New York Lawyer's Legal Updates

Motion To Reopen With Immigration Court Or Board Of Immigration Appeals (BIA)

Author: New York Immigraiton Lawyer Alena Shautsova

A motion to reopen has to be filed if respondent has an order of removal and would like to avoid having the consequences of the order of removal; apply for a relief from removal, or rescind an absentia (default order of removal). Often, a person will find themselves in need to file a motion to reopen if they missed their hearing; if they filed for an adjustment of status and discovered they cannot adjust before USCIS because they already were ordered removed by an immigration judge, or perhaps, because they have an old order of removal issued at the time when they would not qualify for any relief...

Typically, there are deadlines as to when such a motion can be filed, and there is also a numerical limitation: a motion to reopen can be filed only one time. But, like with everything else in law, or almost everything else: there are exceptions. For example, a motion to reopen due to a lack of notice can be filed at any time; a motion to reopen due to county conditions change may be filed at any time and multiple times.

While considering a motion to reopen, one has to first settle on the reason for it: lack of notice, ineffective assistance of counsel, new evidence, changed country conditions, or perhaps, sua sponte court’s authority. At times, a change in the law would provide one a change to file a motion to reopen that was previously unavailable. This happened recently, with the Niz-Chavez case where the US Supreme Court rules in favor of immigrants who were receiving incomplete notices to appear. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)

The next step would be to determine if you are still within your deadline to file a motion to reopen which is generally speaking is 90 days from the date of the BIA order (or IS order when no appeal is filed), not from any decision in a federal proceeding; “an order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act”. Also, the time limitation does not apply to motions to reopen based on changed country conditions, or for a lack of notice, and the time may be “tolled” if a respondent argues ineffective assistance of counsel. Of course, a sua sponte motion to reopen may be filed at any time!

Special Rules for VAWA Motion to Reopen

Also, a VAWA motion to reopen for a petition under VAWA or for special rule cancellation of removal for VAWA may be filed within one year of the entry of the final order, but even than time limitations may be waived! The applicant must be present in the US to file this motion, and the numerical bar here is also waived. Note: I 360 petition does not need to be approved for the motion to be filed!

Section 240(c)(7)(C)(iv) states in pertinent part:

(iv) SPECIAL RULE FOR BATTERED SPOUSES, CHILDREN, AND PARENTS – Any limitation under this section on the deadlines for filing such motions shall not apply –

  1. if the basis for the motion is to apply for relief under clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B), or section 240A(b)(2) or section 244(a)(3); (II) if the motion is accompanied...
  2. by a copy of the self-petition that has been or will be filed with the Immigration and Naturalization Service upon the granting of the motion to reopen;
  3. if the motion to reopen is filed within 1 year of the entry of the final order of removal…; and
  4. if the alien is physically present in the United States at the time of filing the motion.

Finally, you may have a reason, you may be within your time, but then you also need to have a good answer to the question: what happens if your case is reopened. Do you have a possibility of relief from removal? Can you adjust your status, renew your asylum claim, ask the court to terminate the proceedings? What is your plan? Because, if you do not have such a plan, the court will not be entertaining your motion… For example, a motion to reopen filed six years after the removal on theory that Padilla allows the reopening, with no effort to challenge criminal conviction in criminal court was denied. Matos-Santa vs. Holder, 660 F 3rd 91 (1st Cir. 2011). In that case, a person did not demonstrate that he/she will have a chance of winning their case, as their criminal conviction was still in effect and reopening of the case would not change the final outcome of the case.

General Requirements

Any person who wishes to initiate a motion to reopen before the Board of Immigration Appeals (BIA) or Immigration judge (IJ) should satisfy at least three conditions1 with regard to the new evidence/basis to reopen: evidence must be material; evidence was unavailable at the time of the original hearing2; evidence was not presented or discovered at the time of the original hearing. Importantly, the evidence must be material and unavailable, the evidence must be “new” evidence capable of changing the outcome of the case. Any evidence that existed before and despite the former counsel instruction not to present it, will not be an adequate basis to reopen the hearing3.

What Shall Be Submitted With The Motion To Reopen

When one files a motion to reopen, he or she has to submit: a cover page, a body of the motion and argument, a legal brief, affidavits, and evidence, a proposed court order, a certificate of service; a filing fee where applicable, and of course, drafts of the application for relief he/she intends to seek if the case is reopened. However, again there may be exceptions. Where ineffective assistance is argued, for example, the BIA does not require the production of new evidence. Also, if a lack of notice is argued, logically, the moving party must produce evidence of this point as well (for example, a change of address form submitted by the respondent but ignored by the court/government; or for example, a copy of the notice of the hearing containing a wrong address…) Note: it is not necessary to pay for the application a draft of which is submitted with the motion to reopen. That application fee will be paid only if the case is actually reopened! USCIS.BIA-PM 3.4(i).

There is no fee for a motion to reopen based on lack of notice. At times, respondent is going to argue several grounds for reopen, and one may be fee based and another, if respondent wins their argument, does not require a fee. In my practice, I then always submit a fee to avoid rejection of the motion.

It is imperative to serve a copy of the motion to reopen on the opposing side of the government, and attach proof of that or certificate of service. An Immigration court practice manual will guide you as to what format to use when filing submissions with the Immigration court.

If you have an order of removal and need to determine your chances of re-opening your case, book a confidential consultation with NYC Immigration lawyer Alena Shautsova by calling 917 885 2261.

18 CFR § 1003.2(c)(1)

2Robles v. Barr, 940 F.3d 420, 422-24 (8th Cir. 2019)

3Alva-Arellano v. Lynch, 811 F 3rd 1064 (8th Cir. 2016).

22 January 2022
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