In the legal world, a motion is defined as a formal request that is made to a judge to issue an order or judgment. Motions are frequently made for a wide array of purposes. Examples are postponing trials, asking for child support, or asking that a case be dismissed.
There is a formal process for filing a motion. This typically consists of a written petition, a written brief of legal reasons why the motion should be granted, written notice to the attorney(s) for the opposite party, and a hearing in front of a judge. The exception is that oral motions might be permitted during a trial or hearing.
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During an immigration case, there could be several circumstances that require a motion to be filed. These include,
In the event a motion to the United States Citizenship & Immigration Services (USCIS) is denied, there are other steps that can be taken. Keep reading to learn about your options and the organizations you may interact with.
In order to file a motion to reopen, new facts and evidence that were not previously included must be presented. If an order of removal has been issued, a motion to reopen can be filed. The motion has a limited window to be filed, and only one motion to reopen can be filed at a time. A motion to reopen permits the immigration judge (IJ) or Board of Immigration Appeals (BIA) to review previously undisclosed evidence. Circumstances that might prompt a motion to reopen are inadequate counsel, changing circumstances that make one eligible for immigration relief, a new case that could affect removability, or a violation in proceedings that impacts the outcome of the case. Usually, a motion to reopen is handled by the BIA or IJ and must be received by either party within 90 days of the final removal order.
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A motion to be reconsidered also has to contain certain information. To file this petition, it must be supported by case law demonstrating the previous decision was based on an erroneous application of USCIS policy or immigration law. While a motion to reopen presents new facts, a motion to reopen requests the BIA or IJ to take a second look at a case. It must be established that the decision was flawed based on misapplied facts or law. The claim must be accompanied by legal precedent, adopted decisions, regulatory provisions, or a policy statement from the DHS or USCIS.
To reopen a motion, it must contain new facts and be supported by documented evidence. Non-citizens are not permitted to forward evidence that has already been submitted or facts that have previously been presented. Other requirements are a form I-290B, filing the motion within 30 days of the decision to be overturned, sending the motion to the address specified by the USCIS, and paying the filing fee.
If a motion to reopen a case is denied, the decision can be appealed to the USCIS Administrative Appeals Office (AAO) as long as the original decision can be appealed to the AAO. If an asylum office denies a motion related to a case that has received a final denial, it is possible to submit a new Form I-589.
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The amount of time a judge takes to reopen a case is determined by their present caseload. The average span is 15 days to six months based on the court docket and complications of the case. Some motions to reopen can be decided in fifteen days or less.
If a motion to reopen a case is granted, it means an unfavorable decision will be reconsidered based on new facts. The petition must state this updated information to demonstrate eligibility for reevaluation of eligibility. These new facts must be relevant to the motion to reopen. A tactic frequently used by the BIA is to deny stay motions which prevent a person from pursuing adjudication prior to being deported. This includes a review of motions to reopen decisions. If this occurs, an attorney can file a motion to reconsider the stay denial, thus granting time for a reopened case to be considered.
The short answer is yes. It is, however, a tricky process. If a motion to reopen is sent, this alone does not overturn the decision being appealed. If a non-resident files a motion to avoid deportation, that person can still be deported while that motion is pending. A motion to reopen a case is decided solely on the basis of written evidence unless oral arguments are requested.
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If the USCIS elects to reopen a case, a notice will be sent from the immigration court handling the case. This notice will contain the time and place of a person’s next hearing in the proceedings. This will provide an opportunity to once more present an argument to an IJ.
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Immigration law is very complicated and can be rather stressful. For those seeking to remain in the United States, there are a lot of steps to follow, but it is possible to maintain residency in this country. Know what options are available as knowledge truly is power under these circumstances. In the event you feel you cannot navigate the system on your own, there is experienced help available to assist in your immigration journey.