What is a Motion to Reopen?
A motion to reopen a final removal order is an important tool that immigrants can use in their immigration cases. It allows these individuals to ask either the immigration judge (IJ) or the Board of Immigration Appeals to consider material and previously unavailable evidence and vacate the existing order. If this motion is granted in your favor, the underlying removal order is vacated and the alien is no longer deportable until the pendency of the reopened removal proceedings. This motion must be supported with evidence sought to be offered that is material and was not available and could not have been discovered or presented at the former hearing.
A motion to reopen can be filed for the following one or more reasons:
- Ineffective assistance of prior counsel which prejudiced the case; and
- Arguments that an individual is not/was not deportable as charged or is eligible for relief based on the following:
- newly vacated convictions;
- changes in personal circumstances that impact eligibility for relief;
- violations during the underlying proceeding that effected ability to challenge removability or apply for relief; or
- subsequently issued case law that affects removability or eligibility for relief.
In addition, a motion to reopen can be filed based on the changed country conditions for fear-based application for relief such as Asylum, Withholding of Removal, and Convention Against Torture.
A motion to reopen must be filed within 90 days from the date of the final removal order. In other words, this motion must be received by either the Immigration Court or the Board of Immigration Appeals within 90 days from the date of the final removal order. This general 90-day filing period does not apply if the motion to reopen is being filed for change in country conditions. For changed country condition, a motion to reopen can be filed at anytime, however, it is better to to file this motion as close as practically possible to the date and time of when conditions in alien's native country changed.
Where to File: Immigration Court or Board of Immigration Appeals
In general, a motion to reopen is filed either with the immigration court or the Board of Immigration Appeals, depending on which entity last had contact with the case. Thus, if an immigration judge ordered an alien to be removed and the alien did not appeal that decision then the motion must be filed with the immigration court. If an alien appealed the decision to the Board of Immigration Appeals and it was denied or if the appeal is still pending before the Board of Immigration Appeals then the motion must be filed with the Board of Immigration Appeals.
Checklist for Filing Motion to Reopen
The following material should be included in your motion to reopen packet:
- A cover letter (to the IJ or BIA);
- An entry of appearance: Form EOIR-27 (BIA) or Form EOIR-28 (IJ); •
- A motion, which includes all possible legal bases for reopening and all new facts that would be established in reopened proceedings:
- The motion should include an introduction, a statement of facts and of the case, a section outlining the standard for reopening, legal arguments (addressing all bases for reopening and any equitable tolling claim and demonstrating prima facie eligibility for relief), and a conclusion stating the relief requested.
- The motion must state whether the order has been or is the subject of any judicial proceeding and whether the subject of the order has been or is the subject of any criminal proceeding. If so, the motion must provide additional information and/or include a statement from the movant regarding that proceeding. 8 C.F.R. §§ 1003.2(e); 1003.23(b)(1)(i).
- An exhibit list and exhibits, including:
- A copy of the existing removal order of which reopening is sought;
- Any application for relief that would be sought in reopened proceedings, along with any supporting documents, 8 C.F.R. §§ 1003.2(c)(1); 1003.23(b)(3);
- Evidence of compliance with Matter of Lozada, 19 I&N Dec. 637, if making an ineffective assistance of counsel claim;
- Evidence to support equitable tolling of the filing deadline, including evidence of the extraordinary circumstances that prevented timely filing (e.g., vacated conviction) and diligence (e.g., affidavits from the individual and current counsel);
- If seeking reopening from an immigration court, a proposed order;
- A filing fee or fee waiver application (Form EOIR-26A for the BIA), unless the only form of relief sought in reopened proceedings is asylum, withholding of removal or CAT protection or termination of proceedings;
- A certificate of service.
Inderraj Singh, Esq., an experienced Immigration Attorney in California, is here to help you and your loved ones get the protections you need and the freedoms enjoyed by everyone else in the United States. Contact us either using our online form or by calling us at 661-599-8884 to schedule a free case assessment. We are here to get you the help you need.
The Singh Law Office—a California Immigration lawyer—can help you protect your important immigration rights before the Court. Inderraj Singh, Esq., aggressively fights for his clients and successfully appeared in immigration courts to protect the interests of his immigrant clients.
Disclaimer: The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. SINCE A MOTION TO REOPEN IS A COMPLEX PROJECT, YOU SHOULD SEEK LEGAL ADVICE BEFORE FILING THIS MOTION.