New York Lawyer's Legal Updates

Asylum: Changed Country Conditions And Motion To Reopen

Author: NY Asylum Lawyer Alena Shautsova

Changed Country Conditions

An application for asylum must be filed by within one year of the person’s entry into the US. One of the exceptions to this rule is changed country conditions in the country from which a person is claiming asylum. To invoke the exception, an applicant must demonstrate requirements set forth in section 240(c)(7)(C)(ii) of the Act and 8 C.F.R. § 1003.23(b)(4)(i). Therefore, in addition to showing changed country conditions, an alien must submit evidence that is material and was not available and could not have been discovered or presented at the prior hearing. Very often the new evidence become available after an order of removal is entered against the non -citizen. Then, a person must first file a motion to reopen. Notably, such a person will not need to file a motion to vacate the prior order of removal first. See Matter of J-G-, Respondent, 26 I&N Dec. 161 (BIA 2013). Often, there is a deadline to file a motion to reopen as well. A motion to reopen removal proceedings must be filed no later than 90 days after the date of a final order of removal, and only one motion may be filed. Sections 240(c)(7)(A), (C)(i) of the Act; 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1) (2013). The relevant statutory exceptions to the filing deadlines are articulated in sections 240(c)(7)(C)(ii) and (iii) of the Act. According to section 240(c)(7)(C)(ii), the 90-day deadline does not apply if the basis of the motion is to apply for asylum or withholding of removal and is based on changed country conditions arising in the country of nationality, if the evidence to be offered is material and was not available and could not have been discovered or presented at the previous proceeding. See also 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i) (stating that the time and numerical limits are inapplicable if the basis for reopening is to apply for asylum or withholding of removal based on changed country conditions).

In the recent BIA decision, however, it was held that

an alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.
Matter of J-G-, Respondent, 26 I&N Dec. 161 (BIA 2013)

Importantly, an alien seeking reopening must establish prima facie eligibility for the underlying relief sought. See INS v. Doherty, 502 U.S. 314, 323 (1992); INS v. Abudu, 485 U.S. 94, 104–05 (1988). Thus, the alien bears a heavy burden to show that his proffered evidence is material, reflects changed country conditions arising in the country of nationality, and supports a prima facie case for a grant of asylum. See Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992). Finally, where the ultimate relief is discretionary, a moving party must also show that a favorable exercise of discretion is warranted. See INS v. Doherty, 502 U.S. at 323.

All these factors must be taken into consideration before submitting motion with the court.

If you have Immigration concerns or questions call asylum attorney Alena Shautsova 917-885-2261.

23 July 2013
Watch Our YouTube Channel Free Legal Videos