When faced with an unfavorable decision in the immigration court, you may feel like it is the end of the road. However, legal options are available to challenge and potentially overturn such decisions. One such option is the motion to reconsider.
A motion to reconsider allows you to request a review of your case based on claims of legal, factual, or procedural errors made in the initial decision. If successful, you can overturn the initial decision. Contact us if you need help filing a motion to reconsider.
What is a Motion to Reconsider?
A motion to reconsider is a formal request to an immigration court for a review and reassessment of a previous decision. The motion is grounded in the belief that the original decision was flawed due to errors of fact, law, or procedure.
The primary purpose of a motion to reconsider is to correct legal errors made by the immigration judge in the original ruling. The legal foundation for a motion to reconsider is the Immigration and Nationality Act (INA). Section 103.5 of the Code of Federal Regulations (CFR) also outlines the procedural requirements and standards for filing, including deadlines and content specifications.
To be successful, a motion to reconsider must clearly articulate the specific legal or factual errors that justify reconsideration. It must include detailed arguments and evidence that demonstrate these errors, often referencing case law or statutory provisions that were misapplied.
What is the Difference Between a Motion to Reopen and a Motion to Reconsider?
A motion to reopen and a motion to reconsider are both post-decision remedies in immigration court, but they serve different purposes and are based on distinct grounds. A motion to reopen is filed to present new evidence or change circumstances not available at the original hearing. The goal is to re-evaluate the case based on this new information.
This motion is typically used when new facts or evidence that could significantly impact the case outcome come to light. Examples include discovering new evidence previously unavailable or changes in the individual's situation, such as new grounds for asylum. The timeline for filing a motion to reopen is 90 days from the date of the decision.
A motion to reconsider, on the other hand, is based on the assertion that the original decision contained errors of fact, law, or procedure. This motion does not introduce new evidence but argues that the judge made mistakes in applying or interpreting the law. The aim is to have the court re-evaluate the case based on the existing record and correct any legal, factual, or procedural errors.
What is the Difference Between a Motion to Reconsider and an Appeal?
As explained earlier, a motion to reconsider involves requesting the same judge who rendered the original decision to review and correct specific errors of law or fact. It focuses on identifying mistakes in how the law was applied or interpreted or in how facts were considered or presented during the initial proceedings. Importantly, a motion to reconsider does not introduce new evidence but seeks to correct errors based on the existing record.
On the other hand, an appeal is a broader mechanism that involves seeking a review of the entire decision by a higher authority, typically the Board of Immigration Appeals (BIA). Unlike a motion to reconsider, an appeal can challenge a wide range of issues, including legal errors, factual determinations, procedural mistakes, and the overall fairness of the proceedings. This broader scope allows appeals to address multiple grounds for challenging the decision.
The primary distinction between these two processes is the decision-maker. A motion to reconsider is reviewed by the same judge who made the original decision, while an appeal is reviewed by the BIA.
Common Scenarios You Should Consider Filing a Motion to Reconsider
Filing a motion to reconsider in immigration court can be a strategic move when specific errors in the initial decision have potentially impacted the outcome of your case. Here are some common scenarios where filing a motion to reconsider may be appropriate:
Errors of Law
One of the most common reasons for filing a motion to reconsider is when the immigration judge has made an error in interpreting or applying the law. This can include misapplying legal standards, failing to consider relevant legal precedents, or incorrectly interpreting statutory provisions. For example, if the judge misinterpreted the legal requirements for asylum eligibility, a motion to reconsider could highlight this error and argue for a corrected decision.
Errors of Fact
Sometimes, factual mistakes in the judge’s decision can significantly affect the case outcome. These errors might include misunderstandings about the evidence presented, misrepresentations of the facts, or failure to consider critical pieces of evidence. If you can demonstrate that the judge overlooked or misunderstood key facts, a motion to reconsider can request a review and correction based on the accurate information.
