If you believe that the conclusion of your immigration case was unfair, or if you come across new evidence that could substantially influence the final ruling, you can file a motion to reopen your case with the immigration court. You must do this within ninety days of the final ruling. You improve your chances of success when you involve an experienced immigration attorney in the process. Your attorney will explain the legal processes involved and your options, help you build solid evidence, and handle all the paperwork on your behalf. You can file one petition for the court to reopen your case and reconsider its decision, or you can file two separate motions.
A Motion to Reopen and Reconsider an Immigration Case
If you live in California as an immigrant, it helps to understand state laws and other requirements of the Immigration Department so that you can continue living and working peacefully. Violating the law can affect your immigration status, causing you to be removed from the United States or be marked as inadmissible. Immigration cases have been challenging to handle, even for immigrants in the state, for years. It is difficult to predict the outcome of a case, even if it is a minor issue with the immigration department. Hence, there is a need to seek legal counsel and guidance to make the right decisions and understand your rights.
An immigration attorney can help in many ways, depending on your legal issues. If you have an ongoing case in an immigration court, they can defend your rights, represent you in all hearings, and advise you on the dos and don’ts that could compromise your situation further. An immigration attorney can help even after the final verdict. For example, they can help you petition the immigration court to reopen and reconsider its decision on your case if you are unsatisfied with the results. However, this only works under specific circumstances, like when you find new evidence that could change the case’s outcome.
Through a motion to open your closed case, the court allows you (after losing your immigration case) to present changed facts or new evidence to an immigration court. You must state your petition's new evidence or facts and prepare to prove them in a trial if the court grants your petition. You must also prepare evidentiary material, like affidavits, to support the new facts or evidence.
Motions to Reopen a Case VS Motions to Reconsider Verdicts
A petition to reopen an immigration case after its conclusion is allowed on particular grounds in California. You can only file such a petition if you have new facts regarding the case or if the case’s circumstances have changed since the trial. The cause for reopening the case must be clear to the immigration court so the judge can grant your petition. Once the case is reopened, you will be allowed to present the new evidence or demonstrate changed facts for the judge to make another verdict based on the changed circumstances.
A motion for the court to reconsider your case’s verdict is allowed if you feel the court made a mistake in procedure or law, like denying your constitutional rights. You must specify the instances in which the court was unfair during the trial or sentencing and your need for the judge to reconsider their judgment. If the judge grants your petition, the immigration court will revisit how your case was handled.
Example: While living and working in California, Clarita commits a crime that affects her immigration status. She is set to be deported right after serving her sentence. However, she contests her removal, which is unsuccessful. While waiting for her deportation, the safety conditions in Clarita’s country worsened. There is no doubt that she could be in danger if deported back to her country.
Note that the circumstances in Clarta’s deportation case change right after the final ruling. This sets a suitable ground for filing a motion to open her closed case. The court will review the new conditions to make a favorable judgment if it grants her petition.
Remember that the grounds for bringing a motion to open or reconsider your case must be suitable. Here are some typical grounds that could compel the judge to grant your petition:
- When you wish to suspend your deportation,
- When you want to apply for asylum or withhold your removal.
- If you wish to benefit from relief under U.N. CAT protection (Convection Against Torture),
- When you want to adjust your immigration status,
- If you wish to benefit from NACARA 203 relief,
- If your council was not helpful.
The decision to reopen or reconsider your case is usually the judge’s to make. Thus, there is typically no guarantee that the court will grant your petition. Therefore, ensure you have suitable grounds for filing the motion, like changed facts or new evidence, to improve your chances of success. For example, if you were unable or allowed to present some facts about your case, the court could grant your motion based on that.
When To File The Motion
Typically, you must bring a motion to open or reconsider your immigration within ninety days of the final order of your deportation. However, the law allows some exceptions to this requirement, including the following:
- If the final order of deportation was made in your absence, in which case, you are allowed to bring the motion 180 days after the ruling. The exception could apply if you were in federal or state custody and could not appear at your case’s hearings.
- If the government files a joint petition to reopen or reconsider your case, in which case there is no deadline,
- If you are seeking asylum status or applying to withhold your removal based on changed conditions in your country, these conditions were only discovered after the final ruling. In this case, there is no deadline.
- There is no deadline for battered parents, children, or spouses to file this motion, especially if the primary basis for your motion is exceptional hardship or extreme cruelty. However, this exception applies to U.S. citizens or green card holders. The motion must also be filed with an application to cancel your removal.
Reasons the Government Could Decide to Reopen Your Case
In some cases, DHS and ICE can jointly agree to file a petition to reopen or reconsider your case. When that happens, the time limit of 90 days, within which you must file the case, will not apply. The government can decide on this based on various factors, including convincing evidence about health issues or other unique circumstances. If the government learns about exceptional circumstances in your case, and there is no doubt that the court will grant your petition, it could file it on your behalf.
Additionally, the government can make this move to save time and resources if there is evidence that you will not give up. If you are likely to pursue the matter until you obtain a favorable ruling, it could be easier for the government to help you than to spend energy, time, and resources fighting it.
The In Absentia Deportation Order
Remember that you can bring a motion to open your case to challenge your deportation if the final ruling was made in your absence. The court will accept your motion if you demonstrate that your failure to attend the hearing was beyond your control. However, the law makes notable exceptions for this requirement, including the following:
- If you, your spouse, parent, or child are a victim of extreme cruelty or battery.
- You are seriously ill.
- Your parent, spouse, or child is seriously ill or has lost their life.
If you meet the requirements, you can file a petition to reopen your case within 180 days of the final removal order.
