How to file a motion to reopen immigration case

Knowing how to file a motion to reopen an immigration case can help aliens who have lost their immigration court proceedings in the United States.

If you lost an immigration case, don’t worry, contact Curbelo Law today so we can help you with your case. Our Immigration lawyers in New Jersey have helped hundreds of national foreigners in the same situation as you.

What You Need To Know to file a motion to reopen an immigration case In The United States In 2023

Firstly, what you should be clear about is that this option exists and that you can also make use of various motions and methods that we will see below.

On our website we have previously talked about how to appeal an immigration case decision in another article that can provide additional and complementary information to the one at hand, more focused on motions to reopen and reconsider.

What Is A Motion To Reopen The Case?

A motion to reopen allows immigrants who have lost their case in immigration court to submit new or modified facts to an immigration judge. 

If a motion to reopen is granted, the new facts to be proven at a hearing must be supported by affidavits or other exhibits.  

Individuals who want to remain in the US legally, but have a deportation order, can file a motion to reopen. 

This motion can only be filed when the deportation order is final, allowing the individual to provide new evidence regarding their case.

Considerations To Take Into Account

If the petition or basis petition was denied because it was abandoned (for example, the petitioner did not timely respond to the request for evidence or the notice of intent to deny), the petitioner may file a motion to reopen if they show that the:

• Evidence requested was not relevant.
• Required initial evidence was submitted with the petition or application.
• Request to appear or additional evidence was complied with during the allotted time.
• Request for evidence or appearance was not sent to the address indicated in the record. 

Can An Immigration Case Be Reopened?

Aliens may be able to reopen an immigration case for the following reasons:

• Adjustment of status.
• NACARA relief.
• Relief under the United Nations Convention Against Torture (CAT Protection).
• Political asylum.
• Cancellation of removal.
• Due to the ineffective assistance of counsel.

However, aliens do not have the right to reopen their case for any of these reasons if they do not provide new or changed facts. These facts could not (or were not) submitted at the original hearing.

In the following cases, an immigration case cannot be reopened:

• Abandoned appeals.
• Rejected appeals.

When Might A Motion To Reopen Be An Option?

Depending on the immigrants’ circumstances, a motion to reopen may be an option for individuals who:

• Did not receive notice of the hearing and subsequently missed their court appearance. 
• Lost their immigration hearing due to exceptional circumstances, such as the death or serious illness of a family member.
• Have children who have turned 21 and are now eligible to adjust status through their children. 
• Came to the United States on a visitor or temporary visa (such as a B-1 or B-2 visa, for example), married a US citizen, and can now adjust their status.
• In the past they had a removal order against them and now they are eligible to get a Green Card of residence.
• Under certain circumstances, they have changed since their last immigration hearing and are now eligible for a Green Card, adjustment of status, or some type of immigration relief not previously available to them.

It Is Key To Speak With An Expert Lawyer In Immigration Law

There are other circumstances in which they may allow old immigration cases to be reopened again. For this, consider scheduling a consultation with our attorney Carolina T. Curbelo to discuss the possible options in your case.

• Individuals who have been in the US illegally and have had a deportation order in the past should speak with an immigration attorney to determine what options exist for them. 
• Showing up for an immigration interview without speaking to an attorney could lead to your arrest and deportation.

How To Reopen An Immigration Case In The United States In 2023

A motion to reopen must state new facts and be supported by documentary evidence. For this reason, aliens cannot forward evidence that has already been submitted or rely on facts that have already been reported. In addition, aliens must follow the following formalities:

• Use Form I-290B, notice of appeal, or motion.
• Submit the motion within 30 days of the decision to be rescinded. 
• Send the reopening motion to the address indicated by USCIS. If you get the address wrong, the motion will be returned.
• Pay the filing fee of $675. If you cannot afford it, you can request a fee waiver.

