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|Executive Action of President Obama
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|Motions to Reopen, Reconsider, or Remand|
Motions to Reopen
If you have had an order of deportation or removal issued against you, in certain circumstances in may be appropriate to file a motion to reopen your case.
Generally, a motion to reopen asks the Board of Immigration Appeals (BIA) or an immigration judge (IJ) to reopen a case in which a deportation or removal order has been issued. The purpose of granting a motion to reopen is to give individuals a means to provide new material evidence relevant to their cases to the immigration authorities. A motion to reopen is based on factual grounds, and states new facts that will be proven at a hearing that will be held if the motion is granted.
In any motion to reopen before an IJ or the BIA, an applicant must show that the evidence is 1) material, 2) was unavailable at the time of the last hearing, and 3) could not have been discovered or presented at the original hearing. Firstly, the evidence must be “material” and relevant to a grant of relief. This means that a person seeking to reopen proceedings to pursue relief must prove that, if proceedings were reopened, the new evidence would likely change the result in the case. Secondly, the person making the motion to reopen (the “movant”) must demonstrate that not only did he/she not have this evidence at the last hearing, but that this evidence could not have been obtained or discovered. It is not enough to show that you simply did not submit this evidence at your original hearing. A motion to reopen must demonstrate that this evidence could not have been discovered through reasonable efforts.
A motion to reopen may be filed with the BIA or IJ as appropriate, and must be supported by affidavits or other evidentiary material if available. However, a motion to reopen may not be filed with an IJ once an appeal of the IJ’s decision is pending with the BIA. Once an appeal to the BIA is pending, the IJ no longer has jurisdiction (or legal authority) to rule on a motion to reopen submitted directly to him/her. Additionally, any motion to open that is seeking relief or a benefit must be accompanied by the application for relief and all supporting documentation. If the application or supporting evidence is not submitted along with the motion, or the supporting evidence is insufficient, the motion to reopen will be denied. The motion must also include the appropriate filing fee, proof of service upon the opposing party, English translations for all documents and non-English text, as well as a notice of representation if the movant is represented by legal counsel.
In the Supreme Court case INS v. Abudu, 485 U.S. 94 (1998), the Court ruled that the BIA may deny any motion to reopen under 3 circumstances: 1) the movant’s failure to make a prima facie case; 2) the movant’s failure to reasonably explain why information or evidence was not available sooner (or for asylum seekers, failure to explain why asylum was not applied for initially); and 3) as a matter of discretion. The BIA does not require a showing that relief would be granted when deciding whether reopening is warranted, since they are not ruling on the actual merits of the case. However, a movant must establish a prima facie case, which means that the evidence presented in support of the motion, along with the prior record of proceedings, must demonstrate a reasonable likelihood that the statutory requirements for a grant of relief have been satisfied. The BIA will look at the likelihood that an applicant will be granted the relief sought if reopening is permitted. Even where an applicant exhibits a strong likelihood that his/her case will be granted if reopening is permitted, immigration judges and the BIA are given great deference in exercising discretion to refuse to open deportation or removal proceedings. For this reason, it is very important to have an attorney assist you in preparing motions, in order to present your situation in the best possible light.
A motion to reopen must be filed within 90 days of the issuance or date of entry of a final administrative order of removal, with certain exceptions. If no exceptions apply, not only must a motion to reopen must be filed within 90 days of the issuance of a final administrative order of removal, but a second motion to reopen is barred if a prior motion to reopen has been filed on the same basis. This means that under ordinary circumstances, a movant may only file one motion to reopen for a given form of relief.
Both the BIA and Immigration Courts recognize that a motion to reopen is not barred, even if it does not meet the 90-day time limitation or numerical limitation, in certain circumstances:
1) Sua Sponte reopening, in which the IJ or BIA reopen proceedings without formal prompting. This does not occur as a matter of course, but the BIA or IJ may reopen a case in their own discretion, for reasons such as good cause, fairness, or administrative economy;
2) Where both opposing parties agree to reopen proceedings;
3) Where the Department of Homeland Security seeks reopening where a crime supports stripping someone of asylee status or where there is newly discovered evidence of fraud in the original proceeding;
4) In claims based on asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”), cases may be reopened if there are changed circumstances arising in the country of deportation where there is material evidence that could not have been discovered or presented in the previous proceeding; OR
5) Where a removal or deportation order was entered in absentia (because the applicant filed to appear before an adjudicator while in proceedings), but only if there are “exceptional circumstances” or no notice of the hearing date was provided.
A person may be able to reopen proceedings based upon an in absentia order of removal if a motion to reopen is filed within 180 days of the date of the order and the person can demonstrate there were “exceptional circumstances” that prevented him/her from appearing in court, such as the applicant falling ill and having to be hospitalized. A motion to reopen seeking to rescind an in absentia removal order must be made with the IJ.