Equitable Tolling
You can toll or pause your requirement to file a motion to open your immigration case within 90 or 180 days, which is exceptional. Tolling can happen anytime within the 90-day or 180-day period and is allowed if you cannot file the motion because of errors, fraud, or deception. Equitable tolling happens when you suspend the time you must bring the motion to court. The court will equitably toll the time if you demonstrate that you were diligent in discovering the error, deception, or fraud.
If the court discovers that you were aware or should have reasonably known about the error, deception, or fraud and did not act on it, the application to toll the time will not be granted, and the time will continue running as it should.
If you need more time to prepare your case after discovering an error, deception, or fraud, a skilled immigration attorney can help. They will advise you on your best options and help you file for equitable tolling to ensure you have sufficient time to prepare your motion before filing.
You can use this doctrine if your lawyer engages in erroneous or fraudulent conduct that causes you to lose the case. However, you must demonstrate the following to prevail in your ineffective counsel claim:
- Your lawyer was incompetent in your defense or legal advice.
- Your lawyer’s poor performance prejudiced you.
Remember that you will not win this claim unless you demonstrate that you acted with due diligence in finding out about your lawyer’s error, fraud, or deception. You must also demonstrate that you abided by all the Lozada procedural requirements. If the court grants your motion and you meet with a new immigration attorney to discuss your case, the tolled time will begin running.
The Lozada Requirements
Remember that a petition to reopen your immigration case based on the ineffective service of your attorney must meet specific procedural requirements under Lozada. These requirements are as follows:
- You must file an affidavit detailing your agreement with the ineffective attorney about your legal representation.
- You must show evidence that you informed the ineffective counsel about the complaints and allowed them a chance to respond.
- You must demonstrate that you filed an allegation against the ineffective counsel with the right disciplinary authority or explain why you did not file such an allegation.
Evidence Needed to Support Your Motion
If you want your case to be reopened based on changed circumstances or new evidence, this is all the immigration needs to determine the case. You should mention the new evidence or changed circumstances that prompted your need to reopen the case and support the evidence with reports of changed conditions or affidavits during the hearing. For example, if the security in your home country is unstable, and you are afraid for your safety if deported, you must provide reports to support that during the hearing.
You must also demonstrate that the evidence or changed circumstances were unavailable in the previous hearings, so you could not have presented or discovered them then. If applicable, attach a complete application for asylum or relief to the motion.
What Follows the Motion Application
The judge will consider the evidence and circumstances of your application to determine whether or not to grant your motion. It could take some time before the court grants your requests. This is because it must gather evidence and prepare well for the case. Since the motion application does not affect the underlying verdict, you could be deported before the judge grants or denies your motion.
However, the motion to reopen the case will automatically stay the deportation order if the deportation order was given in your absence. Again, the motion to reopen an immigration case is not automatically terminated when you are deported. The court can also stop your deportation if you are filing for the reopening of your case on humanitarian grounds (for example, if your child or spouse is a victim of battery or cruelty).
A skilled immigration attorney will help you understand your options and the exceptions you are eligible for to ensure a favorable outcome. They will explore every possible avenue and utilize the available resources to ensure your motion succeeds.
If you agree to leave the country voluntarily, you must do so before your voluntary departure date expires. If you file a petition to reopen your case and continue to stay after your voluntary departure date expires, the court will deny your motion. By failing to leave when you promised, you give up your right to open your closed immigration case.
If the grounds for reopening your case are valid, the judge will grant the motion. They will set a new hearing date on which you must present the changed circumstances or new evidence to support the motion. The judge will review any other evidence presented in the hearing and consider all arguments to give the final verdict. The ruling will favor you if the change in circumstances or new evidence is compelling. This means the judge will overturn the previous verdict and give a fresh ruling in your case.
However, most cases do not end up with a favorable ruling for the immigrant. The judge can deny your motion if the changed circumstances or new evidence are invalid grounds for reopening your case. You can only bring one petition to an immigration court to reopen your case. There are exceptions, though, in removal orders made in your absence. If your case is an in-absentia deportation, you will be given another chance to appeal the matter. If not, you can appeal to the Immigration Appeals Board, which is the case with most underlying issues.
If the board denies your motion, an aggressive immigration attorney can pursue the matter with the U.S. Court of Appeals. This allows you and your attorney to polish up your case and make it even more compelling to ensure a favorable outcome.
Note: You have a strict time limit to appeal an immigration case. A skilled immigration attorney will learn about the time limits and prepare everything within the given time to improve your chances of success. Suppose your initial appeal to reopen your immigration case was denied or your case was lost in the system. In that case, you must contact a competent immigration attorney immediately before you lose your right to appeal.
Having an attorney makes the entire process smooth. Immigration court processes are complex and could be challenging to navigate alone. An experienced immigration attorney who understands how the processes work can guide and assist you along the way. They will also advise you on your rights, explain your options, and help you pursue the most favorable process for the best possible outcome.
Find an Experienced Immigration Attorney Near Me
Have you or your loved one recently lost an immigration case in California and are likely to be deported?
You can file to reopen or reconsider your case if you have fresh evidence or circumstances have changed in your favor. The immigration judge will review the changed circumstances or new evidence to rule on the matter again.
However, the process involved is complex and could be challenging to navigate alone. Our competent immigration attorneys at California Immigration Attorney have the skills and experience to navigate the legal processes and build a solid case that could give you a more favorable outcome. We will review your case and any changed circumstances or new evidence to advise you on the proper legal process to follow. Call us at 424-789-8809 to discuss our services and your case further.