Motions
& Appeals
Still a Chance to Reverse Your Removal Order
If you have been ordered removed and/or deported by an immigration judge, you may still have a chance to reverse the judge’s order and achieve the future you desire in the United States. The processes of Motions to Reopen and/or Reconsider and Immigration Appeals are complicated and should be handled carefully.
The Tampa immigration lawyers at Neil F. Lewis, PA can analyze the facts of your case, determine your eligibility, and help you decide what your next steps should be. Every alien ordered removed has a right to file one motion with the Immigration Judge or the Board of Immigration Appeals to reopen his or her removal proceedings.
OUR IMMIGRATION LAWYERS HAVE BEEN HELPING IMMIGRANTS WITH APPEALS SINCE 1997
Motions to Reopen vs. Motions to Reconsider
Motion to Reopen
Seeks to reopen the case based upon new facts not available at the time the case was denied. Must state new facts and be supported by documentary evidence. Must be filed within 90 days after the removal order is entered.
Motion to Reconsider
A request to review the decision based on incorrect application of law or policy. No new facts may be asserted. Must be supported by citations to appropriate statutes, regulations, or precedent decisions. 8 CFR 103.5(a)(3).
What if the 90-Day Deadline Is Missed?
Motions to Reopen must generally be filed within 90 days after the unfavorable decision is issued. However, there are important exceptions to this time limitation:
Motion to Reopen
Seeks to reopen the case based upon new facts not available at the time the case was denied. Must state new facts and be supported by documentary evidence. Must be filed within 90 days after the removal order is entered.
Government Joins the Motion
There is no time limit on a Motion to Reopen if the government agrees with the filing of the motion and joins in as a party.
Changed Country Conditions
There is no time limit if the motion is based on changed country conditions for asylum or withholding of removal, where conditions could not have been discovered at the time of the original decision.
Ineffective Assistance of Counsel & Matter of Lozada
Motions to Reopen can be based on ineffective assistance of counsel claims. This occurs when an attorney (or someone who held themselves out to be an attorney) did poor work, harming and prejudicing the immigrant’s case. A successful motion must show: (1) the previous lawyer failed to perform with sufficient competence, AND (2) the immigrant was prejudiced by the poor performance.
The Motion to Reopen must also satisfy the procedural requirements from the BIA decision on Matter of Lozada, 19 I&N Dec. 637 (BIA 1988):
Affidavit
An affidavit explaining the agreement the immigrant had with the previous lawyer regarding the legal representation.
Notice to Prior Counsel
Evidence that the previous lawyer was informed of the ineffective assistance of counsel allegations and was given the opportunity to respond.
Bar Complaint
Either show that a complaint against the previous lawyer was filed with proper disciplinary authorities, or explain why a complaint was not filed.
Possible Outcomes on a Motion to Reopen
If the Motion to Reopen Is Granted
The immigrant will be scheduled for a new hearing in front of the immigration judge and have a new opportunity to present new evidence. The judge will then make a new decision based on the new evidence provided.
If the Motion to Reopen Is Denied
The immigrant has the right to file an appeal to the Board of Immigration Appeals. There is a limited time period to file an appeal — contact our immigration attorneys immediately to help you file the strongest appeal for your case.
What Is an Appeal?
An appeal is a request to a different (higher) authority to review an unfavorable decision. The Board of Immigration Appeals (BIA) is an administrative appellate body and part of the Executive Office of Immigration Review (EOIR). The appeal must be filed within 30 days of the final decision. Immigration Appeals can take between 8–24 months depending on complexity. Immigrants also have the right to appeal a BIA decision further to a Federal Circuit Court.
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