MOTIONS TO RECONSIDER, MOTIONS TO REOPEN, AND APPEALS
If you receive a negative decision from an immigration judge, the United States Citizenship and Immigration Service (USCIS) or the Board of Immigration Appeals (BIA), you may consider a motion to reconsider, a motion to reopen or an appeal, depending on the nature and status of your case. All of these actions have time limits to file them. In some situations, there are exceptions to the time limits.
A motion to reconsider is a request that the decision-maker (whether it be the immigration judge, the USCIS or the BIA) to re-evaluate its decision on account of an error of law or fact, and enter a new, different decision. It must be filed within 30 days of the decision to be reconsidered, with limited exceptions.
A motion to reopen is a formally filed request to an immigration judge or the BIA to reconsider a case that has already ended. The purpose of a motion to reopen is to present new or changed evidence that would have had a significant impact on the original determination if it had been available at that time. One motion to reopen is allowed and must be requested within 90 days of a final order and must be done while the person is still in the United States.
An exception to the 90-day filing deadline may apply in certain circumstances. For example, changed country conditions or the lack of notice of a hearing or decision may provide an exception. A different 180-day filing deadline applies, with yet additional limited exceptions, if one is facing an order of deportation in absentia (meaning the person was not present at the hearing). Exceptions to the above limits for filing deadlines also apply if the motion to reopen is filed jointly by the Department of Homeland Security and the person seeking to have their case reopened. If the case is successfully reopened, the person must then present to the appropriate tribunal evidence demonstrating why the outcome of their case should be different.
Most negative outcomes and decisions by the USCIS or from an immigration judge can be appealed. With some exceptions, a denial from the USCIS can be appealed to the Administrative Appeals Office (“AAO”) of the USCIS. Different parts of the AAO specialize in different types of cases. The AAO has appellate jurisdiction over approximately 50 different immigration case types handled by the USCIS field offices, as well as certain Immigration and Customs Enforcement (ICE) determinations.
A case before an immigration judge that results in an order of removal, exclusion or deportation can be appealed to the BIA. Alternatively, a positive result from the immigration judge can be appealed by Immigration and Customs Enforcement (“ICE”). An appeal to the BIA must be filed within 30 days of the decision of the immigration judge. If the appeal to the BIA results in a negative outcome, the case can then be appealed to the United States circuit court having jurisdiction where the original decision of the immigration judge was made. Such appeal must be filed within 30 days of the date of the decision being appealed.
If you have received a negative immigration decision, the attorneys at Rothfelder Stern can assist you in determining if you should file a motion to reopen, motion to reconsider, an appeal, or pursue other relief.