How to file a motion to reopen immigration case

If an immigration judge closed your case, you may still have options available and you may be able to file a motion to reopen or reconsider. 

A motion to reopen allows immigrants who have lost their case to present new evidence or facts before an immigration judge

However, we strongly recommend that you do so with the help of our immigration lawyers in New Jersey, as it is a complex process.

How To file a motion to Reopen An Immigration Case In The United States In 2024

To reopen an immigration case in the U. S. you must:

1. Check if the judge ordered your deportation. To do this, call the Immigration Court line.
2. If you are under removal proceedings, file a written petition to reopen in absentia with the Court and the Department of Homeland Security ( DHS ). 
3. Include details such as your name, address, and the date and time of your last hearing. If you missed it, you must provide a detailed explanation of why you missed it.
4. Provide documentation and evidence to support your explanation. 
5. File the petition within the required time, generally within 180 days of the missed hearing date. 

Still wondering how to reopen my immigration case? Call us, our attorneys will help you file this motion before an immigration judge or the Board of Immigration Appeals (BIA).

When Can An Immigration Case Be Reopened?

Generally, there are 3 main causes that support the basis for reopening a case:

• The immigrant did not receive formal notification of the deportation hearings. Additionally, if the hearing is held without the immigrant’s presence due to ignorance of the hearing, the judge may order the reopening of the case.
• Conditions in the applicant’s home country have changed, and it would be a serious hardship for the aliens to return to their home country.
• There are unusual circumstances where the U. S. government attorney will agree to reopen the deportation case. This would be even if none of the above situations exist.

Are you undocumented and want to be legal? Read our related blog on “How can an illegal immigrant become legal in the US“.

General Steps On How To Reopen An Immigration Case

General steps to file a motion to reopen an immigration case include:

Step 1: Determine Legitimate Reasons 

Determine if you have legal grounds to request reopening of your immigration case. This could include scenarios like the following:

• Not receiving notice of the hearing and therefore did not appear in court. 
• Losing your immigration hearing due to exceptional circumstances, such as the death or serious illness of a family member.
• You have children who turned 21 years of age and are now eligible to adjust your status.
• You came to the United States on a temporary visa (such as the B-1 visa or B-2 visa), married a U.S. citizen, and can now adjust your status.
• You were under removal proceedings previously but now you are eligible to obtain a Green Card.
• Since your last hearing, certain scenarios have changed and you are now eligible for some immigration relief that was not previously available to you.

Step 2: Collect Evidence And Documentation

Gather all relevant documents that support your application, such as birth certificates, medical reports and others.

Step 3: File Form I-290B 

Complete Form I-290B and then submit it to the corresponding office. It is crucial that this filing be made within 30 days of the decision you wish to challenge.

Step 4: Submit The Petition To The Competent Authority 

Submit the petition along with Form I-290B and the filing fee to USCIS, following established procedures and deadlines.

Step 5: Follow Up And Communicate Constantly

Maintain active communication with USCIS after filing the petition. To do this, respond to any requests for additional information and provide clarifications as necessary.

What Happens When USCIS Reopens An Immigration Case?

When USCIS reopens an immigration case, it allows an immigrant to submit new information to the office that issued an unfavorable decision. 

This request seeks to review the decision based on new facts. However, these must be supported by affidavits or other evidence demonstrating the applicant’s eligibility at the time of application.

When Should I File A Motion To Reopen an immigration case With USCIS?

Generally, a request to reopen is filed within 90 days of the final removal order. 

Additionally, your filing of a motion does not cancel the deportation order, unless the immigration judge or BIA orders its stay. 

If your deportation was ordered in absentia (for failing to attend the hearing), it may still be possible to reopen your case even many years later.

What Happens If My Motion To Reopen Is Granted?

If the Immigration Court accepts your request for a motion to reopen, you will have the opportunity to submit new evidence. 

Additionally, the immigration judge will rule on the case based on the new evidence presented.

Motion To Reopen Vs. Motion To Reconsider

The main difference between a motion to reopen and one to reconsider is the basis on which they are presented:

• Motion to reopen: It is submitted when there is documentary evidence of new facts that may affect the previous decision.
• Motion to reconsider: It is submitted when it is considered that there was an incorrect application of the law in the previous decision.

Each is requested before the same authority that issued the original decision and has jurisdiction over its own decisions. The regulations for both motions are set forth in 8 CFR § 103.5.

Requesting Reconsideration Of The Case

If there is not enough new information to file a motion to reopen an immigration case, another option is to file a motion to reconsider. However, you must demonstrate that there was:

• A violation of your constitutional rights, or 
• A legal error on the part of the court during the process. 

Reconsidering a case does not depend on new information, but rather on a reevaluation of the information initially presented. 

How Do I Send A Motion To The Immigration Court?

To submit a motion to reopen, you must:

• Comply with Filing: The motion must be filed with a cover sheet titled “Motion to Reopen” and satisfy the filing requirements of Chapter 5 of the EOIR.
• Have the appropriate forms: If you are being represented by a registered professional or have received documentary assistance from one, the motion must be accompanied by an EOIR-28 or EOIR-61 form. 
• File change of address (if necessary): To ensure that the Immigration Court has the defendant’s current address, a change of address form must be filed with the motion.
• Provide applicable fees: Depending on the motion, a filing fee or a fee waiver request may be required. 
• Have additional documentation: If the motion is based on eligibility for relief, it must be accompanied by a copy of the application and all supporting documents.

How Many Motions To Reopen Can I File?

The law states that only one motion to reopen can be filed. Therefore, if you anticipate another motion later, you may want to wait until you have gathered all the necessary evidence. 

On our website we have discussed many diverse immigration relief and programs, such as parole in place for military families or post-conviction relief for immigration purposes. Use the menu search to find other related topics.

