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BIA Motion To Reopen SUA SPONTE

Author: Alena Shautsova

BIA Motion

If removal or deportation proceedings were lost, a person will have an order of deportation/removal against them. At times, a person would fail to appear in Immigration courts proceedings completely and will have an order of removal/deportation entered against them in absentia. But an order of removal does not mean that a person physically left the United States. Often, a person would still remain in the US, and often he/she would even have employment authorization. Naturally, a person would seek to improve their immigration status situation and often, that old deportation or removal order will be on the way.

As rule, motions to reopen are subject to numerical and time limitations. It makes sense: you cannot file motions to reopen several times arguing the same points. You also should not be waiting too long to try to reopen your case. But at times, a person’s situation changes years after he or she received the deportation or removal order. Is there any hope in a situation like that?

Yes, there is hope, however little. It is SUA SPONTE motion to reopen before the Board of Immigration Appeals. In exceptional circumstances, the Board of Immigration Appeals or Immigration Court may exercise its discretionary authority to reopen proceedings sua sponte. Matter of J-J-, 22 l&N Dec. 976 (BIA 1997). For a judge to consider taking a motion sua sponte, the applicant at a minimum need to demonstrate “a substantial likelihood that the result in his case would be changed if reopening is granted.” Matter of Becliford, 22 l&N Dec. 1216 (BIA 2000).

In fact, the BIA grants a number of such motions every year. What would be the qualifying factors? Usually, such factors include: a beneficiary’s grant of TPS status; a beneficiary’s ability to adjust based on an approved family petition; a beneficiary’s or family member’s health concerns. For example, in unpublished Board Of Immigration Appeals (“BIA) decision, the BIA exercised its sua sponte authority over DHS’ opposition, for a national of Yemen whose immediate relative petition was approved and who was a TPS holder and reopened his case. See Omar Ali Saeed Khamis, A200 576 514 (BIA Nov. 9, 2018). In unpublished BIA’s decision Henry Leonel Fontes Martinez, A098 736 254 (BIA Oct. 9, 2018) the Board exercised its sua sponte authority and reopened proceedings in light of eligibility for adjustment of status and present country conditions in Venezuela.

In unpublished BIA’s decision Francisco Ramirez Reyes, A072 988 089 (BIA Jan. 19, 2011), the Board reopened proceedings sua sponte in light of, inter alia, respondent’s sympathetic family circumstances. In unpublished BIA’s decision Alhaji Shoku Lamin, A079 236 239 (BIA July 18, 2017), the BIA reopened proceedings sua sponte for respondent with sickle cell disease who was beneficiary of approved visa petition by U.S. citizen spouse with whom he had one U.S. citizen child. In Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017) the BIA reopened proceedings sua sponte for a beneficiary of approved visa petition who had lived in the U.S. for sixteen years and had numerous U.S. citizen children. In Kanubhai Lalbhai Bhatt, A073 183 507 (BIA Oct. 28, 2013) the BIA reopened proceedings sua sponte over DHS opposition in light of serious health issues facing respondent’s lawful permanent resident wife.

If you have questions regarding sua sponte motion to reopen and procedure, please book an appointment by calling us at 917-885-2261 or emailing at office@shautsova.com

08 May 2019
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