The following must be taken into consideration:

• If a motion is sent, it does not overturn the previous decision. For example, if an alien files a motion not to be deported, USCIS can still deport them while the motion is pending. 
• Motions to reopen are decided only on the basis of the written evidence submitted by the applicants. However, applicants may request oral arguments on their motion.

What Other Motions Can Be Filed?

In addition to the motion to reopen, aliens can file a motion to reconsider. 

The motion to reconsider asks that a new decision be made because there was an incorrect application of the law.

Both motions are usually filed together and on the same form. Additionally, in some circumstances, the Administrative Appeals Office (AAO) may reopen a case or reconsider the immigrants’ decision on its own initiative.

Motion On An Asylum Decision

If the alien is filing a motion on an asylum decision, they do not have to file Form I-290B (or any other DHS form). There is also no requirement to pay a fee for an asylum motion.

• The alien must file any motion within 30 days of the decision and indicate whether the motion is to reopen or to reconsider.
• However, an additional 3 days are allowed when the decision is mailed (for a total of 33 days).

If the alien does not file a motion to reopen before the response time is up, the director of the asylum office can decide whether to still accept the motion. This as long as the alien shows that the delay was reasonable and beyond their control.

Either a principal applicant or a dependent of the applicant may file a motion to reopen or to reconsider.

Motion To Reopen Vs. Motion To Reconsider

• A motion to reopen a case in immigration court is when there are new facts that were not discovered at the original hearing or when the decision was made. 
• On the other hand, the motion to reconsider is when the individual argues that the government did not correctly apply the facts of their case.

For example, if immigrants believe that the immigration judge made a mistake in the law or in the procedure for the case, such as denying them constitutional rights, the appropriate motion for this situation is the motion to reconsider.

In a motion to reopen, the government may decide to reopen the case to apply the new facts to the case and possibly issue a different decision. With a motion for reconsideration, immigrants ask the government to correct an error or to carry out a correct analysis of the case. 

Where Do I File Motions?

The motion must be filed with the office that has jurisdiction over the case. For example, if it is before immigration or USCIS, the request must be filed with the office that has jurisdiction over the case or with the AAO.

Why Would The US Government Agree To Reopen My Case?

Sometimes Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) agree to file a motion to reopen together. When both parties file jointly, the 90-day limitation is irrelevant.

For example, if an alien has compelling evidence related to health problems or some other exceptional circumstance, the government would probably rather reopen a case than spend time and energy fighting it. 

What Are The Deadlines For Filing A Motion To Reconsider And A Motion To Reopen?

Generally, an individual has 30 days to file a motion to reopen and reconsider. Cases that are in immigration court will have different time limits for the motion to reopen. In some cases, you have 90 days to file a motion to reopen.

However, if an individual claims in front of a judge that they never received a Notice to Appear (NTA), then there is no time limit for filing a motion to reopen. In immigration court it is a complex issue, since it is not just a 30-day rule, but it all depends on the facts of the cases.

What Exceptions Exist In The Filing Deadline?

Exceptions to the 90-day period include the following items:

• A deportation order in absentia. A motion to reopen may be filed within 180 days if there were any exceptional circumstances, or at any time if the only reason the immigrant failed to appear was because they were in state or federal custody.
• The government agrees to file a joint motion to reopen your immigration case, no time limit.
• Application for asylum or cancellation of removal based on changed conditions in the immigrant’s country that could not have been submitted at the original hearing, has no time limit.
• Abused spouses, parents and children. There is no time limit if the motion is based on extreme cruelty or exceptional and extreme hardship to a US citizen or resident relative and the motion is accompanied by a request for cancellation of removal.

Are you the spouse of an American and are you a victim of abuse? You may be eligible to apply for a VAWA visa. Read our article dedicated to this topic.

How Long Does It Take For A Judge To Make A Decision On A Motion?

The time it takes for a judge to make a decision on a motion varies based on the number of cases the judge has. Usually the time can vary from 15 days to 6 months. However, some motions can be decided within 15 days.

The complexity of the matter, and how busy the judge’s docket is, can extend the time for motions.