The 180-day period for filing due to exceptional circumstances is subject to “equitable tolling” where the movant can demonstrate that the removal order was a result of ineffective assistance of counsel. Ordinarily, the court must determine whether or not, and at what time, the ineffective assistance of counsel was or should have been discovered by a reasonable person. Then, the court must determine whether the person exercised reasonable due diligence in filing the motion to reopen, and pursuing relief, after discovering the existence of this ineffective representation. Many courts strongly factor whether the person seeking to reopen their cases exercised due diligence, so it is important to speak to an attorney as soon as you learn of, or suspect, ineffective prior representation.
In claims based on asylum, withholding of removal, or protection under CAT, cases may be reopened if there are changed circumstances arising in the country of deportation where there is material evidence that could not have been discovered or presented in the previous proceeding. These “changed circumstances” have a specific legal meaning, and often may not simply a change in a person’s personal circumstances, without more. However, changed circumstances warranting a motion to reopen may include instances in which the conditions in a person’s country of origin have significantly deteriorated since the time of the person’s origin court hearing. For example, if the person can demonstrate that political conditions in his/her country of origin have made it such that it is no longer safe to return, and this change or degradation has occurred since the time of the origin hearing.
A motion to reopen may be filed at any time where the person can demonstrate that the failure to appear was due to a lack of proper notice. Consult with an attorney to determine if proper notice was given. The definition of “proper notice” also has a specific legal definition, and notice might have a different meaning to someone unfamiliar with immigration law.
Similarly to the federal appeals process, the filing of a motion to reopen or motion to reconsider does not automatically result in a stay of removal. An attorney can help you put together a motion asking the circuit court to “stay removal,” meaning that the respondent will ask not to be deported back to his/her country of origin while the motion is being considered.
Motions to Reconsider
A motion to reopen may also be filed with the BIA or IJ as appropriate. Unlike a motion to reopen, motion to reconsider must be filed within 30 days of the date of entry or issuance of a final administrative order of removal.
The purpose of a motion to reconsider is to specify errors of law or fact contained in the previous removal order, and must be supported by pertinent authority (relevant law or legal arguments). This motion is a request that the administrative decision be reexamined in light of additional legal arguments, a change in the law, or possibly an argument or aspect of the case that was previously overlooked.
A motion to reconsider a decision must contain the following: 1) an allegation of material or factual error in the decision that is supported by pertinent authority; 2) if the BIA issued an “affirmance without opinion,” adopting an IJ’s decision as its own, the movant must show that the alleged errors and legal arguments were previously raised on appeal, along with a statement explaining how the BIA erred in utilizing an “affirmance without opinion”; and 3) if the movant is relying on a change of law, the movant must provide a reference to the relevant statute, regulation, or case precedent and explain how the prior decision in movant’s case is materially affected.
Where a movant does not meet the requirements or standard necessary to file a motion to reopen, a motion to reconsider may not be used as a substitute for a motion to reopen. The IJ and BIA will examine the actual purpose and content of the motion, in deciding whether it can be entertained; regardless of how the movant labels the motion. The person making a motion must be careful to follow the proper procedures and deadlines for the type of motion submitted, since the actual content of the motion will provide the rules that must be followed for submission. For example, if a submission is labeled a “motion to reconsider” but contains allegations and documentation of ineffective assistance of counsel, this motion would almost certainly be treated as a motion to reopen and will be expected to comply with the requirements for filing a motion to reopen.
Motions to reconsider are also numerically limited, in that a movant may only file one motion to reconsider a decision that the person is removable from the U.S. However, the numerical limitation applies to each “decision” made, rather than the person’s immigration case as a whole. For example, a motion to reconsider an asylum relief denial may be filed with the BIA, then denied; however, if that person subsequently filed a motion to reopen and that was also denied, a motion to reconsider the motion to reopen denial would not be barred.
Similarly, as described above in the “Motions to Reopen” section, the filing of a motion to reconsider also does not automatically stay removal.
Motions to Remand
Motions to remand are made during the pendency of an appeal. Typically, the purpose of a motion to remand is to ask for the movant’s case to be returned to the Immigration Judge for further consideration or fact-finding. This motion is asking an appellate body to return jurisdiction of a case from either a federal circuit court to the BIA, or from the BIA to the immigration judge. In appropriate circumstances, parties may move to remand proceedings to the immigration judge to consider newly available evidence or newly acquired eligibility for relief while an appeal is still pending. In a way, a motion to remand is asking the adjudicator to return jurisdiction to the immigration body who would more appropriately be able to decide an issue.
Motions to remand are subject to the same substantive requirements as motions to reopen. For this reason, supporting evidence and applications for relief, if involved, must be submitted with the motion to remand. Similar to a motion to reopen, the BIA may deny a motion to remand where the evidence was discoverable at an earlier stage in the proceedings, is not material or probative, or is otherwise defective. Additionally, parties submitting new evidence in support of a motion to remand should articulate the purpose of the new evidence and explain why it was previously unavailable.
Unlike motions to reopen, motions to remand are not limited in time or number because they are made while an appeal is pending.
Gavlin & Associates has years of experience successfully putting together motions to reopen, reconsider, and remand. Please contact us if you need assistance getting your motion granted. We will work closely with you in achieving the best possible outcome in your case.