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Motions to Reopen Attorney
Sometimes the USCIS or the Administrative Appeals Office may pass unfavorable orders. A person may be dissatisfied with the finding made by the Immigration Court and wish to have the matter re-heard to potentially arrive at a more favorable outcome.
Although challenging, it may be possible to file a motion to reopen based on the presence of previously unavailable material evidence that has arisen that the court should consider. It is critical that documentary evidence of the new facts be presented. This principle is strictly applied, so it is impossible to rehash old facts. In the absence of new facts and documentary evidence, such as affidavits and other evidentiary material of the latest facts, the motions to reopen will be generally refused.
If you believe that there is new evidentiary material that, if considered by the court, may lead to immigration relief in the form of a different decision, then make sure you see a skilled immigration lawyer to assess your chances of success.
Andrew T. Thomas, Attorneys at Law, presents the requisite immigration law skills and experience to assist by providing you with competent legal representation.
Who Can File a Motion?
To file a motion to reopen, you must be a person of standing in the initial proceedings. Alternatively, you may be the representative of such a person. If it is found that the person submitting the appeal doesn’t have legal standing, the request will be rejected as improperly filed, and no refunds for any filing fees will be made.
When Can You File a Motion to Reopen?
In most cases, filing for a motion to reopen has to be done within 30 days from the date of the unfavorable order. If the decision was mailed, then 33 days is allowed.
If you failed to file within the period but can prove that the delay was reasonable and was not within your control, you may be permitted to file a motion to reopen outside the prescribed period. For example, if the applicant failed to appear at the former hearing because they were in state or federal custody or could not appear due to exceptional and extreme hardship such as a serious illness.
There is no corresponding discretion regarding an untimely motion to reconsider.
How Do You File a Motion?
To file a motion, you have to fill out Form I-290B, Notice of Appeal or Motion.
Where Do You File the Motion?
It is critical to file the motion at the correct address, available on the Direct Filing Addresses for Form I-290B, Notice of Appeal, or Motion page. If you send it to the wrong address, it will be returned without being processed, resulting in wasted time.
How Long Does it Take Before the Motion is Adjudicated?
The number of cases the judge has largely determines the time it takes for a judge to decide. Typically it takes about 90 days for a USCIS field office or service center to adjudicate upon a motion. On the other hand, the Administrative Appeals Office tries to give a decision within 180 days.
Adjudication of complex cases can take much longer than anticipated.
What Is the Difference Between a Motion to Reopen and an Appeal?
An appeal is made to an authority different from the one who made the legal finding. A request is then made to review and reverse the decision arrived at in the original hearing.
Motions to reopen are made when the petitioner files the case to the same authority that made the finding in the first instance.
What Is the Difference Between a Motion to Reopen and a Motion to Reconsider?
There are essential differences between a motion to reopen and a motion to reconsider.
Motion to Reopen
Motions to reopen are based on documentary evidence of new facts.
Motion to Reconsider
A motion to reconsider is founded on the incorrect application of law or policy, which resulted in the initial decision. No new facts or additional evidence is permissible in a motion to reconsider, and the facts must have been the same as those presented in evidence when the proceeding was heard. An example where a motion to reconsider would be filed is when the immigration judge denied the immigrant their constitutional rights.
Based on the facts, it is possible to file for both a motion to reopen and a motion to reconsider simultaneously. If this is done, each motion will be heard separately. Both motions could be granted or denied, or one could be granted, and the other rejected.
How Can an Attorney Help?
If you have lost your immigration case and are faced with an unfavorable decision, we may be able to help.
Our skilled and professional lawyers can assess your case and advise you on the chances of success for a motion. We can draft an affidavit explaining your grounds for a motion against the final order.
We offer a complete range of immigration services, including solutions pertaining to immigration appeals and bonds and rejected appeals. Your first consultation is free, so give us a call today!
Frequently Asked Questions
Is There Anything Else the Brief Must Contain?
Every brief must contain a written statement about whether the unfavorable prior decision has been or is the subject of any judicial proceeding. If yes, the court, nature, date, and status or result of the proceeding must be specified.
Can the Court Enter Its Own Motion?
The court can enter its own motion. This is sometimes called a service motion or a sua sponte motion. If it does so and there is a chance that the new decision might be unfavorable to the appellant, the appellant will be notified and given 30 days to submit a brief. The 30-day deadline can be extended if the appellant shows good cause.
What Is Fugitive Disentitlement Doctrine?
The fugitive disentitlement doctrine is an equitable rule that allows courts to limit the access of a fugitive to the courts of the United States. It holds that a fugitive who evades the authority of the judicial system may not seek relief from it.
