Appeals And Motions To Reopen And Reconsider | The Law Office Of Timothy W. Davis, LLC | A Full Service Immigration Law Firm Specializing In Beating Deportation

Appeals and Motions to Reopen and Reconsider

Motions to reopen and motions to reconsider

Motions to reopen and motions to reconsider may be filed in the immigration court and the Board of Immigration Appeals. Motions to reconsider ask the court to reconsider a possible error in fact or law from a previous decision. Motions to reopen ask the court to consider new evidence that was not available before. Both motions have strict filing deadlines – the motion to reconsider must be filed within 30 days of a final judgment and the motion to reopen must be filed within 90 days of a final judgment. However, there are exceptions and even if your case has been decided years ago, there may be a way to get your case reopened.

Motions to reopen are a key component of the firm’s business. If you received a deportation order many years ago and you are still in the United States and you now have some type of relief (such as marriage to a U.S. citizen), you must reopen your removal proceeding before you can get your green card. The firm prides itself on its motions to reopen, especially when the case has been closed for many, many years. We have reopened cases where there was no hope and where other firms had failed. It is a big risk for you to spend thousands of dollars on an attorney to reopen your case because you really only have one chance to get it right. Make sure you have an experienced attorney who knows what he is doing so you do not have to spend more money on a second attorney to fix the errors of your first attorney, which may not be fixable.

Appealing to the Board of Immigration Appeals

The most import thing to remember is that even though you may have lost the battle in the immigration court, you may not have lost the war. The immigration court is your best chance of beating deportation, but the Board of Immigration Appeals (BIA) is you next best chance. The BIA is a federal immigration appeals court and every appeal from every immigration court goes to the BIA. This is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Remember, you only have 30 days to file a notice of appeal to the BIA.

In some cases, the Department of Homeland Security will appeal your case even though you won. You need an experienced attorney to protect your hard-fought victory.

Federal appeals courts

The federal appeals courts are your last hope at beating deportation. The federal appeals courts review decisions by the Board of Immigration Appeals. Congress has restricted the jurisdiction of the federal appeals courts in recent years making it all the more difficult to prevail in these courts. Nevertheless, this option should not be overlooked. Our firm specializes in strategic motions practice in the Board of Immigrations Appeals and well-written and well-researched briefs in the federal appeals courts to give you the best possible chance to beat deportation.

IMMIGRATION COURT

In the United States, there are 52 immigration courts, two detained-only immigration courts, and two special processing centers. There is also an immigration court in Puerto Rico. Most of these courts are not not housed in traditional courthouses, but are located in ordinary looking office buildings. The Department of Justice controls and manages these courts and you can view their website for more detailed information on each court.

If you are in removal/deportation proceedings, your case will be heard in one of these courts. Your best chance of beating deportation is in these courts. In many cases, the immigration judge has individual discretion to decide your case, as in waiver applications or cancellation of removal. In these case, the immigration judge can consider at many factors – humanitarian issues, family issues, special needs, length of residency, good moral character, etc. – in making a decision about deportation. In other cases, the immigration judge is bound by law to decide your case, as in deportation based on criminal convictions, material support bars, and persecution bars. In these cases, the immigration judge has little or no discretion to decide your case because the immigration judge is bound by the current law to decide your case. Applications for asylum require a combination of discretion and the application of law.

IMPORTANT: If you lose your case in the immigration court, you have not lost your fight to beat deportation . . . you can file:

  • a motion to reopen – to have the immigration judge consider new evidence or a change in circumstances (90 day time limit, with special rules for applying after the 90 day time limit)
  • a motion to reconsider – to have the immigration judge reconsider his or her ruling based on an error of fact or law (30 day time limit)

You can also file an appeal to the Board of Immigration Appeals and have new judges look at your case (30 day time limit).

THE BOARD OF IMMIGRATION APPEALS

The most import thing to remember is that even though you may have lost the battle in the immigration court, you may not have lost the war. The immigration court is your best chance of beating deportation, but the Board of Immigration Appeals (BIA) is you next best chance.

The BIA is a federal immigration appeals court and every appeal from every immigration court goes to the BIA. Like the immigration courts, this court is also managed and controlled by the Department of Justice. You can review the court’s information at the their website.

