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What Is A Motion To Reopen Vs. A Motion To Reconsider In Immigration Law?

A motion to reopen is when there are new facts that were not discovered at the hearing or at the time the decision was made. A motion to reconsider is when the person argues that the government didn’t apply the facts of the case correctly.

If the person discovered new facts afterwards then it’s possible to follow motions to reopen indicating that those new facts have an effect on the final decision. The government may decide to reopen the case to apply those new facts to the case and a different decision can be rendered. In a motion to reconsider, you are asking the government to fix an error or to do a correct analysis of the case.

What Are The Deadlines For Filing These Motions?

Normally, a person has 30 days to file a motion to reopen and also a motion to reconsider. The time limit is different for the motion to reopen for cases that are in immigration court. Sometimes they have 90 days to file a motion to reopen. If a person argues that they never received the Notice to Appear (NTA) in front of a judge then there is no time limit to apply for a motion to reopen. In Immigration court, it is a little bit tricky because it is not just a 30 day rule, but it depends a lot on the facts of the case. I have had cases in which we have been able to file a motion to reopen even 10 years after the final order of removal if the person never received a hearing to go in front of a judge.

How Do I File These Motions?

The way to file these motions depends on where the person is or where the case is pending. If the case is in front of USCIS, normally a person would file an application of a motion to reopen or to reconsider with form is I-290B. In that form, the person has to explain the basis for requesting that the case be reopened or reconsidered. If the case is in removal proceedings in front of an immigration judge then the motion is filed directly in front of the judge explaining the reason why a person is requesting the case to be reopened.

Where Do I File The Motions?

The motion is filed before the office that has jurisdiction over the case. For example, it is filed in immigration court before the immigration judge. If it’s in front of Immigration or USCIS, then you file with the office that has jurisdiction over the case or sometimes you have to file before the administrative appeals office that has jurisdiction over the case.

Do I Need To Submit A Brief With A Motion?

It is not necessary to submit a brief with a motion but it is recommended to have a better chance for the motion to reopen or to reconsider. To be successful, it is very important to explain the basis for requesting the case to be reopened or reconsidered. Although it’s not a legal requirement, it is recommended because that is how you are going to be able to explain that the case should be reopened or reconsidered.

What Happens When I Actually File A Motion?

What actually happens when you file a motion depends on what type of motion it is. If it’s a motion to reconsider, many times it’s going to go back to the officer that made the decision. If it’s a case that is in front of immigration court, it is going to go back to the immigration judge that rendered the decision. At that time, the adjudicator in the case is going to have an opportunity to review the legal arguments that are being made in the motion. If the adjudicator is satisfied with the arguments then they may reconsider the decision and then render a different decision. In the case of a motion to reopen, the adjudicator most likely is going to look to see if the facts did not exist at the time that the case was adjudicated. It must be something that happened thereafter or maybe that it was unknown for all the parties. After figuring out if the information was unavailable before, the adjudicator will also determine whether the new facts make a difference in the case. He will decide if the new facts change the decision in the case and whether to reopen it to analyze the different facts in light of the case at hand.

How Long Does It Take A Judge To Make A Decision On A Motion?

How long a judge takes to make a decision on a motion varies with regard to the caseload that the judge may have and normally can be anything between 15 days to six months. Some motions can be decided within 15 days. Some other motions can take months depending on how complicated the issue is and how busy the docket is for the judge.

May I Request A Waiver For The Filing Fee Of My Motion?

It is possible to request a waiver of the filing fee if the person can show that they are indigent or they cannot afford the filing fee required for the motion.

For more information on Motions To Reopen & Motions To Reconsider, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 306-6921 today.