An Introduction to Motions to Reopen, Motions to Reconsider, and Appeals: Motions to Reopen
Updated: Mar 7, 2022
The denial of an immigration petition before USCIS or the immigration court is not always the final word on a case. Indeed, there are a slew of legal options available to obtain the immigration relief that you desire. These options include Motions to Reopen, Motions to Reconsider, and Appeals. Knowing which options to exercise can be a difficult task, and The Law Office of George K. Gomez, P.A. can help you determine which legal option best fits your needs after analyzing the unique facts and law specific to your case.
Motions to Reopen before USCIS
In the context of immigration petitions filed with USCIS, a Motion to Reopen is a request to reopen and review the denial decision issued by the field office that issued the decision (or a decision made by the National Benefits Center or Administrative Appeals Office) based on new facts.
The inclusion of new facts is a critical requirement of a motion to reopen. These new facts must be supported by affidavits or other documentary evidence demonstrating an applicant’s eligibility for the desired immigration benefit at the time they filed the underlying application or petition.
While it may seem obvious, new facts mean just that – new facts. An applicant cannot simply restate facts or resubmit evidence that were previously submitted to USCIS. To satisfy the new fact requirement, the Motion to Reopen must contain facts that were not previously submitted in the proceeding. Importantly, the new facts must be relevant to the issues raised on motion. Submitting irrelevant but new facts will not help satisfy the new fact requirement.
Form I-290B, Notice of Appeal or Motion is the proper immigration form that is used for filing a Motion to Reopen. This form is filed with the Administrative Appeals Office (hereinafter referred to as “AAO”) of USCIS. Generally, Form I-290B must be filed within 30 days of an adverse decision (or within 33 days if the adverse decision was mailed).
The AAO has the discretion to accept late filings if the appellant can show the filing delay was reasonable and uncontrollable. While the AAO adjudicates Form I-290B, the form should not be filed directly with the AAO. There are specific filing addresses depending on the type of petition or decision being appealed. These addresses can be found here.
Motions to Reopen before the Immigration Court
Like Motions to Reopen before USCIS, Motions to Reopen before the Immigration Court concern requesting the Immigration Judge (or the Board of Immigration Appeals) to reopen an immigration proceeding for the purpose of considering new and previously unavailable evidence. This typically occurs when an order of removal has been entered against a non-citizen. When an Immigration Judge or the Board of Immigration Appeals reopens a case, the existing removal order is vacated.
Common grounds for filing a Motion to Reopen include, but are not limited to:
Raising claims of ineffective assistance of prior counsel which prejudiced the case,
Raising arguments that a non-citizen was not deportable as charged or is eligible for relief based on newly vacated convictions,
Changes in personal circumstances that impact eligibility for relief,
Violations during the underlying immigration proceeding that affected the non-citizen’s ability to challenge removability or apply for relief, OR
Subsequently issued case law that affects removability or eligibility for relief.
Like Motions to Reopen filed with USCIS, a non-citizen must demonstrate that they are prima facie eligible for the relief sought.
Unlike USCIS motions to Reopen which must be filled within 30 days of an adverse decision, the Immigration Judge or the Board of Immigration Appeals must receive the motion to reopen within 90 days of the final removal order. Motions filed more than 90 days after entry of the removal order may still be reviewed by the Immigration Judge or the Board of Immigration Appeals upon a showing that the deadline merits equitable tolling.
While non-citizens are generally limited to filing one Motion to Reopen, there are exceptions to this rule. Consulting with an experienced immigration attorney like The Law Office of George K. Gomez, P.A., is critical to determine if any exceptions apply to the particular facts of your case.
Generally, the location of where to file a Motion to Reopen depends entirely on which entity last had contact with the case. For example, if an Immigration Judge ordered the non-citizen removed and no appeal was filed, then the Immigration Court retains jurisdiction over the Motion to Reopen. However, if the non-citizen appealed the removal order to the Board of Immigration Appeals, the Board would have jurisdiction over the Motion and it would need to be filed with the Board.
Need help reopening your immigration case? Call us today for a Free Consultation!
If you have been denied relief with USCIS or with the Immigration Court, The Law Office of George K. Gomez, P.A. encourages you to contact us for a free consultation. Our knowledgeable immigration attorneys can review your immigration case and determine whether a Motion to Reopen would result in a second chance at relief. But don’t delay – based on the type of case you have, you may have as little as 30 days to file your Motion to Reopen!
Call our law firm at (305) 539-0991 to find out more about how we can help you. If you have questions, you can also fill out our contact form. We offer immigration attorney services for our clients all over South Florida!