Everyone deserves a second chance. In a deportation case, your second chance is called Motion to Reopen (MTR). The purpose of the motion to reopen is to seek immigration court or Board of Immigration Appeals (BIA) review of your case after denial.
You may win a MTR if your attorney can show there is new material evidence that was not available and could not have been discovered or presented at the time of the hearing. Alternatively, you can show there are changed conditions, including a change in the law or facts that may make you eligible for relief from removal. The application for relief must accompany the motion.
Is there a deadline for filing an MTR? Usually either you or the government may file a motion to reopen within 90 days of the final administrative order. If you miss the 90-day deadline, relax. There may still be a chance to file the MTR. An applicant may move to reopen proceedings even beyond the 90-day deadline to apply or re-apply for asylum or withholding of removal based on changed circumstances arising in the country of his or her nationality. So for instance a complete political and social upheaval unexpectedly occurred in your homeland, you still may be allowed to apply for MTR if you have an asylum case.
One of the most common ways people seek MTR is when they miss their deportation or removal hearing. When you fail to show up before the immigration judge, she will deport you. She would simply make an order of removal "in absentia." The immigration police would then find you. There is no appeal of an "in absentia" removal order; it can be reviewed only through a motion to reopen.
What kind of reasons are accepted when you file MTR due to removal "in absentia.?" You can try to assert that you forgot to wake up in time for your removal hearing. Or you can say your dog ate your car keys. However, these reasons may not sway the judge. If the person did not receive proper notice of the removal proceedings, the motion to reopen may be filed at any time. Not receiving notice violates due process. The US Constitution guarantees you a right to be heard at the hearing. And if you did not get notice, then the case should be re-opened.
If you have an "exceptional circumstance" that caused you to miss the hearing then you must assert it. Motions to reopen to rescind an in absentia order due to exceptional circumstances must be filed within 180 days of the final administrative order. The BIA has found that heavy traffic, a foot injury, and a headache do not constitute exceptional circumstances. However, if the person attempted to contact the immigration court on the date of the hearing or provides an explanation for why he or she did not do so and provides supporting documentation regarding the circumstances (e.g., medical records), the person may be able to establish exceptional circumstances. The BIA has held that ineffective assistance of counsel may be an exceptional circumstance. Always consult an immigration attorney before filing this motion. It is complicated and it could be your "last bite of the apple."
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Lazaro Law Group, Professional Corporation represents immigrants all over the United States and US Embassy in Manila. The firm’s offices are located in San Francisco, Makati City (Philippines), and Fremont, Union City California. Telephone (415)278-9577. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Website: www.LazaroLaw.com.
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This article should not be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. This is not meant to create a lawyer-client relationship.
( Published May 20, 2010 in Asian Journal Northern California p. B4 )
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