Once an Immigration Judge has ordered removal or deportation and even when a case is on appeal, there still may be ways to cancel or rescind a removal order and have a case returned to the Immigration Judge. In general, only one motion to reopen is permitted and it must be filed within 90 days of the removal order. Even when the time and numerical limitations have passed, there may be exceptions that apply.
The basis and requirements for a motion to reopen vary depending on the facts of the case. The following are a few examples of when a motion to reopen can be filed:
- New Evidence: motions to reopen may be based on new, material evidence or a new application for relief that wasn’t previously available. For example, if a person has a removal order but marries a US citizen and is otherwise eligible for a green card, a motion to reopen may be possible, depending on timing and where the case is in the appellate process.
- Sua Sponte Reopening: The Judge and the Board of Immigration Appeals have power to reopen the case “sua sponte,” or on its own motion. An applicant can present new arguments, evidence and facts in support of a request for the judge or the BIA to reopen sua sponte.
- Joint Motions to Reopen : If the government attorney agrees to a joint motion to reopen, the judge is more likely to grant the request.
- Lack of Notice: If an order of removal was issued in absentia, or because the person failed to appear for a hearing, there may be ways to reopen the case – even years after the order was issued – depending on the evidence in the case.
- Ineffective Assistance of Counsel: Unfortunately some attorneys or some notaries acting as attorneys defraud or provide such poor legal representation that a case may be reopened because the former attorney’s actions prejudiced the case.
- Changed Country Conditions: For denied asylum cases, a motion to reopen may be available when country conditions have significantly worsened since the last immigration court hearing.
If you have an order of removal and think you may be eligible for reopening, obtain a full copy of your immigration file right away and contact our office for a review of your case and an analysis of your options.