sua sponte motion request should be supported by detailed affidavit, relief application, and any other evidence to support your case.

What if my motion to reopen is denied?

Keep in mind that all motions are discretionary, meaning the government lawyer, the immigration court, or the BIA, have their own discretion in whether to agree with your motion and reopen your case.

If a motion to reopen is denied by the immigration court, you have 30 days to either file a motion to reconsider with the court, or file an appeal with the BIA.

If a government lawyer declines to join in your request to a joint motion to reopen, there is no appeal.  You can try to re-file such a motion again, but you would want to address any issues raised by the government in denying your request the first time (if they give you reasons.  Sometimes, they don’t give reasons).

If the BIA denies a motion to reopen, you have 30 days to file a motion to reconsider with the BIA, or file a petition for review in a federal court of appeals having jurisdiction over the location where your immigration court case took place.

Conclusion

Motions are an important and helpful way that you can try to resolve an old deportation or removal order if you become eligible for relief after you were ordered deported or removed.

Motion practice can help you stay in the United States if you are able to have the case reopened to seek a green card without having to leave the country to consular process (and possible trigger re-entry bars, need for an inadmissibility waiver, etc).

If you are in a situation where you have a final order of deportation or removal, but are now either married to a United States citizen, or have a son or daughter over the age of 21 who is a United States citizen, you may want to consider whether a motion to reopen is ideal for you and whether you are eligible to seek a green card without needing to leave the country.

You should always speak with an experienced immigration attorney who can answer your questions about whether a motion to reopen is a good option for you!

I have successfully helped many clients to reopen their old deportation or  removal cases to seek green card without having to leave the United States.  The joy on their faces when they finally got their green cards was beyond compare.  Many had waited over 30 years!

Ruchi Thaker