New York Lawyer's Legal Updates

Motion to Reopen After Removal Order

Author: Deportation lawyer Alena Shautsova

A person after removal proceedings may file a motion to reopen or reconsider with the Immigration Court or the Board of Immigration Appeals (the BIA) to receive a permission to restart the case. The procedure is defined by the Immigration and Nationality Act, Immigration Court Practice Manual and ICE Memorandums on implementing the rules for filing the motions to reopen and/or reconsider.

Motions to reopen after the Order Issued in Absentia

Quite often, such motions are filed after an Immigration court issues a final order of removal against a person who did not appear in court for his/her removal hearing. If such a person can demonstrate that he/she missed the hearing because he/she was unable to come (urgent personal circumstances; state/federal incarceration; lack of notice), the judge may grant the motion and re-open removal proceedings. A motion to reopen for lack of notice can be filed at any time. INA §240(b)(5)(C)(ii); INA §242B(c)(3)(B) (1995). It must be noted that depending on the time frame of service of the notice, the requirements as to the manner of service of the immigration proceedings notice may vary. One should consult with an Immigration lawyer to verify the requirements to the notice.

The Departure Bar

Under 8 CFR §1003.2(d) the BIA and/or Immigration Court lack authority to reopen removal proceedings if the respondent has departed the United States after the proceedings have been completed. However, if an order was issued in absentia (without the person appearing in court), the departure bar is not applicable. Various courts, however, have held that the departure bar regulation is in conflict with INA §240 and its subsections

Timing to File Motion to Reopen

The law provides for 180 days to file a motion for reopen after the date of the order of removal if the person demonstrates that the failure to appear was because of exceptional circumstances. If the proceedings were missed for lack of notice or due to incarceration, the motion may be filed at any time. The deadline may be prolonged for the time of exceptional circumstances existed. Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) (ineffective assistance of counsel even if it occurs through a paralegal’s misrepresentation is an exceptional circumstance and also tolls the 180-day period).

It is important that if the motion is being filed after order in absenita, the filing party does not need to seek government’s consent for it.

Factors BIA and Court will take into consideration

In the Matter of M–R–A–, 24 I&N Dec. 665, 674 (BIA 2008), the BIA listed several factors that play central part in granting of motions to reopen: In determining whether a respondent has rebutted the weaker presumption of delivery applicable in these circumstances, an Immigration Judge may consider a variety of factors including, but not limited to, the following: (1) the respondent’s affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the respondent’s actions upon learning of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the respondent had an incentive to appear; (5) any prior application for relief filed with the Immigration Court or any prima facie evidence in the record or the respondent’s motion of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the respondent’s previous attendance at Immigration Court hearings, if applicable; and (7) any other circumstances or evidence indicating possible nonreceipt of notice.

Motion to Reopen based on new evidence

Finally, a motion to reopen may be filed to reopen proceedings in which the respondent actually appeared and participated. Such a motion should be usually filed within 90 days of entry of the final order of removal. Or, if the deadline was missed, the DHS should consent to such a motion and then it can be filed at any time after the removal order.

Asylum

There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 208 or 241(b)(3) and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

If you have immigration concerns, consult a deportation lawyer at 917-885-2261 and find out about your options.

24 October 2012
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