How Much Is The Motion To Reopen Immigration Fee?

Pursuant to 8 CFR § 1103.7 To file a motion to reopen or reconsider, the following fees apply:

• Before immigration court: $145.
• Before the Board of Immigration Appeals: $895.

What Are The Common Causes For Filing A Motion To Reopen?

Frequently, a motion to reopen is used to request any of the following immigration relief:

• Adjustment of status.
• Political asylum.
• Cancellation of removal.
• NACARA program.
• Relief under the United Nations Convention Against Torture (CAT).

Likewise, a motion to reopen may be helpful when there is ineffective assistance of counsel.

“Lozada” Requirements For A Claim Of Ineffective Assistance By Counsel

To file a motion to reopen an immigration case based on ineffective assistance of counsel, generally 3 requirements must be met:

• Submit an affidavit explaining the agreement with the previous attorney regarding legal representation.
• Demonstrate that the previous attorney has been notified of the allegations and given the opportunity to respond.
• Demonstrate that a complaint was filed against the previous attorney with the appropriate authorities or explain why no such complaint was filed.

For more information, see the Department of Justice (DOJ) website on the Lozada matter or contact our office directly. It is important to know the facts surrounding your case to give you accurate information in a private consultation.

What Evidence Should I Present To Support My Motion?

A motion to reopen must be supported by new evidentiary material. Typically this will be through affidavits and official reports (in some cases). 

Applicants must demonstrate that material evidence could not have been discovered or presented at the original hearing.

If necessary, it must also be accompanied by a request for relief, such as asylum, for example.

Why Would The U. S. Government Agree To Reopen An Immigration Case?

The US government might agree to reopen an immigration case for several reasons. 

An example is for Immigration and Customs Enforcement (ICE) or DHS to file a joint motion. Of course, it would only be when both parties agree.

Generally, this happens when the foreigner presents convincing evidence regarding his or her health or other circumstances. 

Additionally, in compelling cases, the government may prefer to reopen a case rather than spend time and resources litigating. 

How Long Does It Take To Reopen USCIS Motion?

The estimated time to reopen a motion before USCIS may vary depending on the following factors:

• A motion generally takes 90 days to process.
• The appeal process can take up to 180 days.
• If the office that issued the unfavorable decision does not take favorable action within 45 days, it will forward the appeal to the Administrative Appeals Office (AAO).
• AAO strives to complete its review within 180 days from the time it is received.

Therefore, the total time to reopen a motion can be at least 90 days for a standard one, or up to 180 days. However, some cases may take longer.

Exceptions To The Submission Deadline

Exceptions to the 90-day deadline include:

• Government agreement for a joint motion: There is no time limit.
• Battered spouses, children, and parents: No time limit if the motion is based on exceptional hardship for an eligible relative and is accompanied by a request for cancellation of removal.
• In absentia removal order:  The motion can be filed within 180 days if there were certain circumstances, or at any time if the applicants did not attend because they were in state or federal custody.
• Application for asylum or withholding of removal: There is no time limit, but requires that this application be based on conditions in the country of origin that could not be discovered or presented at the previous hearing.

If you are a victim of abuse, you may be eligible for the VAWA visa. Our lawyers will be able to help you process it. 

Can I Appeal Or Try Again If My Motion Is Denied?

Yes. Although aliens can only file one motion to reopen, denials of motions to reopen can be appealed to the BIA. 

In fact, if the BIA denies the appeal, it can be appealed again to the U. S. Court of Appeals for the Ninth Circuit. 

What Happens If My Case Has Been Administratively Closed?

If your case is facing administrative closure, then you should file a motion to recalendar and not a motion to reopen. You can find more information in chapter 5.10(t) or contacting our immigration attorneys.

What Happens When An Immigration Case Is Closed?

When a case is closed, the proceedings are stopped, the case is removed from the active docket, and the defendant is not scheduled for future hearing dates. 

Additionally, deportation proceedings are suspended unless one of the parties successfully reschedules.

Can I Be Deported While My Motion To Reopen Is Pending? 

Filing a motion to reopen does not influence a deportation order, so you can be deported. 

Likewise, if this was issued “in absentia”, the order will be automatically suspended by a motion to reopen. 

Individuals seeking to remain in the country for humanitarian reasons may qualify to have their deportation orders stayed.

To learn more about this, we invite you to read our blog on how to stop removal proceedings.

What Happens If I Leave The U. S. Through Voluntary Departure?

If you file a motion to reopen and are still in the United States after the voluntary departure period has ended, your first motion will be denied because it violates leaving the country.

This scenario is known as the “Fugitive Disentitlement Doctrine.” This means that by refusing to leave the country when they promised, the foreigners have waived their right to reopen their case.

How To Expedite An Immigration Case?

You can ask USCIS to expedite review of your application, petition, appeal, or motion. USCIS will evaluate each application on a case-by-case basis, generally requiring supporting documentation. 

The decision to expedite is at the discretion of USCIS and factors such as humanitarian emergencies, USCIS error correction, etc. are considered. Of course, not all requests to expedite a case will be approved. 

How Curbelo Law Helps You Reopen An Immigration Case?

Now you have more knowledge about how an immigration case can be reopened, but having the necessary legal help will be key in the process.

Motions to reopen or reconsider are a complex legal resource that could lead to certain unfavorable scenarios if you do not have the help of an immigration attorney. 

At Curbelo Law, our specialized team can help you with the following:

• Carefully analyze your case.
• Determine whether a motion to reopen is the best remedy you have.
• Effectively prepare your motion to reopen.
• Present the motion and follow up on it.

Call us today so we can discuss your case so you can learn more about whether a motion to reopen is the most appropriate remedy for your situation.