APPEALS, MOTIONS TO REOPEN AND RECONSIDER
Appeals to the Board of Immigration Appeals
If the immigration judge has denied your application(s) for relief from removal and ordered your removal from the United States, you may file an appeal with the Board of Immigration Appeals (i.e. BIA). You may also appeal an immigration judge’s decision regarding your request for a custody redetermination (i.e. release from ICE custody on bond). It is important to note that the Department of Homeland Security also has the right to appeal the immigration judge’s decision if you are granted relief or set a good bond. This means that you need to be prepared to appeal to the BIA if you win or lose your case.
You must reserve your right to appeal (i.e. tell the immigration judge you want to file an appeal). Once you reserve your right to appeal, you have 30 days from the date the immigration judge ordered your removal to file a Notice of Appeal with the Board of Immigration Appeals. If you decide not to file a Notice of Appeal, the immigration judge’s decision will become a final order after and if you were denied relief from removal, you can be deported from the United States at any time after the 30 days has run.
When you file an appeal, you must identify errors made by the immigration judge. You will be given an opportunity to file a written brief in support of your appeal. Your brief is a written argument explaining in detail why you think the immigration judge’s decision was wrong. It is extremely important that you raise and discuss all the issues presented in your case. While your appeal is pending, you have the right to remain in the United States.
The Board of Immigration Appeals may reverse the immigration judge’s decision, may agree with the immigration judge’s decision, or send your case back to the immigration judge for further proceedings. If the BIA affirms the immigration judge’s decision, you may have the right to file a petition for review with the U.S. Court of Appeals with jurisdiction over the place where your removal proceedings were conducted. You must file a petition for review within 30 days of the BIA’s decision.
Motions to Reconsider
A motion to reconsider is an important tool if you feel the Immigration Judge (i.e. IJ) or Board of Immigration Appeals (i.e. BIA) incorrectly applied the law, existing facts, and/or procedure. For example, a motion to reconsider is appropriate where the IJ or BIA overlooked a crucial fact or held you to a higher burden of proof than required by law. If, on the other hand, you wish to present new facts or circumstances, you must file a motion to reopen.
You have the right to file one motion to reconsider. In general, a motion to reconsider must be filed within 30 days of the date the Immigration or BIA issued its decision. You must specify the errors of law, fact, or procedure in the decision you are challenging. You must also cite appropriate statutes and case law to support your position as well as identify the errors in the administrative record. You can also file a motion to reconsider if there has been a change in the law. In such circumstances, you must identify the specific changes of law and how it applies to the existing facts.
Motions to Reopen
A motion to reopen is an important tool if you have been ordered removed. A motion to reopen allows you to ask the immigration judge or Board of Immigration Appeals (i.e. BIA) to consider new or changed facts that either did not exist or were not known to you at the time you were last before the Immigration Court. Some common grounds for seeking reopening of your removal or deportation proceedings include:
- Country conditions have worsened in the country to which you have been ordered removed or deported making it unsafe for you to return;
- Ineffective assistance of your prior attorney, which prejudiced your case; or
- Legal and/or factual arguments that you are not/were not deportable as charged or are eligible for relief based on newly vacated convictions, changes in personal circumstances that impact eligibility for relief, violations during your original removal or deportation proceedings that impacted your ability to challenge removability or apply for relief, or new case law that affects your removability or eligibility for relief from removal.
You have the right to file one motion to reopen. A motion to reopen must typically be filed within 90 days of the order of removal or deportation. However, this deadline can be excused if equitable tolling is warranted, country conditions have changed and you fear harm in the country to which you have been ordered removed or deported, you have been subjected to battery or extreme cruelty by a United States citizen or lawful permanent resident, the immigration judge or BIA decides to use its own authority to reopen a case, or you and the Department of Homeland Security agree the removal or deportation proceedings should be reopened.
When you file a motion to reopen with either the Immigration Court or Board of Immigration Appeals, you must state the new facts that you will prove if you are granted a new hearing. Your motion to reopen must be supported by affidavits and other evidence. This evidence must be material and not have been previously available to you during your previous removal or deportation proceedings before the Immigration Court.
If you are seeking to reopen your removal proceedings to file a new application for relief from removal, you must include a copy of the application you intend to file in the reopened removal proceedings along with supporting documentation to show you are prima facie eligible for the relief requested.
When the immigration judge or BIA reopens a removal or deportation proceeding, the existing removal or deportation order is vacated.