As discussed in Part 1, a denial of an immigration petition is rarely a death knell as there are various post-denial or post-conviction forms of relief available to individuals. The difficult part is determining which option to exercise and an immigration attorney, like those at The Law Office of George K. Gomez, P.A., can help determine which legal option best fits your needs after analyzing the unique facts and law specific to your case.
Part 1 discussed the various forms of a Motion to Reopen. Here, we will discuss Motions to Reconsider both at the USCIS and Immigration Court levels.
Motions to Reconsider before USCIS
Unlike a Motion to Reopen, a Motion to Reconsider does not seek to introduce new facts or evidence but instead seeks reconsideration of an adverse decision on an immigration petition based upon an incorrect application of law or policy.
Importantly, this misapplication of law or policy must be based on the record evidence, since new facts or evidence will not be considered in a Motion to Reconsider.
As noted by USCIS, a “motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy. Citing to an authority that is not relevant to the issues raised on motion will not meet the eligibility requirements of a motion to reconsider.”
Form I-290B, Notice of Appeal or Motion is the proper immigration form that is used for filing a Motion to Reconsider. 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 Reconsider before the Immigration Court
In line with Motions to Reconsider with USCIS, a Motion to Reconsider with the Immigration Court seeks to identify an error in law or fact in an Immigration Judge’s decision. In addition, a Motion to Reconsider may seek to call attention to a new development or change in law which affects an Immigration Judge’s prior decision.
It bears repeating that a Motion to Reconsider does not seek to introduce new facts or evidence as it is based solely on the evidence in the record.
A Motion to Reconsider must be filed within 30 days of the Immigration Judge’s order. Unless otherwise specified by the Immigration Judge, any responsive pleadings to a Motion to Reconsider must be filed within ten days after the motion has been received by the Court.
Generally, a party seeking to file a Motion to Reconsider is limited to one motion. Note that a party may seek to file a Motion to Reconsider a denial of a Motion to Reopen. There are exceptions to the numerical limitations, so it is important to consult with an experienced immigration attorney like those at The Law Office of George K. Gomez, P.A. to discuss whether exceptions apply to the unique facts of your case.
It is important to note that a Motion to Reconsider does not automatically stay an order of deportation. In those situations, a stay of removal would be the appropriate remedy.
Similar to Motions to Reopen, the location of where to file a Motion to Reconsider depends on which entity last had contact with the case. For example, if an Immigration Judge ordered the non-citizen removed and no appeal has been filed, then the Immigration Court retains jurisdiction over the Motion to Reconsider. 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.
Our South Florida Immigration Attorneys Can Help!
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 Reconsider 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 Reconsider!
Serving Miami-Dade, Broward, Monroe, and Palm Beach Counties as well as providing nationwide representation, The Law Offices of George K. Gomez, P.A. is well versed in immigration law. If you need an immigration lawyer or just need more information on the immigration-related legal services we can offer, our service areas, or wish to learn more about our managing attorney, contact us at (305) 539-0991, or use our online contact form.