Motions to Reopen or Reconsider Orders of Deportation, Exclusion or Removal, Issued by either Immigration Judges or the Board of Immigration Appeals At the outset we want to warn the public that filing motions to reopen is no easy task by any stretch of the imagination.  Filing motions to reopen is the hardest task to accomplish and the most complex area in the practice of immigration law. Consider below the many reasons why (and keep in mind that a motion to reopen is simply a request to re-litigate a deportation case that has been already litigated and decided).    First, there is a strong institutionalized tendency among the immigration judges and the BIA to resist reopening cases that have been completed in some instances, several years ago.  This resistance to reopening closed proceedings is understandable when viewed from the immigration judges' and the BIA's prospective. Why? because otherwise, a final order of deportation by an immigration judge will never become "final" if noncitizens are allowed to continue to file motions to reopen their cases, frustrating the finality of the decision making process in immigration courts.  The United States position in that regard cannot be said to be totally unreasonable. But what is wrong with that resistance is that adopting the 1996 blanket rules significantly limiting the availability of motions to reopen can be summarized by the old and familiar proverb that: "We do not throw out the baby with the bath water."  Doing so is neither fundamentally fear nor nearly as effective as it was intended.  Analyzed from the noncitizen's position, the problem with a blanket rule is that it prohibits all noncitizens from ever bringing untimely motions to reopen closed cases, even where the facts and circumstances overwhelmingly warrant that a favorable exercise of discretion be made.  The United States should return to the rules in existence before the 1996 amendments, where immigration judges and the BIA would review the question (of when a final order should be reopened) on a case by case basis, denying those motions that did not deserve a grant on the merits of the motion while maintaining the probability of reopening available for those cases that really merit it.   Second, when you file a motion to reopen now you must overcome a labyrinth of complex and numerous procedural "traps" (regulatory requirements) that have been intentionally designed to bring a rapid death to your motion to reopen, before it ever considered on its own merits.   One such example is the regulatory requirement that the motion to reopen be filed within the first 90 days from the date of the order of the immigration judge or the BIA.  This is a very harsh requirement because it forces you to act within those first 90 days or the judge (or BIA) will be unable to consider the motion because it is untimely filed. We mean that is harsh because if you only learned of the "need" to file the motion to reopen after the 90 days have passed, it now creates another hurdle that you will need to overcome to explain that you have acted diligently in securing your legal rights.  In other words you will need to convince the reader of your motion as to why you did not discover the need to file the motion to reopen at an earlier time.  And if your answer is not within the limited examples that have been allowed, your motion to reopen will be denied on procedural grounds only without ever considering the fairness grounds as to the reasons why the motion should be granted.  To illustrate this better in a hypothetical example, lets consider Sally, a minor child who enters the United States with her parents in 1996, when she is fully dependent on them for legal matters, which due to her age, Sally is incompetent to make legal decisions on her own. Lets now consider that she is an adult and wants to marry her boyfriend, a citizen of the United States.  After marrying him, her husband files a petition with the Service in order to obtain legal status on her behalf.  Sally and her husband appear before the Service for an interview on her eligibility to receive permanent residence, but she learns then that she had been ordered deported by an immigration judge in 1998.  She discovers that while she was in preschool, her parents (now divorced) had been placed in removal proceedings because their visas had expired.  At the end of the deportation proceedings, her parents were authorized to leave the United States voluntarily with an alternative order of deportation if they did not comply the voluntary order by a certain date. The parents then decided not to leave the United States as instructed and as a consequence she and her parents were ordered deported automatically after failing to depart.  Sally cannot now obtain her legal status from the Citizenship and Immigration Service because in such cases, Sally would be compelled to ask the immigration judge to reopen her deportation case for purposes of processing Sally's petition for permanent residence.  This hypothetical is actually real and repeats daily thousands of times throughout the immigration courts of the United States.   In theory, Sally would have a strong equitable claim that she was a minor at the time that the order of deportation became effective for purposes of convincing an immigration judge to reopen her case now. However, the 90 day limitation on the time for filing motions to reopen has long passed since 1998 and she now needs to explain, convincingly, that she is acting diligently at the time she is filing her motion to reopen.  The problem will usually resolve on the facts only.  Did Sally act promptly when she first learned that she had been deported?  Did Sally had a duty to investigate her legal status as soon as she became an adult?  Because if she did not act diligently her motion to reopen will be denied automatically on procedural grounds alone. This means that the person adjudicating the motion will never get to the point of considering the equities of having had no legal competence to act on her behalf during her underage years. Therefore, these limitations are barriers that work perfect for the immigration judges and the BIA in that they are not required to look at the fairness of Sally's reasons why she should be forgiven for her omissions when she was only a child, they are prevented from looking at those issues if Sally did not act with expedience after she emancipated as an adult.   Another example is the regulatory requirement that only one (1) motion to reopen be filed rendering any subsequent motions a nullity.  And only after you have succeeded in overcoming these very cumbersome regulatory limitations, is that your motion will stand a chance that it will be considered on its merits (meaning, only if you are able to get through the thick labyrinth, you will get a chance at getting the judge to consider the reasons you are filing the motion to reopen).  