What can you do if your petition or application with the United States Citizenship and Immigration Services (USCIS) is denied? You can either file a new petition, file a motion to reopen the petition that was denied, or file a motion to reconsider the petition that was denied.
What Is a Motion To Reopen or Reconsider at USCIS?
What can you do if your petition or application with the United States Citizenship and Immigration Services (USCIS) is denied? You can either:
- File a new petition
- File a motion to reopen the petition that was denied
- File a motion to reconsider the petition that was denied
The two motions can be filed either separately or together, depending on the circumstances of the case.
A motion to reopen needs to explain any new facts and be supported by evidence not previously included. In addition, a motion to reconsider must be supported by other case law showing that the decision was based on an incorrect application of law or USCIS policy.
You must submit either motion within 30 days of the decision unless the delay was for a reasonable period of time and the reason was beyond your control. File these motions by mailing a completed Form I-290B, Notice of Appeal or Motion to the applicable mailing address.
What Are the Differences Between an Appeal, a Motion To Reopen, and a Motion To Reconsider?
The Executive Office will handle your immigration court case for Immigration Review (EOIR), composed of immigration courts and the Board of Immigration Appeals (BIA). If you are facing a removal order from the EOIR, there are a few types of motions you can file.
An appeal is typically a request made to a higher authority than the one that made the original decision. You can think of it as going to the manager after talking to an employee.
For example, in your immigration court case, the immigration judge (IJ) decides to issue an order of removal. You have 30 days to file a notice of appeal before the decision becomes final, and you are deported. After that, you need to file your appeal with the BIA to review the IJ’s decision. If no appeal is filed, the decision becomes final.
If the BIA agrees with the IJ, you may appeal to a higher court by submitting a petition for review with the Ninth Circuit Court of Appeals.
A Motion To Reopen
A motion to reopen is a request made after an order of removal has been issued. This motion can only be filed within a limited time, and you may only file one motion to reopen at a time. This motion allows the IJ or BIA to consider previously unavailable evidence.
Some reasons to file a motion to reopen are:
- Your attorney failed to represent you properly (ineffective assistance of counsel).
- A change in circumstances has made you eligible for immigration relief (e.g., cancellation of removal, fraud waiver, etc.).
- A newly-issued case law affects your removability.
- There was some violation in the proceedings that affected the case’s outcome.
Generally, the motion to reopen must be received by either the IJ or BIA (depending on who last touched the case) within 90 days of the final order of removal.
In cases where a respondent did not show up to court because they never received notice from the EOIR, there is no time limit to file a motion to reopen. However, if you want the order of removal to be canceled due to your failure to appear, you must file a motion with the IJ within 180 days if claiming exceptional circumstances.
Suppose a motion to reopen is based on domestic violence grounds for battered spouses, children, or parents of abusive U.S. citizens or lawful permanent residents.
In that case, the move to reopen must be filed within one year of the final order of removal unless there are exceptional circumstances.
If the Department of Homeland Security (DHS) agrees to join a motion to reopen, that motion does not have a time limit. In addition, an IJ or the BIA can always elect to reopen based on its own discretion.
A Motion To Reconsider
The main difference between a motion to reconsider and a motion to reopen is the evidence considered. A motion to reopen introduces new facts, but a motion to reconsider asks the IJ or BIA to take another look at your case. You must establish that the decision was made incorrectly due to misapplication of law or fact. This claim must be supported by:
- A precedent or adopted decision (i.e., a decision made in a previous case that became part of the official policy)
- A statutory or regulatory provision
- Statement of policy from USCIS or the DHS
You must file a motion to reconsider within 30 days of the final order of removal.
What Can I Expect From the Motion To Reopen Court Process?
In the process for a motion to reopen, you can expect a review of the decision that confirms whether or not that decision was lawful and made in good faith. In some cases, it can function as a sort of “confirmation” for the original court immigration decision.
Before filing a motion to reopen, a decision must already have been made in immigration court. Even if you feel like your case was improperly handled, you need to wait until a decision is made before you can pursue further action.
You can think of a motion to reopen as a safeguard to ensure that the law has been properly carried out — it’s a method of last resort rather than a first resort.
The motion to reopen in immigrant court or the BIA can be a difficult journey. It’s a journey that starts with a decision that doesn’t work out in your favor. Then, to get a successful motion in place, you will have to prove that the decision was wrongly made.
To better understand what your case requires and your best options, please contact us at the Reeves Immigration Law Group today. Our experienced immigration lawyers are here to help.