MOTIONS & APPEALS
If you have been ordered removed and/or deported by an immigration judge, you may still have a chance to reverse the judge’s order and achieve the future you desire in the United States. The processes of Motions to Reopen and/or Reconsider and Immigration Appeals are complicated and should be handled carefully. The Tampa immigration lawyers at Neil F. Lewis, PA can analyze the facts of your case, determine your eligibility, and help you decide what your next steps should be.
“[E]very alien ordered removed has a right to file one motion” with the Immigration Judge or the Board of Immigration Appeals to “reopen his or her removal proceedings.” INA § 229a(c)(7)(A).
Our Immigration lawyers in Tampa, Florida have been helping immigrants with appeals since 1997
What is the difference between a Motion to Reopen and a Motion to Reconsider?
A Motion to Reopen generally seeks that the Immigration Court, or Board of Immigration Appeals (“BIA”) to reopen the case based upon new facts not available at the time the case was denied. Motions to Reopen must state new facts and be supported by documentary evidence demonstrating the immigrant’s eligibility. “New facts” mean facts that were not previously submitted in the proceedings that are relevant to the issues raised on the motion. Motions to Reopen must be filed within 90 days after the removal and/or deportation order is entered.
A Motion to Reconsider is a request to the same office that issued the unfavorable decision to review its decision based on incorrect application of law or policy. Motions to Reconsider must establish that the decision was incorrect based on the evidence of the record at the time of the decision, no new facts and/or evidence can be asserted. Motions to Reconsider must be supported by citations to appropriate statutes, regulations, or precedent decisions. 8 CFR 103.5(a)(3).
Immigrants have the right to file the appeal to the BIA, and the Motions to Reopen and to Reconsider at the same time.
What happens if the 90-day deadline to file a Motion to Reopen is missed?
Motions to Reopen must be filed within 90 days after the unfavorable decision is issued. However, there are some exceptions to this time limitation, some include:
- A removal order entered “in absentia”. An in absentia removal order is one that was entered against the immigrant for the sole reason that the immigrant failed to appear at their scheduled hearing. A Motion to Reopen based on this exception may be filed within 180 days if the immigrant can show there were “exceptional circumstances” for failing to appear at the scheduled hearing.
- There is no time limit on a Motion to Reopen if the government agrees with the filing of the motion and joins in as a party to the Motion to Reopen.
- There is no time limit on a Motion to Reopen if it is based on changed country conditions for applications for asylum or withholding or removal. The country conditions could not have been discovered or presented at the time the unfavorable decision was entered.
- And more!
Our Tampa immigration attorneys have successfully taken on dozens of cases by finding exceptions to the 90-day deadline. Contact us today to discuss your eligibility and whether these exceptions apply to you.
Do You Have A Question Or Need Help?
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What if you believe your previous attorney engaged in fraudulent or erroneous conduct?
Motions to Reopen can also be based on ineffective assistance of counsel claims. Regrettably, this occurs far too often where an attorney (or someone who held themselves out to be an attorney) did poor “work,” harming and prejudicing the immigrant’s case due to their ineffectiveness.
A successful Motion to Reopen based on ineffective assistance of counsel must show the following:
- The previous lawyer failed to perform with sufficient competence; AND
- The immigrant was prejudiced by the poor performance.
The Motion to Reopen must also show that the following procedural requirements underlined in the BIA decision on Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), have been met:
- Affidavit explaining the agreement the immigrant had with previous lawyer regarding the legal representation
- Evidence that previous lawyer has been informed of the ineffective assistance of counsel allegations and was given the opportunity to respond, AND
- Show that a complaint against previous lawyer was filed with proper disciplinary authorities, OR
- Explain why complaint was not filed
Our law firm has successfully represented many clients who come to us after having been previously represented by another attorney or a “notario”. Contact us if you feel your case was mishandled by your previous lawyer or by a “notario”, we may be able to help!
Please find more information on how to “Stop Notario Fraud”
Can I be physically removed/deported while my Motion to Reopen is pending?
Yes. Unfortunately, the filing of a Motion to Reopen does not change the underlying removal and/or deportation order. It is important to know that there is a possibility to be physically removed/deported while the Motion to Reopen is pending. There are a few exceptions available. For example, if the immigrant was ordered removed/deported in absentia (in his absence), the filing of the Motion to Reopen automatically stays the removal of the immigrant. 8 CFR § 1003.23(b)(4)(ii).
What are the possible outcomes/decisions on a Motion to Reopen?
If the Motion to Reopen is granted, the immigrant will be scheduled for a new hearing in front of the immigration judge and have a new opportunity to present new evidence. The judge will then make a new decision based on the new evidence provided.
If the Motion to Reopen is denied, the immigrant has the right to file an appeal to the Board of Immigration Appeals.
There is a limited time period to file an appeal, contact our immigration attorneys immediately to help you file the strongest appeal for your case.
What Is An Appeal?
An appeal is a request to a different (higher) authority to review an unfavorable decision. The Board of Immigration Appeals (“BIA”) is an administrative appellate body, and a part of the Executive Office of Immigration Review (EOIR). If an appeal to the BIA is filed, the BIA is in charge of reviewing decisions made by immigration courts by interpreting federal immigration laws. The BIA decides an appeal on a case-by-case basis and its decisions are binding on all immigration judges and immigration officers.
The appeal must be filed within 30 days of the final decision by the immigration judge. The BIA will make its decision based on the record and once the arguments are presented. Immigration Appeals can take between 8-24 months depending on the complexity of legal issues presented and reviewed. Typically, a decision from the BIA is final in the case. However, immigrants have the right to appeal this decision further to a Federal Circuit Court.
Need help reopening or appealing your case?
If you or a loved one has had their case denied by USCIS or an Immigration Court and have been ordered removed and/or deported, our Tampa immigration lawyers may be able to help you. Our attorneys have successfully reopened many cases to give our clients the best chance at achieving their immigration goals. We fight aggressively to keep families together. Call us now for a consultation at 813-226-2144 or send us a message to have one of our immigration appeal attorneys review your case.