What are motions to reconsider and reopen?

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

When a person has been placed in deportation/removal proceedings, they would ordinarily receive a decision from the immigration judge (IJ) or, if they appeal, a decision from the Board of Immigration Appeals (BIA). If the decision is unfavorable, they possibly could file either a motion to reconsider or a motion to reopen.

What is a motion to reconsider and a motion to reopen? What are the requirements? What are the filing deadlines? When are they available?

Motion to reconsider: A motion to reconsider requests “that the original decision (by the IJ or BIA) be re-examined in light of additional legal arguments, a change of law or an argument or aspect of the case that was overlooked.” In other words, reconsideration of a decision based on legal aspects: overlooked law, new law, additional law, etc. The motion must specify the errors of law or fact in the previous decision, supported by relevant legal authority/caselaw.

A person is ordinarily allowed only one motion to reconsider, which must be filed within 30 days of a final administrative order of removal.

Motion to reopen: A motion to reopen is a request to have the proceedings reopened “so that new evidence can be presented and so that a new decision can be entered.” In other words, a motion to reopen is based on new facts coming to light that could have a bearing on the outcome of the case. If those facts existed at the time of the original decision, they would not be considered “new.”

For example, an issue in the removal proceedings may have involved “extreme hardship” to certain “qualifying relatives” such as a spouse or parent. Later, that relative came down with a severe ailment that could affect their hardship. Perhaps the case could be reopened.

Ordinarily, a person may file only one motion to reopen proceedings within 90 days of the date of entry of a final administrative order of removal.

If you are subject to a final order of removal, and now have a new basis or way to legalize your status, or new facts have come to light that could have a bearing on your case, you should consult with an attorney who can evaluate your case and eligibility for a motion to reconsider or reopen. Remember, ordinarily you have only one chance. So, you don’t want to try to do it yourself and have it denied, because then you’ve already used up your one motion. Also, if you are subject to a final order of removal, you cannot file a new adjustment with USCIS, as the Immigration Court, not USCIS, would have jurisdiction over the case. You would have to reopen the case.

In addition, even if you are past the 30- or 90-day filing deadline, in some cases it could be possible to bring a motion to reconsider or reopen beyond those deadlines, such as if you never received notices, the trial attorney agrees to a joint motion or the judge, on his or her own motion (sua sponte), decides to reopen proceedings.

Moreover, with Biden being elected president, and his efforts to “halt” deportations, have the government once again exercise prosecutorial discretion, and generally be more lenient when it comes to deporting/removing people, you should definitely consider consulting with an attorney to evaluate your options.

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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “success stories,” endorsements and re-enactments) are of a general nature and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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