An appeal to the BIA is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Our firm will file a notice of appeal, review your immigration court transcript, prepare a brief, and reply to any response brief filed by the Department of Homeland Security. If the BIA determines that your case was wrongly decided, the BIA will remand your case back to the immigration court so that the immigration court can correct its mistakes, which means that your will beat deportation.

However, if the BIA determines that the immigration court did not make any mistakes, your fight against deportation is still not over. You can file a motion to reopen and a motion to reconsider with the BIA.

In addition, you now have the right to appeal your BIA decision to one of the 11 federal courts of appeals.

THE FEDERAL COURTS OF APPEALS

The federal appeals courts are your last hope at beating deportation. The federal appeals courts review decisions by the Board of Immigration Appeals. Congress has restricted the jurisdiction of the federal appeals courts in recent years making it more difficult to prevail in these courts. Nevertheless, this option should not be overlooked.

The federal appeals court can only decide your case based on the record in the immigration court and the Board of Immigration Appeals. It is very important to submit critical information to the Board of Immigration Appeals through either a motion to reopen or a motion to reconsider concurrent with any appeal to the federal appeals courts. Our firm specializes in strategic motions practice in the Board of Immigrations Appeals and well-written and well-researched briefs in the federal appeals courts to give you the best possible chance to beat deportation.

If the federal appeals courts reverses a decision of the Board of Immigration Appeals, your case will be sent back to the Board of Immigrations Appeals. The Board of Immigration Appeals will then send the case back to the immigration court, which means you will beat deportation.

THE UNITED STATES SUPREME COURT

If the federal appeals court denies your case, the last and absolute final step is to apply for certiorari to the United States Supreme Court. Although your case may not be heard by the Supreme Court, the court may still reverse a federal appeals court decision if there were any apparent errors.

 

Recent Case Results

March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief

March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief

Facts: Last year, the firm reported that our client’s removal proceedings had been reopened, sixteen years after our client had been unjustly deemed ineligible for INA 212(c) relief and ordered removed.

The Firm’s Representation: After our client’s case was reopened, venue for the removal proceedings was moved to the Charlotte, North Carolina Immigration Court, near where our client resided. Our client demanded that the firm continue to represent him and the firm agreed that we were in the best position to represent our client moving forward. The firm made the final preparations for our client’s INA 212(c) application for relief and represented our client at his individual hearing on relief in the Charlotte, North Carolina Immigration Court.

Outcome: On March 31, 2016, our client was finally granted INA 212(c) relief, nearly seventeen years after our client had been unjustly deemed ineligible for such relief. Our client was once again a lawful permanent resident. Needless to say, our client was extremely happy with the outcome.

Comment: Our client was a citizen of Cambodia, a country that refused to issue our client a travel document to return to Cambodia after he had been ordered removed to Cambodia. Had Cambodia issued our client a travel document, our client would have been physically deported years ago. Our client was lucky, but sadly thousands of green card holders were deported by a United States immigration system that obstinately and unjustly denied their legal right to apply for INA 212(c) relief, a relief that would have provided these green card holders a chance to retain their legal status and remain in the United States.

January 28, 2016 – After near deportation, citizen of El Salvador enters the United States with a green card

January 28, 2016 – After near deportation, citizen of El Salvador enters the United States with a green card

Facts: In early 2013, a citizen of El Salvador came to the firm seeking a solution to his immigration problems.

The Firm’s Representation: This case was one of the most difficult cases that the firm has ever handled because the initial outlook for the case was not good at all. In early 2013, our client and his U.S. citizen wife approached the firm to see what could be done. Our client had an in absentia removal order from 2005 from when he crossed the U.S. border and was placed in removal proceedings but failed to attend his immigration court hearing. In addition, our client had two DUI convictions. There was no way to reopen our client’s case through the immigration court. So, the firm petitioned Immigration and Customs Enforcement (ICE) to join a motion to reopen. Concurrently, the firm submitted a family based I-130 petition to USCIS. The firm knew that reopening with ICE would be dicey with the DUI convictions. In addition, at that time ICE had a stated policy that it would not join motions to reopen so that non-citizens could pursue the Provisional Unlawful Presence Waiver. The firm filed the joint motion request in May of 2013. The request was denied in December 2013. The firm persisted with ICE and asked for a re-examination of the request in January 2014. Several weeks later, ICE detained our client in order to physically deport him. The firm worked fast and filed a stay of removal with ICE which was granted several days later. Fortunately, in August 2014, ICE agreed to reopen and terminate our client’s removal order. Once the removal order was terminated and the I-130 petition was granted, the firm filed an I-601A waiver for our client, which was granted on April 1, 2015. Then, the firm then processed our client’s immigrant visa at the U.S. Embassy in San Salvador, El Salvador.