Procedural Errors
Procedural errors occur when the immigration court fails to follow proper legal procedures, which can affect the fairness of the hearing. This might include not providing adequate notice of hearings, not allowing sufficient time to present evidence, or other procedural lapses that could have impacted the decision. A motion to reconsider can address these procedural mistakes and argue for re-evaluating the case under proper procedures.
Changes in Law
Occasionally, there may be changes or new interpretations in immigration law that could impact your case. If such changes occur after the judge’s decision but before the filing deadline for a motion to reconsider, you may argue that the decision should be reconsidered in light of the new law.
Misapplication of Discretion
Immigration judges have a degree of discretion in making their decisions, especially in cases involving relief from removal or discretionary benefits. If you believe the judge abused this discretion or made an arbitrary decision, you can file a motion to reconsider to argue that the judge’s use of discretion was improper. This scenario often involves detailed legal arguments demonstrating that the judge’s decision was unreasonable.
Clerical Errors
While less frequent, clerical or administrative errors in the court’s documentation or record-keeping can impact the decision. These might include mistakes in recording evidence, misfiling documents, or typographical errors in the written decision. A motion to reconsider can request a review and correction of these clerical mistakes, ensuring the decision accurately reflects the facts and evidence.
How Long Do You Have to File a Motion to Reconsider?
In immigration court, you typically have 30 days from the date of the final administrative decision to file a motion to reconsider. If you miss the deadline, the court will reject the motion.
Therefore, it is advisable to act promptly if you believe there are grounds for reconsidering the decision. Once you decide, consult an immigration attorney who can advise you on the best way forward.
How to File a Motion to Reconsider
The first step is to consult with an experienced immigration attorney who can assess your case and determine if filing a motion to reconsider is appropriate, given the circumstances. Once you have decided to proceed with the motion, the next step is to thoroughly review the immigration judge's final decision that you intend to challenge.
Identify specific law, fact, or procedure errors that justify reconsideration. These errors will form the foundation of your motion, so it is essential to document them clearly and comprehensively.
Drafting the motion to reconsider requires careful attention to detail. The document should clearly outline the following:
- The specific legal, factual, or procedural errors in the original decision
- Arguments supported by legal reasoning explaining why these errors warrant reconsideration
- References to relevant case law, statutory provisions, and any supporting evidence that strengthens your arguments
Ensure that your motion is well-organized and structured. This typically includes a proper caption identifying the parties and case number and a clear title indicating it is a "Motion to Reconsider.”
Gather and include any supporting documents that bolster your arguments. This may involve affidavits, evidence the judge failed to consider, or legal precedents that support your position. All supporting documents should be referenced and organized to strengthen the persuasiveness of your motion. After preparing the motion, file it with the immigration court. Ensure that you pay the filing fees.
Once filed, you must serve a copy of the motion on the opposing party (usually the Office of Chief Counsel or DHS attorney) and any other relevant parties as the court may direct. Follow the court's procedures for service, which may involve sending copies via certified mail or delivering them in person.
After filing and serving the motion, await for directions from the court. Typically, you will be informed of a date when you will be expected to attend court for the hearing of the motion.
During the hearing, you will have to present your motion and explain to the judge why you would like them to reconsider their decision. Then, the opposing party will be given a chance to respond. In most cases, they will present counterarguments and defend the court’s original decision.
The court will review your motion, consider the arguments presented, and determine whether to grant or deny the motion to reconsider. Stay in communication with the court to monitor the progress of your case and provide any additional information that may be requested.
Does Filing a Motion to Reconsider Cancel a Voluntary Departure Agreement?
Filing a motion to reconsider can cancel a voluntary departure agreement. When you agree to a voluntary departure, you typically do so to avoid the more severe consequences of a formal deportation order.
By filing a motion to reconsider, you ask the immigration court to review and potentially change its decision. If the motion to reconsider is successful and results in the immigration judge's decision being reversed or modified in a way that affects your immigration status, the grant of voluntary departure may no longer be necessary.
