Ankündigungen » Motion to Reopen based on new evide

A person after removal proceedings may file a motion to reopen or reconsider with the Immigration Court or the Board of Immigration Appeals (the BIA) to receive a permission to restart the case. The procedure is defined by the Immigration and Nationality Act Salvador Perez Jersey , Immigration Court Practice Manual and ICE Memorandums on implementing the rules for filing the motions to reopen andor reconsider.

Motions to reopen after the Order Issued in Absentia

Quite often, such motions are filed after an Immigration court issues a final order of removal against a person who did not appear in court for hisher removal hearing. If such a person can demonstrate that heshe missed the hearing because heshe was unable to come (urgent personal circumstances; statefederal incarceration; lack of notice), the judge may grant the motion and re-open removal proceedings. A motion to reopen for lack of notice can be filed at any time. INA §240(b)(5)(C)(ii); INA §242B(c)(3)(B) (1995). It must be noted that depending on the time frame of service of the notice, the requirements as to the manner of service of the immigration proceedings notice may vary. One should consult with an Immigration lawyer to verify the requirements to the notice.

The Departure Bar

Under 8 CFR §1003.2(d) the BIA andor Immigration Court lack authority to reopen removal proceedings if the respondent has departed the United States after the proceedings have been completed. However Mike Moustakas Jersey , if an order was issued in absentia (without the person appearing in court), the departure bar is not applicable.

Timing to File Motion to Reopen

The law provides for 180 days to file a motion for reopen after the date of the order of removal if the person demonstrates that the failure to appear was because of exceptional circumstances. If the proceedings were missed for lack of notice or due to incarceration, the motion may be filed at any time. The deadline may be prolonged for the time of exceptional circumstances existed. Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) (ineffective assistance of counsel even if it occurs through a paralegal’s misrepresentation is an exceptional circumstance and also tolls the 180-day period).

It is important that if the motion is being filed after order in absenita Alex Gordon Jersey , the filing party does not need to seek government’s consent for it.

Factors BIA and Court will take into consideration


In the Matter of M–R–A–, 24 I&N Dec. 665, 674 (BIA 2008), the BIA listed several factors that play central part in granting of motions to reopen:
In determining whether a respondent has rebutted the
weaker presumption of delivery applicable in these circumstances Alcides Escobar Jersey , an
Immigration Judge may consider a variety of factors including, but not limited
to, the following: (1) the respondent’s affidavit; (2) affidavits from family
members or other individuals who are knowledgeable about the facts relevant
to whether notice was received; (3) the respondent’s actions upon learning of
the in absentia order, and whether due diligence was exercised in seeking to
redress the situation; (4) any prior affirmative application for relief Bo Jackson Jersey , indicating
that the respondent had an incentive to appear; (5) any prior application for
relief filed with the Immigration Court or any prima facie evidence in the
record or the respondent’s motion of statutory eligibility for relief, indicating
that the respondent had an incentive to appear; (6) the respondent’s previous
attendance at Immigration Court hearings, if applicable; and (7) any other
circumstances or evidence indicating possible nonreceipt of notice.

Motion to Reopen based on new evidence

Finally, a motion to reopen may be filed to reopen proceedings in which the respondent actually appeared and participated. Such a motion should be usually filed within 90 days of