Strategies for Motions to Reopen

David L. Kolko, Denver, COMichael Sharma-Crawford, Kansas City, MORekha Sharma-Crawford, Kansas City, MO

BASICS

Motion to Reopen

• Seeks to reopen proceedings so that new evidence or eligibility for previously unavailable relief can be presented and a new decision entered on a different factual record.

Motion To Reconsider

• Seeks to have to have the decision below reconsidered by specifying errors in facts or law contained within that decision which are supported by pertinent authority

Statutory/Regulatory Authority

• 8 USC §1229a(b)(5)(C) – Immigration Court

• 8 CFR §103.5 – USCIS

• 8 CFR §1003.2 – Board of Immigration Appeals

• 8 CFR §1003.23 – Immigration Court

USCIS

Motions to Reopen

Filing Requirements for Motions to Reopen

• File within 30 days of the unfavorable decision, 33 days if mailed.

• AAO also has discretion to excuse untimely filing if applicant demonstrates that delay was reasonable and beyond her control.

Where to file

•Do NOT mail to AAO, find corresponding address

Filing fee and waivers • Filing fee is $630 and nonrefundable• Fee Waiver available under 8 CFR §

103.7(c)if applicant shows inability to pay

Field Offices/ Service Centers

USCIS field offices & service centers have jurisdiction over motions relating to its decisions.

Each service center maintains its own detailed procedures.

Field officer decision can be appealed to the AAO, if the original decision was appealable to AAO.

Administrative Appeals Office (AAO)

AAO Motions must be based on documentary evidence of new facts.

AAO has authority to sua sponte reopen

Does not guarantee a result. Reopened proceedings can:

Affirm the prior decisionReverse the prior decisionIssue a new decision.

Cautionary Tale • Unless USCIS directs otherwise, the filing of a

motion to reopen does not delay the execution of any decision in a case or extend a previously set departure date.

• Prior to issuing a decision, the AAO may issue a request for evidence (RFE) or notice of intent to deny (NOID).

Immigration Court

Reconsidering

• File within 30 days of the IJ’s decision

• $110.00 filing fee

Reopening

• File within 90 days of the IJ’s decision

• $110.00 filing fee

In absentia Orders

No Notice Cases: • Did not receive proper notice of the

hearing. BUT, if attorney was served will have to show ineffective assistance of counsel.

• May file anytime• No filing fee required• Automatic stay of removal

until IJ can review

Exceptional Circumstances Cases: • serious illness of the alien, or • serious illness or death of the alien's

spouse, child or parent, but • not including less compelling

circumstances beyond the control of the alien.

Must file within 180 days of final order

Do not have to have to rescind and can reopen anytime if seeking asylum based on changed country conditions.

Motions based on Ineffective assistance of counsel: Lozada requirements: if shown, would be an exceptional circumstance

Sua Sponte: limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where enforcing them might

result in hardship.

Joint Motions: DHS agrees. Can be filed at anytime and in the interest of justice.

Must be supported by affidavits, other evidence and applications

Are generally disfavored and movant bears heavy burden

May be used if there is a new law or intervening circumstances which may change the result of the case.

Generally, must strictly comply with regulatory requirements. Always check if fee is required.

Board of Immigration Appeals

• Motions to Reopen or Reconsider; same time and numerical limits as at the IJ. Same burden of proof as at the IJ. No fee for filing.

• Can be filed from outside the U.S. Lari v. Holder, 697 F.3d 273. (5th Cir. 2012); Garcia Carias v. Holder, 697 F.3d 257 (5th Cir. 2012)

Federal Court

• Dada v. Mukasey, 554 U.S. 1 (2008)

• Kucana v. Holder, 130 S. Ct. 827 (2010)

• Mata v. Holder, No.13-60253 (5th Cir. May 16, 2014) Cert. Granted 14-185;

Best Practices

Motions to Re-open are heavily fact based: was delay reasonable, was notice proper, was there exceptional circumstances. Make sure your client’s story is not lost in the legal battle.

The automatic stay provisions only apply until the Immigration Court makes a decision. If you appeal that decision remember you may need to file a Stay of Removal.

Filing a Motion to Re-open, under Dada, will automatically terminate the grant of Voluntary departure. Voluntary departure should not be an automatic request.

Once commenced, DAPA/DACA cases may require creative use of Motion to Reopen in order to make sure there is no final order after January 1, 2014

In motion practice before USCIS any briefs or additional evidence must be submitted concurrently with the motion.

Generally, a Motion to Reopen must be filed within 90 days of final order of removal or deportation.

MTRO can be filed even if you have no appeal rights.

You can not simply resubmit the same evidence or assert a new fact without including documentary evidence

Make sure that if you are asserting eligibility for new relief that all applications for that relief are submitted with your Motion

If your client is detained or the potential of detention exists, let ERO know about your Motion as far in advance as possible. Give them a copy as well upon filing.

Don’t threaten to file a Motion and then fail to follow through.

The beneficiary of a visa petition that is denied or revoked by USCIS may not file an appeal or a motion for that visa petition.

An I-130 or Petition for Widow(er) filed on Form I-360 which was denied or was revoked by USCIS may not be appealed on Form I-290B. Use Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals.

There are no appeal or motion rights for Form I-601A or Form I-821D. But review may be obtained through the Ombudsman.

Appeals for Special Agricultural Worker (SAW) or Legalization Application must be filed on Form I-694, Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act.