Outcome: On January 28, 2016, three years after the firm started the representation, our client entered the United States with his immigrant visa.

June 10, 2015 and March 20, 2015, The Board of Immigration Appeals reopened the deportation cases for two citizens of Cambodia

June 10, 2015 and March 20, 2015, The Board of Immigration Appeals reopened the deportation cases for two citizens of Cambodia

Facts: Last year, two citizens of Cambodia approached the firm to see whether the firm could reopen their deportation orders from the mid 1990s. Both of our clients had serious criminal convictions that made them deportable as “aggravated felons” under the Immigration and Naturalization Act.

The Firm’s Representation: After receiving the results of the FOIA requests, the firm discovered that both of the citizens of Cambodia had been denied the opportunity to seek INA 212(c) relief in their deportation cases. The firm believed that reopening was possible based on the recent Supreme Court cases of Judulang v. Holder, 132 S. Ct. 476 (2011) and Vartelas v. Holder, 132 S. Ct. 1479 (2012), which broadened the availability of INA 212(c) relief. In February, 2014, the Board of Immigration Appeals issued its decision in Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), which cemented the Supreme Court decisions in the immigration removal system. The biggest challenge that the firm faced in reopening the cases was demonstrating that our clients were eligible for INA 212(c) relief and that they would merit relief as a matter of discretion.

Outcome: Both of our clients’ motions to reopen were granted by the Board of Immigration Appeals. Our clients were lucky because the Cambodia is not accepting criminal deportees from the United States and our clients were permitted to remain in the United States for many, many years after their deportation orders were final. Now, our clients will have the chance to get their green cards back.

August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported

August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported

Facts: A citizen of El Salvador was detained by ICE – he had no status and a conviction for possession of marijuana. He hired a very reputable immigration attorney. Nevertheless, the immigration attorney did not know how to deal with a Maryland conviction for possession of marijuana. The Immigration Attorney asked the Immigration Court to grant the citizen of El Salvador voluntary departure, which was granted on May 1, 2013. The citizen of El Salvador’s family was frantic because they did not want him to be deported. The family came to the firm on May 15, 2013.

The Firm’s Representation: First, jumped into action an filed a coram nobis petition in the Maryland state court. Second, the firm filed a motion to reopen and a stay of deportation with the Immigration Court. Time was ticking because ICE wanted to physically deport our client. After several phone calls to the Immigration Court clerks, the stay was granted. Two days later, the detention center asked our client to pack his belongings because he was on the deportation list for the day. Even though the firm had previously contacted ICE and informed them of the stay, the detention center had not received notice. After several further phone calls, our client was taken off the deportation list. The firm had stopped our client’s deportation with only two days to spare. After a hearing on July 26, 2013, our client’s coram nobis petition was granted. The firm then filed a joint motion to reopen and a joint motion for bond in the Immigration Court, with the permission of ICE, and our client was released from ICE custody on $3,000.00 bond on August 12, 2013.

Outcome: Our client lost everything when he pleaded guilty to possession of marijuana – he lost his TPS status, he was placed in removal proceedings, he was detained, and he was almost deported. Tragically, our client was completely innocent of these charges which was borne out on postconviction. Our client is now in the process of getting his TPS back and possibly seeking cancellation of removal in the Immigration Court.

May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention

May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention

Facts: A citizen of El Salvador was detained detained by ICE on May 8, 2012 and ordered deported on December 3, 2012. His fiance came to the firm for help.

