Supreme Court Issues Ruling Affecting Motions to Reopen
June 26, 2008
The immigration service has made it very clear that they are increasing their efforts at removing undocumented immigrants from the United States. Entitled “Operation Return to Sender,” one of the immigration service’s main focuses is to locate and remove individuals with outstanding orders of removal that have never left the United States. With this heightened level of danger, individuals with outstanding removal orders must take immediate steps in order to have any possibility at preventing their removal from the United States.
As background, any individual that has been placed in removal proceedings before an Immigration Judge may only have their immigration matter reviewed by the Immigration Judge. The US Citizenship and Immigration Service (CIS) no longer has jurisdiction to review any applications to obtain legal residency, even if a person later marries a United States citizen. Therefore, if an individual has already either been ordered deported, removed or granted voluntary departure due to a deportation or removal case, and no appeal is currently pending, an individual must file a Motion to Reopen (MTR) the deportation or removal proceeding in order to ever acquire lawful residency in the US.
Motions to Reopen, however, are governed by strict filing deadlines. Should an individual fail to file the MTR within the required time period, it is extremely difficult to have a successful MTR. Generally, an individual is granted 90 days to file a MTR. For those with an order of removal that was entered in absentia (the individual did not appear for the court hearing), however, an individual generally has 180 days to file a MTR if the lack of appearance is due to exceptional circumstances or at any time if the person never received notification of the court hearing. These time periods are extended for only exceptionally unusual circumstances, such as the individual was ineffectively assisted by an attorney or more often, by an unlicensed paralegal.
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n addition to the timing issues, MTRs are made even more complex when an individual has been granted Voluntary Departure. Voluntary Departure allows an individual to depart the US on their own arrangements within a specified period of time, typically 30 to 60 days. This prevents a formal removal order from being entered against the individual, as well as a possible lengthy detention prior to the actual removal.
For those filing a MTR, however, there is a dilemma since MTRs generally take longer to process than the typical Voluntary Departure period of 30 to 60 days. If a person with a pending MTR departs the US, the MTR is deemed withdrawn. On the other hand, if the person does not depart within the Voluntary Departure period, they become ineligible for adjustment of status, suspension of deportation, change of status, registry, and voluntary departure for 10 years.
The Supreme Court issued a decision on June 16, 2008, entitled Dada v. Mukasey, seeking to resolve this dilemma. The court decision now allows individuals to withdraw the grant of Voluntary Departure before the Voluntary Departure period ends in order to preserve their eligibility for a MTR.
The ability to reopen a deportation or removal proceeding is crucial as it is the only way for an individual to legalize status and prevent their eventual removal from the US. Due to the technicalities and difficulties in achieving a Motion to Reopen, it is essential that an individual is represented by counsel that is intimately familiar with the various requirements.
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