Immigration Cases: Denial and Motion to Reopen

Every applicant in the Immigration process dreads the word “denied”, especially in regards to their cases. Cases can be denied due to various reasons, for example in-adequate or false information, ineligibility etc. If your case is denied, USCIS will send you or your attorney a notice explaining the grounds on which the denial was made. Read carefully through this explanation and find out whether your can appeal this decision. This information should be included in the notice as well.

If your case is denied for some reason, you have three options –
1.     File A Motion To re-open or Reconsider The Decision
2.     File An Administrative Appeal
3.     Re-file the Case 

Filing a Motion to Reopen

Filing a motion to re-open basically means you are requesting the Board of Immigration Appeals to reexamine or reconsider its unfavorable decision.

More often then not, applicants are advised to either Appeal or Re-file if possible rather than file a motion to re-open as it has a low success rate. However, appealing has its own drawback; especially the time taken for an appeal to be adjudicated is long and can take up to a year.

Re-filing is often the more viable option but it does cost more and there is the issue of filing dates and finding separate visa category to file under etc.

The biggest advantage with a motion to re-open is probably the short time period for review – a maximum of 60 days. For a motion to succeed it first needs to be filed promptly, along with the correct filing fee which is around $110.

Filing procedures

The USCIS does not have a pre-formatted form for filing a motion to re-open or reconsider a denial. That leaves the filing party to draft its own motion.

As per Federal Regulation 8 C.F.R. § 1003.2, a motion to reopen must “establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision. The time limits for filing a motion to re-open may vary in cases involving deportation and asylum.

If the Motion is being filed by an attorney or representative then Form EOIR–27, Notice of Entry of Appearance as Attorney or Representative Before the Board, must be filed with the motion. The motion will need to be filed with the Office of the District Counsel for the district in which the case was completed before the Immigration Judge.

If the case was originally filed before an Immigration Judge, the motion to re-open should be filed directly with the Board of Immigration Appeals. If the case was initially adjudicated by an officer of the Service, the Motion to Re-open should be filed with the officer of the Service having administrative control over the record of proceeding.

The motion to re-open can be filed only once and the decision cannot be reconsideration again. 

Documentation

1.     The Letter to the Board – A letter addressed to the Board/Officer with a brief write-up which includes the key points in the USCIS Notice of Denial and the arguments put forward by the filing party establishing the counter points.

2.     Related Documents - Relevant laws and regulations, definitions and legal transcripts of previously adjudicated similar cases can be attached to the letter.

3.     New evidence – Failure to provide new evidence is the most common reason for rejection of a motion to re-open. As per the law, the evidence offered has to be “………material and was not available and could not have been discovered or presented at the former hearing”. The filing party also needs to be careful in arguing a lack of understanding as the reason for lack of data as “…..if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing……..” the motion to re-open will be denied too.

It is not easy for an individual applicant to filing a motion to re-open without legal help. If necessary, we advise the applicant to pose specific questions in legal forums for guidance. But it is preferable that he or she consult an attorney, as in case the motion to re-open is denied, it will drastically cut down the options available to the alien.