This is not a walk in the park for you to do it yourself, unless you are an expert in the subject of motions to reopen deportation orders, and specially where the regulations give you only one (1) single opportunity to prepare them right.  And suppose that you succeeded in overcoming these regulatory limitations on your motion to reopen, then in that event, you will have to convince either the immigration judge or the BIA that you deserve or warrant that your motion to reopen be granted: a serious gigantic undertaking not to be taken lightly.  We are not saying that you should not consider filing a motion to reopen where the law compels you to reopen your case.  Rather, we are saying that it is such a complex undertaking that you should not do so without expert professional help. Before the 1996 creation of these hurdles for reopening deportation proceedings, there were no such time or numerical limits.            But there is some good news for a change. Although there are "time" as well as "numerical" limitations governing when and if such motions to reopen or reconsider can be filed, in existence since 1996, there are also a number of exceptions that have been carved-out (since 1996) by the BIA and the federal courts in appropriate cases.  These exceptions sometimes can allow the noncitizen filing a motion to reopen or reconsider (be it before the immigration judge or the BIA) to avoid automatic denial of the motion based entirely on the fact that the motion violates the time and/or numerical limitations imposed by the laws on filing such motions.  Filing a motion to reopen or reconsider before the BIA or before the immigration judge is like walking on very thin ice and you must be extremely careful in preparing the motion so that it can stand a chance in it being considered valid and properly presented. The articles contained throughout this website regarding motions to reopen will address these problems in particularity.     But what is a motion to reopen? A motion to reopen is a written application that is submitted to an immigration judge (or to the BIA where applicable) wherein the noncitizen is requesting a specific order reopening the deportation proceedings that have already been terminated.  The application must contain factual and legal argument in support of the reasons why the motion to reopen should be granted, as well as the intended purpose behind the granting of the motion to reopen. For example—assume that a noncitizen wants to file a motion to reopen her removal proceedings to rescind an order of deportation that was entered by an immigration judge in her absence (also known as an order of deportation "in absentia") and assume further that she did not receive actual notice of the time and place of the hearing, her motion to reopen will have to contain factual information and legal argument showing convincingly that the notice to attend the hearing was not received—as well as— factual information and legal argument showing the specific application for benefits that she intends to apply for if the motion is granted. Consistent with this simplified explanation, if a noncitizen wishes to file a motion to reopen his or her deportation, exclusion or removal proceedings before an immigration judge (or before the BIA), the motion must comply with numerous and complex procedural and substantive rules, just so that the motion to reopen could have a fair chance at being considered by the immigration judge or the BIA, and if your motion gets that chance, it must also convince the immigration judge or the BIA member deciding the motion that the specific order that is being requested in the motion to reopen warrants that it be granted.   This is not an easy thing to accomplish by any stretch of the imagination. It will require you to prepare and present a motion that completely and fully explains that it was not the fault of the noncitizen in not receiving the actual notice of the time and place to attend the hearing, as well as, explains that the reopening will not be in vane, meaning, the noncitizen will qualify for receiving the grant of an application for an immigration benefit (such as permanent residence, cancellation of removal, a waiver grant, etcetera).    To expand on this simplified explanation of what is a motion above, think of it as if a motion can be divided into having two (2) separate components, each of which your motion must establish to the satisfaction of the immigration judge or the BIA that it warrants to be granted. The first component—overcoming numerous barriers The first component consists of overcoming the several procedural barriers created by the 1996 legislation (referred to as IIRAIRA, or IIRIRA) amending the immigration laws to make it significantly more difficult for noncitizens to reopen their cases.  The goal of Congress in the 1996 legislation was to bring finality to the removal proceedings and to make it easier for ICE to deport those noncitizens who had received a final order of deportation (or removal).  The first component then was and continues to be where the highest number of motions to reopen or reconsider are denied by the immigration judges and the BIA.   If a noncitizen's motion to reopen cannot establish it fully complies with the exigent demands of these rules that involve the very first procedural step or stage of the two-components, then immigration judges and the BIA will issue a denial of the motion to reopen or reconsider without the need to ever consider the second component.  The second component— the merits and the art of convincing why it should be reopened The second component involves convincing the immigration judge or the BIA to exercise favorable discretion and grant the motion.   A very small number of the thousands of motions that are filed by noncitizens in any one month manage to graduate from the first procedural series of hurdles to this second discretionary stage.   The fact that you may have successfully established your motion to reopen fulfills all of the procedural requirements of the first stage does not guarantee your success on establishing the second discretionary stage.  Otherwise there would be no need for fulfilling a second stage.   You still need to convince the immigration judge or the BIA that you deserve the grant of reopening.  And here also it should not be a surprise to you that there are a few exceptions to these rules.  One of them is where the underlying application for relief itself is mandatory (such as when the noncitizen seeks to reopen his deportation proceedings to apply for withholding of removal, a mandatory relief).      