Motions to reopen with the Immigration Service
Even after the U.S. Bureau of Citizenship and Immigration Services (USCIS) or the Immigration Court has denied your applications, there are ways to have your case reconsidered. Your attorney can file one of two types of motions or requests, a “Service motion to reopen” or “motions to reopen” with the USCIS.
The “service motion” requests the reopening of a case if the denial was due to the Immigration Service's error. If you receive a denial of your application because you failed to appear for your interview, but you never received an appointment notice, this was an error made by the USCIS.
In another instance, if your address did not change and you received all other correspondence regarding your case, except for an appointment notice, it would be safe to assume that the error occurred within the Immigration Service too. A request for the service to reopen the case on its own accord would be appropriate under these circumstances. Please note that each Service Center maintains its own detailed procedures on how to treat appeals and motions to reopen.
The second route to getting reconsideration at the USCIS is a motion filed by an attorney to “reopen.” The motion to reopen is on factual grounds and must be supported by affidavits and other evidentiary materials. The motion can be submitted to provide information or documents that were missing at the time of your interview.
If you failed to submit an appropriate affidavit of support, for example, and the officer denied your case claiming the I-864 was insufficient, you can motion to reopen your case while providing the missing evidence. USCIS does require a fee of $385 with these motions.
Please note that motions to reopen must be submitted within 30 days of the date on the denial letter. The bad news is that USCIS can take anywhere from three months to two years to make a decision on a motion to reopen.
The grant of a motion to reopen is at the discretion of the Board of Immigration Appeals and it will turn in part upon the likelihood that the applicant will be granted the relief sought. There are several reasons as to why the BIA may deny the reopening of the case such as the motion is filed after the deadline, the applicant is no longer eligible for relief, or the application is supported by inadequate explanations among others.
There are other options if the Immigration Court has denied your applications so it is best to seek the advice of an immigration attorney.
The “service motion” requests the reopening of a case if the denial was due to the Immigration Service's error. If you receive a denial of your application because you failed to appear for your interview, but you never received an appointment notice, this was an error made by the USCIS.
In another instance, if your address did not change and you received all other correspondence regarding your case, except for an appointment notice, it would be safe to assume that the error occurred within the Immigration Service too. A request for the service to reopen the case on its own accord would be appropriate under these circumstances. Please note that each Service Center maintains its own detailed procedures on how to treat appeals and motions to reopen.
The second route to getting reconsideration at the USCIS is a motion filed by an attorney to “reopen.” The motion to reopen is on factual grounds and must be supported by affidavits and other evidentiary materials. The motion can be submitted to provide information or documents that were missing at the time of your interview.
If you failed to submit an appropriate affidavit of support, for example, and the officer denied your case claiming the I-864 was insufficient, you can motion to reopen your case while providing the missing evidence. USCIS does require a fee of $385 with these motions.
Please note that motions to reopen must be submitted within 30 days of the date on the denial letter. The bad news is that USCIS can take anywhere from three months to two years to make a decision on a motion to reopen.
The grant of a motion to reopen is at the discretion of the Board of Immigration Appeals and it will turn in part upon the likelihood that the applicant will be granted the relief sought. There are several reasons as to why the BIA may deny the reopening of the case such as the motion is filed after the deadline, the applicant is no longer eligible for relief, or the application is supported by inadequate explanations among others.
There are other options if the Immigration Court has denied your applications so it is best to seek the advice of an immigration attorney.
Motions to reopen with the Immigration Court
There are two types of motions to reopen cases that can be presented to the immigration court. A motion to reopen based on changed circumstances and a motion to reopen based on ineffective assistance of counsel.
A motion based on changed circumstances must be submitted within 180 days from the date of the final decision and it must state, in detail, the changed circumstance.
For example, suppose your spouse is waiting to be naturalized and you are placed in deportation during this time. If you spouse is naturalized and obtains a green card, your circumstances have changed. You are now married to a green card holder who has applied for citizenship. Even though a judge has refused to grant you an adjournment to allow your spouse to naturalize and ordered you removed. Even if the Board of Immigration Appeals has denied your appeals, if your spouse becomes a US citizen, there is still hope. You must motion to reopen your case with the Board claiming changed circumstances because now your spouse is a US citizen and you are now eligible to apply your green card.
The second type of motion to reopen in the courts is based on ineffective assistance of counsel.
This motion is only appropriate where there is gross misconduct by your attorney. There is no time frame in which to apply for this type of motion and you do not have to show that you would win the underlying case to obtain a motion to reopen. You will have to show prejudice and therefore must produce evidence regarding your claim. However, if it has been a long time since the representation, you must explain why it took you so long to make such a claim.
Here is an example:
If, for instance, you were ordered deported five years ago because your attorney missed a deadline with the court even though you had provided all the necessary documents to your attorney, that is an error made by your attorney. Even five years later, you can file a motion to reopen based on the ineffective assistance of your former attorney. You must explain to the court why it took you five years for you to realize the problem though.
There are many other regulations that must be followed for this motion to be filed properly so you should contact an immigration attorney to see you can file such motion.
A second example could involve an order to deport you “in abstentia,” meaning that you failed to appear before the Immigration Court for you hearing. In this case, you can file a motion to reopen. There is no time frame in which to file such motion. However, judges are not required to reopen these cases. There is a court fee of $110 per motion.
The bad news is that it can take anywhere from three months to two years to get a decision on a motion to reopen.
A motion based on changed circumstances must be submitted within 180 days from the date of the final decision and it must state, in detail, the changed circumstance.
For example, suppose your spouse is waiting to be naturalized and you are placed in deportation during this time. If you spouse is naturalized and obtains a green card, your circumstances have changed. You are now married to a green card holder who has applied for citizenship. Even though a judge has refused to grant you an adjournment to allow your spouse to naturalize and ordered you removed. Even if the Board of Immigration Appeals has denied your appeals, if your spouse becomes a US citizen, there is still hope. You must motion to reopen your case with the Board claiming changed circumstances because now your spouse is a US citizen and you are now eligible to apply your green card.
The second type of motion to reopen in the courts is based on ineffective assistance of counsel.
This motion is only appropriate where there is gross misconduct by your attorney. There is no time frame in which to apply for this type of motion and you do not have to show that you would win the underlying case to obtain a motion to reopen. You will have to show prejudice and therefore must produce evidence regarding your claim. However, if it has been a long time since the representation, you must explain why it took you so long to make such a claim.
Here is an example:
If, for instance, you were ordered deported five years ago because your attorney missed a deadline with the court even though you had provided all the necessary documents to your attorney, that is an error made by your attorney. Even five years later, you can file a motion to reopen based on the ineffective assistance of your former attorney. You must explain to the court why it took you five years for you to realize the problem though.
There are many other regulations that must be followed for this motion to be filed properly so you should contact an immigration attorney to see you can file such motion.
A second example could involve an order to deport you “in abstentia,” meaning that you failed to appear before the Immigration Court for you hearing. In this case, you can file a motion to reopen. There is no time frame in which to file such motion. However, judges are not required to reopen these cases. There is a court fee of $110 per motion.
The bad news is that it can take anywhere from three months to two years to get a decision on a motion to reopen.
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