Reopening a Removal Order
September 30, 2009
The Department of Homeland Security (DHS) has made it very clear that it considers the apprehension and removal of undocumented immigrants from the United States as a top agency priority. The DHS has not only increased the number of removal proceedings initiated against undocumented individuals, but it has prioritized efforts to remove individuals with outstanding deportation or removal orders that have never left the United States.
With this heightened level of danger, individuals with outstanding deportation or 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, and no appeal is currently pending, an individual must file a Motion to Reopen the deportation or removal proceedings in order to acquire lawful residency to the United States.
Motions to Reopen, however, are governed by strict filing deadlines. Should an individual fail to file the Motion to Reopen within the required time period, it is extremely difficult to have a successful Motion to Reopen. Generally, an individual is granted 90 days to file a Motion to Reopen. If an order of removal was entered in absentia (the individual did not appear for the court hearing), an individual generally has 180 days to file a Motion 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 if the individual was ineffectively assisted by an attorney or, more commonly, an unlicensed paralegal.
For individuals who do not qualify for a Motion to Reopen, individuals may seek the cooperation of the DHS in submitting a Joint Motion to Reopen. A Joint Motion to Reopen is much more likely to be granted by a judge as it shows that both the DHS and the immigrant are willing to forego the time restrictions.
In determining whether the DHS will agree to the reopening of a removal case through a Joint Motion to Reopen, the DHS will look at certain discretionary factors. Examples of such factors are as follows: (1) the hardship to the immigrant and/or his United States citizen or lawful permanent resident family members if the immigrant were required to procure a visa in the individual’s foreign country; (2) the immigrant’s criminal history, if any; (3) the number and severity of the immigration violations; (4) whether the immigrant has cooperated with, or his presence in the United States is desired for, a criminal or civil investigation or prosecution conducted by any law enforcement agency; and (5) whether the immigrant’s removal is consistent with DHS objectives.
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 complex requirements to effectively advocate on behalf of the immigrant.
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