An alien who has lost an immigration court proceeding can often ask the immigration court to reconsider the case.1
A motion to reconsider a case in immigration court can be filed when the immigrant believes the judge incorrectly applied:
- The law,
- Existing facts or
- Federal immigration policy.
If, on the other hand, there are new facts or circumstances that were not known or available during the original hearing, the immigrant can bring a motion to reopen the case in immigration court.
Typically, a motion to reconsider must be brought within 30 calendar days of the date of entry of a final administrative order of
- deportation, or
A motion to reopen can be brought within 90 calendar days, subject to possible extension for asylum seekers, people order removed “in absentia” and in cases of fraud or exceptional circumstances.
To help you better understand motions to reconsider in immigration court, our California immigration lawyers discuss, below:
- 1. What is a motion to reconsider?
- 2. The difference between a motion to reconsider and a motion to reopen
- 3. What are some common reasons for a motion to reconsider?
- 4. How long do I have to file my motion?
- 5. Does filing a motion to reconsider cancel a voluntary departure agreement?
- 6. What happens if my motion is granted?
- 7. Can I appeal or try again if my motion is denied?
A motion to reconsider asks an immigration judge to reconsider his or her decision in an immigration court case.
Motions to reconsider are typically filed when an alien believes the judge applied the wrong legal standard or did not correctly apply the standard to the evidence.
Although they can be filed alone, they are commonly filed in conjunction with a motion to reopen.
Motions to reconsider a case in immigration court are based upon claimed errors in law, fact or procedure – such as when an immigrant is denied a constitutional right or the right to introduce relevant evidence.
A motion to reopen, on the other hand, is based on new or changed facts that did not exist or were not known by the alien at the time of the original case. For instance, if conditions in a country worsen so that an alien can no longer safely go home, a motion to reopen might be warranted.
Let’s take a look at a quick example to illustrate the difference between a motion to reconsider and a motion to reopen:
But after Keiko received her final notice of removal, her California criminal lawyer was able to get Keiko a new criminal trial based on witness perjury. This is a new fact, allowing Keiko to reopen her immigration case.
But let’s say that Keiko had tried to introduce evidence of the perjury during her original removal hearing, but the immigration judge wouldn’t let her present it. That might be a prejudicial error of law, which would also allow Keiko to bring a motion to reconsider.
As a result of the new trial, Keiko brings a combined motion to reopen and motion to reconsider in immigration court.
Examples of errors that might support a motion to reconsider include (without limitation):
- Exclusion of relevant evidence,
- Denial of legal rights (such as the right to a translator), or
- Failure to apply precedential court or Board of Immigration Appeals (BIA) decisions to the facts of the case.
The motion to reconsider must state with particularity the errors of fact or law in the Immigration Judge’s decision. It must cite both appropriate authority (statutes or case law) and the errors in the record
If a motion to reconsider is based on changes in the law, it should identify the changes and provide copies of the new law.
A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, deportation, or exclusion.2
The 30-day period begins to run when the notice of the decision is sent to the correct address.3
Yes. If an alien agreed to voluntary departure in order to avoid deportation, filing a motion to reopen or reconsider will terminate the grant.4
But filing a motion to reconsider will not automatically stay an order of deportation.
If an alien’s motion to reconsider is granted, the immigration court will decide the case again, taking into account the law or facts it failed to the first time.
There is no guarantee that the result will be different. But at least all the laws and facts will be considered.
In general, an alien may only move to reopen an immigration case once and move to reconsider an immigration case once.5
But denial of a motion to reconsider or reopen can be appealed. Additionally, many (though not all) cases can be appealed directly to the Board of Immigration Appeals. And if the BIA denies the appeal, the matter can usually be further appealed to the United States Court of Appeals for the Ninth Circuit.
Note that it is not necessary to file a motion to reopen or reconsider before filing an immigration appeal where both forms of relief are available.
However, there are strict time limits and formalities that much be reserved in both motions and appeals.
We highly recommend that people who have lost a case in immigration court promptly seek the help of a qualified California immigration lawyer.
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- See 8 CFR § 1003.23 — Reopening or Reconsideration before the Immigration Court.
- 8 USC § 1229a (b)(1).
- See Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996).
- See 8 CFR § 1240.26(e)(1) [voluntary departure]; Matter of Velasco, 25 I. (BIA 2009).
- See 8 U.S.C. § 1229a(c)(7)(A) and (c)(6)(A); See also Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008)