The Firm’s Representation: First, the firm had to reopen our client’s immigration case. In early January 2013, the firm filed a motion to reopen with the Immigration Court, which was eventually granted. Then, the firm reviewed the underlying reason for the ICE detention – our client’s conviction for sex offense in the fourth degree. Unfortunately, our client had received really bad advice from his criminal defense attorney who advised our client to decline an offer of Probation Before Judgment from the sentencing judge. After analyzing the conviction and sentencing, the firm came to the realization that if our client had accepted the Probation Before Judgment, he would not have been subject to mandatory detention in the immigration context. The firm immediately filed a petition for post-conviction relief in the Circuit Court of Maryland.

Outcome: On April 22, 2013, the post-conviction petition was granted. On May 2, 2013, based on a motion for reconsideration of bond in the Immigration Court, bond was granted and our client was released from ICE custody later that same day. Naturally, our client and his family were thrilled to be released after almost one year of detention that was caused by bad advice from his criminal defense attorney. Our client’s immigration case remains pending in the Immigration Court, but our client now had several options available to him to get into a legal status.

October 17, 2011 – Citizen of Togo received Reopening from the Board of Immigration Appeals

October 17, 2011 – Citizen of Togo received Reopening from the Board of Immigration Appeals

Facts: In 2001, a citizen of Togo came to the United States and applied for asylum, which was denied. In 2010, he tried to get his case reopened and sought assistance from a local law firm in another state. The prior law firm filed a motion to reopen, which was summarily denied. Then, the prior law firm filed a second motion, which was also denied. After the second denial, the citizen of Togo was distraught, depressed, and ready to give up. Instead of giving up, he sought the firm’s help.

The Firm’s Representation: The firm reviewed our client’s case and saw that his previous law firm had made several egregious mistakes in their motions. The previous law firm had asserted that our client was eligible for relief, but for the wrong reasons. The firm re-filed a motion to reconsider asserting that our client’s case should have been reopened based on a different theory of law. The firm asked the Board of Immigration Appeals not to penalize our client for the sins of his previous counsel.

Outcome: On October 17, 2011 the Board of Immigration Appeals granted the motion to reopen. Our client is now free to adjust status in the Immigration Court and finally after over 10 years, get his green card. Our client’s case is now pending before the Immigration Court and USCIS.

June 6, 2011 – Citizen of Kyrgyzstan received asylum after the firm won a remand in the Board of Immigration Appeals

June 6, 2011 – Citizen of Kyrgyzstan received asylum after the firm won a remand in the Board of Immigration Appeals

Facts: A citizen of Kyrgyzstan applied for asylum in the United States based on religious persecution in his home county. Unfortunately, he was denied asylum. He retained an attorney to represent him before the Board of Immigration Appeals (BIA). His appeal was denied. He was unsatisfied with his attorney and asked the firm for help with his case.

The Firm’s Representation: The firm took our client’s case and immediately filed a petition for review in the United States Court of Appeals for the Fourth Circuit. Simultaneously, the firm filed a motion to reconsider with the BIA. The firm determined that our client’s previous attorney missed a crucial legal argument in the direct appeal to the BIA.

Outcome: On November 10, 2009, the BIA granted the motion to reconsider and remanded the proceedings back to the immigration court. On June 6, 2011, with the assistance of the firm, our client was granted asylum.

September 27, 2010 – Citizen of Guyana received reopening from the Board of Immigration Appeals, eight years after he was ordered deported

September 27, 2010 – Citizen of Guyana received reopening from the Board of Immigration Appeals, eight years after he was ordered deported

Facts
In 2000, a citizen of Guyana applied for a green card based on marriage to his U.S. citizen wife. However, at his hearing in the Immigration Court, the government alleged that he had made a false claim of citizenship. The Immigration Judge agreed and ordered him removed. The non-citizen fought his case on appeal for nearly eight years. In the process, he spent thousands of dollars on lawyers. After his last appeal was denied in November 2009, he asked the firm to help him with his case.

The Firm’s Representation
The firm reviewed our client’s case and noticed that his immigration court trial attorney had made several errors. The firm filed a Motion to Reopen based on ineffective assistance of counsel in January 2010.

Outcome On September 27, 2010, the BIA granted the motion to reopen. Our client’s case has been remanded to the Immigration Court and his case is still pending there.