Motions to Reopen in Absentia
What are Motions to Reopen?
If you were ordered removed from the U.S. in absentia, you may be able to reopen your case. This will let you have a new hearing date to apply for any type of relief available for you. In addition, you may reopen your case if you show changes in the circumstances.
When can I file a Motion to Reopen?
You can file a motion to reopen under the following situations:
You never received your hearing notice (Notice to Appear)
You failed to appear in court due to exceptional circumstances
Filing of a motion to reopen allows you to remain in the United States without being removed because these motions come with a Stay of Removal. The only way you could be removed is if the Immigration Judge denies your motion.
I never received my court date notice (NTA)
If you never received your hearing notice (NTA) chances are that you missed your court date and the Immigration Judge ordered you removed in your absence (in absentia). If this is your situation, then you can file a motion to reopen without any time restrictions.
The first thing to do in this situation is to review your Immigration Court file to see where the NTA was sent to. If it shows that it was sent to a different address then where you live then you have a great chance of getting your case reopened. Even if the NTA was mailed to your correct address, you can still file a motion to reopen if at the time the NTA was mailed to you, you were in State or Federal Custody.
What are exceptional circumstances for failure to appear
It is the requirement that you must prove in order for the Immigration Judge to reopen your Immigration Court case. Most typical situations are serious illness or death of a spouse, child, or parent. There is a 180 days deadline to reopen your case based on exceptional circumstances so it is essential that you file your motion to reopen right away. Serious illness or death is not the only thing that meets exceptional circumstances. There are situations that are out of your control. However, traffic has been ruled to not be an exceptional circumstance. Therefore it is important to make sure that you make it to court early to avoid a deportation order.
Motions to Reopen due to changes in the circumstances
If you have a removal order because perhaps you didn't qualify for any relief; but something has changed in your life and now you qualify, you may file a motion to reopen to allow you to apply for the new Immigration benefit.
How do I file a motion to reopen based on changes in circumstances?
When you have new facts or a change in the law that benefits you then you must “state the new facts that will be proven at a hearing if the motion is granted” and include “affidavits or other evidentiary material.” It is important to know that this new evidence was not available and could not have been discovered or presented at the former hearing.
What are other ways to reopen my immigration court case?
There are other ways to reopen your immigration court case; but before you do so, you should consult with an experienced Immigration Attorney. Some of these options are:
Ineffective assistance of prior counsel
Newly vacated convictions
Changes in personal circumstances that impact eligibility for relief
Violations during the underlying proceeding
New case law that affects removability or eligibility for relief.