When the immigration court or USCIS makes a decision regarding your immigration case, it isn’t the final word. You may be able to file a motion or appeal. Working with an immigration attorney gives you the resources you need to fight an unfair decision.
Here at the Florida Immigration Law Counsel, we have extensive experience handling immigration motions. We can advise you on your situation and help you take the steps towards a better outcome.
What is an Immigration Motion?
When the immigration court makes a decision, you have the right to fight the outcome. You could reopen the case or ask them to reconsider their decision. Either way, the court could decide to change the outcome. They might reverse a decision to deport you, or change their mind about granting you a green card. With a motion, you can get a second chance.
There are two basic types of motion. A motion to reopen a case is applicable for situations involving new facts. If you discovered new facts or evidence after the original hearing, you may be able to reopen the case and present your new evidence.
In other cases, a motion to reconsider is more relevant. You can file this motion when the original decision does not apply the law correctly, or when it violates constitutional rights.
You can file both motions at the same time. However, it’s best to consult with an attorney. They can explain more about how an immigration motion works.
When Should You File?
You shouldn’t hesitate to file your motion. If you wait too long, you could lose your chance. Immigration law requires you to file within 30 days of the final order for your removal, exclusion, or deportation. If the decision came through the mail, you have 33 days to file.
There are a few exceptions. When the government issues an order “in absentia”, the individual may be able to apply after the deadline. They might excuse a missed deadline if the delay was beyond the applicant’s control.
Common Reasons for Motions
There are many reasons you could choose to file a motion. Here are a few of the most common reasons for motions to reopen:
- Adjustment of status
There is no guarantee that the court will hear your case again or re-evaluate the decision. If there is no evidence supporting the motion, the court will deny it. For instance, someone who files a motion to reopen needs to show affidavits or reports. They must explain why the evidence was not available at the time of the hearing.
How to File
For a successful motion, you need to go through the necessary steps. First, you need to make sure you are eligible. Then, you must file a Form I-290B. The form is also known as a Notice of Appeal or Motion. On the form, you need to choose which type of motion you are filing.
In your paperwork, you need to include the filing fee. If you are filing two motions, you don’t need to pay more to file. You can pay with a credit card or check.
The USCIS might opt to waive your fee if you can’t pay it. However, you need to include your request for a fee waiver with your application. They offer waives to those who have an income at or lower than the poverty guidelines, a means-tested benefit, or a financial hardship that keeps you from paying the fee.
You cannot mail your motion directly to the Administrative Appeals Unit. Rather, you need to send it to the address given by the USCIS website. If you mail your motion to the wrong place, you will receive it back.
Common Questions Regarding Motions
Often, immigrants have many questions about the motion process. Here’s a look at some of the most frequent questions:
1. Can You Be Deported While a Motion is Pending?
In some cases, an immigrant files a motion to prevent removal from the country. But this might not stop the process. You could still be deported.
That said, this isn’t always the case. If your removal order occurred “in absentia,” a motion to reopen automatically stops the order. The similar is true of those who want to stay in the country for humanitarian reasons. For instance, the immigration court could stay orders for a battered spouse.
Even if you are deported, your motion doesn’t terminate after you leave the country. If things go well, you may be able to return to the U.S.
2. Can You Stay in the Country Past Your Departure Date if You File a Motion?
After a voluntary departure period expires, you cannot be in the country. If you remain, you will be unable to file a motion. Refusing to leave the country after the departure period immediately disqualifies you from a chance at a new decision.
3. How Does the Appeals Process Work?
There’s no guarantee your motion will be a success. If it fails, you may have a chance at another day in court.
Typically, an individual can only file one motion to reopen a case. But, there are some exceptions. For instance, the court tends to allow those with “in absentia” removal to appeal or refile a motion.
If your original motion was denied, you could appeal the decision with the Board of Immigration Appeals. They can choose to either deny or accept the appeal. If they deny it, you might have another option. The U.S. Court of Appeals for the Ninth Circuit could receive your appeal and grant it.
In any case, you need to make your appeal within a certain timeframe. Waiting too long means you can no longer appeal the decision. Therefore, you should work with an attorney to get results quickly.
4. Do You Need an Attorney?
Because there is so much at stake, some individuals choose to work with an attorney. While this isn’t mandatory, it is highly recommended. One small mistake could make your motion a failure.
If you’re interested in filing a motion, contact us at the Florida Immigration Law Counsel. Find out how we can help you.