If the Immigration Court has decided to deport you and you believe it was incorrect, you still have options. Even a filing order of removal can be challenged under certain circumstances. When a negative ruling occurs, you may be able to file for a motion to reopen. A motion to reopen asks the court to reexamine the case. To successfully do this, there has to be new evidence that was discovered after the conclusion of the case. In a reopened case, the new evidence will be heard by the exact same judge, who will then render an updated verdict. In the case of immigration, the verdict may mean the difference between staying in the country and being deported.

Motion to Reopen vs. Motion to Reconsider

Your legal counsel may use the term motion to reconsider when talking about your case. A motion to reconsider, while similar to a motion to reopen, is different. Both courses of action are sent to the same judge from the case. However, each uses a different action to achieve their end goals. While a motion to reopen is based on new facts, a motion to reconsider is based on new legal grounds. In a motion to reconsider, the representative of the plaintiff must argue that there was an error in legal judgment. The immigrant's counsel must then provide legal arguments (typically based upon prior precedent for which the case is similar) which would support the claim. Once the new argument has been heard, the judge will then decide if the case will be reconsidered.

Motion to Reopen vs. Appeal

A motion to reopen a case is not an appeal. Whereas a motion to reopen re-examines a case previously ruled upon, an appeal continues the analysis of a case despite the case being concluded at the trial level. A motion is made to appeal a case by taking it to a higher authority than the presiding judge. This higher authority, such as the Board of Immigration Appeals, will then determine for the evidence is warranted. Unlike an appeal, the motion to reopen is heard by the same judge. Furthermore, the motion can only be heard if new evidence is brought to light. An appeal will examine the same situation and determine if the ruling is valid or if it should be overturned.

How to File a Motion to Reopen

To successfully move to reopen a case, you must file within 90 days of the original verdict. Filing the motion afterwards will not be allowed unless you are one of the following:

  • Homeland Security files to reopen your case. On very rare occasions, the Department of Homeland Security will agree to or join in a motion to reopen. Your attorney may seek department consent or agreement to reopen depending on the nature and facts of your case. Due to the nature of the department filing, there is no time limit for when to reopen.
  • You were unable to attend your immigration hearing due to exceptional circumstances. Reopening a case requires you to be at your original hearing. If you were not at your hearing, you are automatically deported unless there were extraordinary circumstances preventing you from being there. In the event this happens, you can reopen the case within 180 days of the original verdict.
  • Your lawyer was incompetent. If you are able to prove or have discovered that the attorney defending you was incompetent, you can move to reopen. However, merely losing a case does not necessarily constitute incompetent representation. There are guidelines as to what counts as incompetence under the Board of Immigration Appeals. The deadline to motion for reopening based on this can change depending on who you are filing with.
  • You were not notified of an order to appear in court. When this occurs, a deportation order is revoked, allowing the person to stay until a new trial can be scheduled. If you are not notified of an order to appear in court, you are allowed to reopen the case within an indefinite amount of time.

If you believe your case should be reopened, contact the attorneys at Salmon-Haas. Our team has many years of experience as immigration attorneys in San Antonio. We are able to bring our knowledge to you and help work towards getting you the results you deserve. Contact our firm today and get started on your new life.

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