Asian Journal- The Filipino-American Community Newspaper

QUESTION: What can an alien do if the decision of the Immigration Judge (IJ) to remove an alien is based on mistake of actual facts or wrong application of the law?

Answer: A motion to reconsider the decision of the IJ should be filed together with a request to stay (stop) the execution of the removal order.

Answer: Examples of mistake of facts are:

When the USCIS or USICE determined that the marriage is a sham without looking at the totality of circumstances of the marriage.

When the removal order is based on a statement made by the alien that is contrary to facts because of language barrier and no translator is available or there is error in translation.

Answer: The motion should be filed to the IJ that has the last jurisdiction over the case.

Answer: A motion to reconsider should be filed within 30 days from the time the IJ issued an order to remove the alien from the United States.

Answer: Only one motion to reconsider may be filed with the IJ. If the motion to reconsider is denied, the alien will have to file a motion to reopen based on new evidence not available at the time of the hearing before the issuance of order of removal.

Answer: A Motion to reconsider seeks the reexamination of the decision of the IJ based on alleged errors in application of the law or error in the actual facts of the alien’s situation. There is no additional evidence required to file a Motion to reconsider because the motion is based on the records already on file. A Motion to reopen requires the introduction of new and additional evidence not available at the time of the original individual hearing. A Motion to reopen is also available when there are changed conditions, including change in law or in facts that may make the alien eligible for relief from removal. In this situation, the application for relief must accompany the motion to reopen.

Note: This is not a legal advice.