However, filing a motion to reconsider does not automatically stay a deportation order. A stay or removal of a deportation order is a separate legal request that must be specifically requested and granted by the immigration court or by the BIA. If you wish to prevent immediate deportation while a motion to reconsider is pending, you must file a separate motion for stay or removal with the BIA or immigration court.
A motion for stay or removal of a deportation order typically requires demonstrating compelling reasons why deportation should be temporarily halted pending the outcome of the reconsideration process. This could include highlighting humanitarian factors, such as family ties in the United States, medical conditions requiring ongoing treatment, or significant hardships resulting from immediate removal.
What Happens If the Motion is Granted?
If the motion is granted, the immigration judge may reverse the original decision entirely. This means the initial ruling being contested is overturned, and a new decision is issued in your favor. This could involve granting relief from removal, such as asylum, cancellation of removal, or adjustment of status, depending on the circumstances presented in the motion.
Also, the court might opt to modify aspects of the original decision rather than fully overturn it. This could entail correcting overlooked factual errors or revising legal interpretations that were misapplied in the initial ruling. In such cases, the modified decision aims to rectify the errors identified in the motion to reconsider.
Sometimes, the immigration judge may remand the case back to the immigration court. This occurs when additional evidence needs to be considered or if procedural steps must be completed before a final decision can be rendered. A remand allows for a more comprehensive review and ensures that all aspects of the case are adequately addressed.
What to Do If the Motion is Denied
Generally, you can file a motion to reconsider an immigration case once. If it is denied, you can appeal to the BIA. You have 30 days from the date of the decision to appeal. If the BIA denies the appeal, there is usually the option to further appeal the matter to the United States Court of Appeals for the Ninth Circuit, depending on the circumstances of the case.
However, filing a motion to reconsider is not always necessary before filing an appeal. Both forms of relief may be available simultaneously, and the choice between them depends on the specific circumstances and legal strategy of the case.
How an Immigration Attorney Can Help You
When filing a motion to reconsider, an immigration lawyer can guide you through the process and maximize the chances of a successful outcome.
An immigration attorney's expertise is essential in evaluating whether filing a motion to reconsider is appropriate in a given case. They can assess grounds for review, such as legal errors in the application of immigration law or factual misunderstandings in the evidence presented during the original proceedings. This evaluation requires a deep understanding of immigration law to effectively identify potential errors that may justify reconsideration.
An immigration lawyer can help you prepare and draft the motion to reconsider. They can gather the relevant evidence, legal arguments, and supporting documentation necessary to substantiate the claims made in the motion. This includes crafting a persuasive narrative that clearly articulates why the errors identified are significant and how they impacted the outcome of the case. An attorney will ensure that the motion meets all procedural requirements, including formatting guidelines, deadlines, and submission protocols mandated by the immigration court.
Moreover, an immigration attorney provides strategic advice on when to file a motion to reconsider and how to align it with other potential legal remedies available in immigration proceedings. For example, they may advise on whether it is more advantageous to file a motion to reconsider or pursue an appeal, depending on the specific circumstances of the case.
Furthermore, your attorney will represent you during the entire process. They will ensure the court protects your rights and interests. Your attorney will attend court on your behalf, present the motion, argue the legal points, and respond to any challenges or inquiries raised by the judge or opposing party.
If the motion to reconsider is denied, an immigration attorney can advise on the next steps available, such as filing an appeal or exploring alternative legal strategies. They can help you in the appeal process and ensure you receive the best possible outcome.
Find a California Immigration Lawyer Near Me
A motion to reconsider is a second chance at obtaining a just decision at the immigration court and securing your legal status in California. It offers hope and the possibility of a positive outcome that aligns with your goal of a stable and prosperous future.
At California Immigration Attorney, we recognize the profound impact immigration decisions have on individuals and families alike. Our team is not just about filing paperwork and attending court sessions. We are committed to standing by your side, offering expertise honed through years of dedication to California immigration law.
We believe in the power of second chances. Call us at 424-789-8809 for help filing a motion to reconsider.