Time Limitations—Explained Since 1996, a noncitizen wishing to file a "motion to reconsider" must do so within the first 30 days after the original order was issued.  Likewise, a noncitizen wishing to file a "motion to reopen" must file the motion within the first 90 days after the original order was issued.  These rules were created for purposes of bringing "finality" to the decisions of immigration judges and of the BIA.  These rules were designed to close the gap, put an end, to the prior practice (before July 1, 1996) that noncitizens could file a motion to reconsider or reopen deportation proceedings several years after the case had been closed, i.e., after the case had reached a "final" decision.   This is the short version explanation about the rules pertaining to "time limitations" that apply to motions to reopen or reconsider decisions entered by immigration judges or the BIA after July 1, 1996. Numerical Limitations—Explained This rule is simpler (not simple).  It says that a noncitizen is allowed to file only one (1) motion and alike the prior "time limitation" applies only after the order has become "final".  In other words, assume for example that an immigration judge has entered an order of removal against a noncitizen on July 1, and the noncitizen has filed a timely appeal to the BIA by July 30 (appeals must be filed within 30 days), the noncitizen can file two (2) or more motions before the BIA while the appeal case is still pending before the BIA and without regard to the "one motion" or "numerical limitation"  on motions because the BIA has not yet rendered a "final" decision on the appeal case.  Remember that the "time and numerical limitations" only apply after the decision of the agency (immigration judge or BIA) has become "final". A Word on Finality of Removal, Deportation or Exclusion Proceedings The term "final" as it applies to removal, deportation or exclusion proceedings means the period that is after the expiration of the last day for filing an appeal from the decision of the immigration judge or the BIA.  For example, if a noncitizen receives an order from the BIA dismissing her appeal on July 1, that order of the BIA becomes "final" for purposes of filing a motion to reconsider after July 31, as this day is the last day of the 30 days within which, a motion to reconsider must be filed.  Likewise, if a noncitizen receives an order from the BIA dismissing his appeal on July 1, that order of the BIA becomes "final" for purposes of filing a motion to reopen on September 29, as this day is the last day of the 90 days within which, a motion to reopen must be filed.  Word of caution: there are variances of these rules when we are considering to file either a motion to reconsider or remand a decision entered by an immigration judge when the decision is on appeal before the BIA.  Yes, it is complicated when you start deviating from the simpler rules but such is with anything to do with "law" or "rules" because there almost always are "exceptions".     A word of "warning"—act diligently or lose your rights In short, the immigration laws of the United States and the immigration rules of the federal regulations that implement them require noncitizens (and their lawyers) not only to act promptly if they wish to file a motion or lose that right—but also require them to act competently— because only one motion is permitted after the deportation, removal or exclusion has become final.  As noted above, the federal courts have recognized exceptions to the applicability of these rules in certain cases such as for example when the noncitizen hires a lawyer to represent her in filing a timely motion and due to the laywer's fault, the motion is not filed in a timely manner.  In such cases, the federal courts have required the BIA to set aside the time and numerical limitations where the noncitizen (a) had no knowledge that the lawyer had not filed the motion in a timely manner (b) filed a new motion within a very short reasonable time after learning that the prior lawyer did not file the motion in a timely manner.  But, the federal courts have uniformly required a noncitizen to file a new motion to reopen expeditiously, that is very promptly (frequently within weeks) of learning that their prior lawyer did not file the motion on time.  Said differently, even though federal courts have recognized that a noncitizen was not at fault in not filing the motion to reopen within the prescribed 90-days time; and that the noncitizen was not at fault in learning months or years later that their lawyer had not filed the motion in a timely manner, the federal courts have denied the noncitizens the opportunity to reopen their cases when after having learned for the first time that the lawyer did not file the motion on time allowed inexplicable amount of time to lapse before filing a new motion.  In conclusion, if you learned on July 1 that the lawyer you retained did not file the motion to reopen back when it was timely, do not wait an unreasonable amount of time to claim your lost right before the BIA.  Act promptly.  How promptly depends on your own personal circumstances but as a general rule, within weeks from learning for the first time that your lawyer had not filed the motion in a timely manner. The term lawyer in these cases is meant to include nonlawyers as well.    Because of the Time and Numerical Limitations Special Attention Should be Given to the   Preparation of Motions to Reopen/Reconsider     Particular attention is placed on the preparation of a motion to reopen to increase the likelihood that it will be granted. The available statistics from the Executive Office for immigration Review (EOIR) show that a very high percentage of motions to reopen are denied both by the BIA and the immigration courts.  In 2008 alone, noncitizens filed more than 10,000 motions to reopen with both the BIA and the immigration courts.  However, at the moment there are no reliable statistics published that show the percentage of motions that were granted or denied.   It is believed that a reasonable estimate is that as many as 90% of them are denied each year.  One reason contributing to this high percentage of denials is because it is estimated that more than 60% of all motions to reopen are filed by noncitizens without the aid of a professional immigration attorney or authorized representative.  Another significant contributing factor is that the vast number of those motions to reopen that are denied, are so denied because they were procedurally deficient at the time when they were filed.  A motion to reopen that does not meet the procedural regulatory requirements will be denied by the BIA or by the immigration judge solely on procedural grounds, without ever considering the merits of the motion itself.