What Are Considered Exceptional Circumstances?

Exceptional circumstances include, but are not limited to the following:

• Serious illness abroad.
• Serious illness or death of the spouse, parent or child of the alien.
• Aggression or extreme cruelty towards the national foreigner or any of their children or parents.

In either case, the applicant will have 180 days to file a motion to reopen to vacate the absentee order.

What Is The Interruption Of The Limitation Period For Equity Reasons?

In addition to the exceptions above, the 90-day period can sometimes be interrupted or paused (known as fair tolling). This typically occurs during any period of time where the alien is unable to file a motion to reopen their immigration case due to fraud, error, or deception.

However, for this pause to occur, the applicant must exercise due diligence upon discovering the deception, error, or fraud. For example, if the applicant knew about the fraud, error, or deception but did nothing about it, the time period will continue without pause.

Interruption Of The Statute Of Limitations Based On The ineffective assistance of counsel 

In this situation, two things must be demonstrated:

1. The alien’s lawyer did not act competently enough.
2. The alien was harmed due to the poor performance of the lawyer. 

An alien will not be able to win an ineffective assistance of counsel claim unless the alien exercised due diligence in discovering the attorney’s error or fraud. To do this, the aliens have to show that they met the requirements of the Lozada matter described below.

“Lozada” Requirements For A Lawsuit For Ineffective Assistance Of Counsel

A motion to reopen based on ineffective assistance of counsel generally must meet the following three requirements set forth by the BIA:

1. Submit an affidavit explaining the agreement with the previous attorney regarding legal representation.
2. Submit evidence that the above attorney has been informed of any allegations and given an opportunity to respond.
3. Prove that a complaint was filed with the authorities against the previous attorney or explain why no such complaint was filed.

For further information, check the US Department of Justice (DOJ) website on the Lozada matter (PDF) 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 Do I Need To Submit To Support My Motion?

A motion to reopen must be supported by new evidentiary material. Usually this will be through affidavits and official reports (in some cases). Applicants must show that material evidence could not have been discovered or submitted at the original hearing.

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

Can I File An Appeal Or Motion If My Visa Petition Was Denied Or Revoked?

Generally, only the petitioner can file an appeal or motion of a denied or revoked visa petition. That is, an appeal or motion cannot usually be filed unless the alien is both a petitioner and a beneficiary (such as a WAVA self-petitioner).

If the alien is a beneficiary of a Form I-140, Immigrant Petition for Alien Worker that an employer filed on behalf of the alien, you may be able to file a motion or appeal in a revocation-only proceeding. 

To file this appeal or motion, the following requirements must be met:

• You had an I-140 form that USCIS later revoked.
• Form I-485, Application to Register Permanent Residence or Adjust Status Based on a Current Form I-140,  was filed and the I-485 has been pending for 180 days or more.
• A Supplement J to form I-485 was filed after January 17, 2017, to request a transfer of employment, or a transfer request was submitted before that year through a written letter.
• USCIS has approved the portability request.

How Can I Know If The Decision In My Case Can Be Appealed?

The notice of denial or revocation includes the necessary information about your appeal rights.

Frequently Asked Questions on how to file a motion to reopen an immigration case

Next, we will know some common questions regarding the topic of how to reopen an immigration case. Such questions are as follows:

Curbelo Law Helps You Reopen Your Immigration Case

Now you have more knowledge about how to file a motion to reopen an immigration case, you must also remember that having an expert attorney by your side will be key in the process.

Motions to reopen are a complex legal resource that could lead to certain unfavorable scenarios if you do not have the help of an immigration attorney. When it comes to a motion to reopen, it is imperative to get it right the first time, as immigration law prohibits filing more than one motion to reopen.

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

• Carefully analyze your case.
• Determine if a motion to reopen is your best resource.
• Effectively prepare your motion to reopen.
• Submit the motion and carry out the due follow-up.

Call us today so we can discuss your case and learn more about whether a motion to reopen is the right relief for your scenario.