By Attorneys Gregory J. Boult & Nancy E. Miller
By the latest estimate, approximately 11 million non-citizens are in the United States without status. They may have come in without papers or they may have stayed beyond the time allotted them. Many of these people have been ordered deported by an Immigration Judge but have failed to leave the country as required. These individuals often continue with their lives just as they had prior to being ordered deported. However, they now live in fear and despair – fear that at some point they will be arrested and returned to their native country; and despair that there is no way to resolve their legal status since they have been ordered deported. While fear and despair are certainly understandable under these circumstances, all hope is not lost. There are options available, the most notable of which is the reopening of their deportation proceedings.
Filing a motion to reopen is generally a challenging task due to the various legal restrictions which limit the circumstances under which such a motion can be filed. Due to these restrictions, many individuals are simply ineligible to seek the reopening of their cases. This is especially true for those whose deportation orders are years, or even decades, old. However, there is an exception to these restrictions – an exception which is little known, but often extremely effective.
The legal restrictions which preclude many individuals from seeking the reopening of their cases can be effectively waived if the government agrees to the reopening. An agreement with the government thus allows individuals, many of whom may not otherwise qualify, to have their cases reopened. However, the government will not even consider such a request unless the noncitizen has a means of legalizing his or her status in the United States.
Many immigrants only become eligible to legalize their status after they have been ordered deported. An example would be someone who married a United States citizen after the issuance of his deportation order. If he does not meet the strict legal requirements to have his case reopened, but is otherwise eligible to apply for a green card based upon his marriage to a United States citizen, he would be a strong candidate to seek an agreement with the government to reopen his case. However, the government reviews such requests with great scrutiny.
Just because an immigrant becomes eligible to legalize his status in the United States does not mean that the government will automatically agree to the reopening of his case. The government considers each request carefully to determine whether the person should be afforded a ‘second chance’ before the Immigration Judge. In doing so, the government usually considers a variety of factors which include the reason or reasons the person was initially ordered deported; why she remained after being ordered deported; whether she has any criminal convictions; what hardships the non-citizen and/or his family members with legal status will suffer if the case is not reopened; and, whether the individual is a person of good moral character. This last factor can include arrests which did not result in convictions and misrepresentations made in order to obtain an immigration benefit.
The process of seeking an agreement to reopen deportation proceedings is informal and takes place without involving the court. A written request to join in reopening, stressing the positive factors and explaining the negative ones, together with substantial supporting evidence is submitted to the government for review. The decision is a matter of discretion and a refusal to join cannot be appealed. However, if the government does agree to the reopening of a case, a joint motion to reopen is prepared and submitted to the court for the Immigration Judge’s signature. Once the Immigration Judge signs the joint motion to reopen, the order of deportation is vacated and a new hearing is scheduled before the Immigration Judge.
Some individuals unnecessarily spend years in fear after being ordered removed when options are available. An experienced and knowledgeable immigration attorney will review the noncitizen’s immigration history to determine exactly what options are available and to represent individuals in attempting to reopen their cases.
If someone with a deportation order has previously been advised that nothing can be done, now is a good time to seek a second opinion. Over the passage of time, changes in the law or facts may provide new avenues to legalize one’s status. These changes may also strengthen the case to be made for reopening. Fear and despair should never be accepted when legal status may be a readily obtainable alternative.
