If you received an unfavorable decision in your immigration case, you may still have options. Understanding the difference between a motion to reopen vs. motion to reconsider in immigration court is important when deciding how to respond. At Ybarra Maldonado Law Group, we help individuals understand the differences between these motions and choose the right one for their specific situation.
Whether you are providing new evidence through a motion to reopen or correcting a legal mistake with a motion to reconsider, we can help you prepare and file a motion the right way.
To speak with a Miami or Phoenix immigration lawyer about your case, call (602) 910-4040 or contact us online today.
What is a Motion to Reopen in Immigration Court?
In immigration court, a motion to reopen is a written request asking the immigration judge in your case to review your case again and “reopen” proceedings. This can only be done when there is new evidence that was not available at the time of the initial decision, which could change the outcome of your case.
A motion to reopen is not about legal mistakes that the court made in the process of your immigration case. Instead, it is about facts that the court did not know or did not have access to when it made its decision. It’s important that the information presented is new. Resubmitting previously provided evidence or reasserting previously stated facts will not constitute “new evidence” and will not meet the requirements for a motion to reopen.
The motion must be filed within 90 days of the final order, unless there are exceptional circumstances in your case. It must also include documentary evidence (documents to support your claim) within the request. This type of motion is often used after a final order of removal.
How to File a Motion to Reopen Immigration Case
In order to file a motion to reopen an immigration case, you’ll need to file the motion with the proper authority, prepare the motion, and file it before the deadline. Normally, you will file with the court that made the decision on your case. This will either be the immigration court that deported you, or the Board of Immigration Appeals (BIA), if you filed an appeal.
In order to file, you’ll need to draft and finalize the motion to reopen and provide the required documents, as well as pay the filing fee, within 90 days of the original decision. This can be difficult without the help of an experienced immigration attorney.
At Ybarra Maldonado Law Group, we’ll determine where to send your motion, draft the motion, include supporting documentary evidence, and let you know what to expect after you file. Our Phoenix and Miami immigration lawyers can assist you throughout the process and ensure that you file your motion correctly and on time.
Where to Pay Motion to Reopen Fee
When you file a motion to reopen, you must pay a filing fee to the immigration court or appeals court that issued the final decision on your case, or submit a receipt proving payment. You can pay online through Pay.Gov, a payment portal run by the U.S. Department of the Treasury.
If you cannot afford the filing fee, you may be able to submit a fee waiver request along with your documents. Our legal team can help send your motion to reopen and payment to the right place.
How Long Does a Motion to Reopen Take?
According to the Executive Office for Immigration Review, an immigration judge must respond to a motion to reopen within ten (10) days of filing, unless they specifically state otherwise.
You’ve Had Your Motion to Reopen Granted. What Next?
If the court grants your motion to reopen, your immigration case is active again. This means that the immigration judge or BIA will reevaluate your case, taking into account the new evidence you have provided. Your case will return to court, and you’ll have the chance to present your side and submit additional evidence that could change the prior decision.
It’s essential to stay in contact with your immigration lawyer so you can keep up-to-date on the status of your motion and prepare for any upcoming judicial proceeding.
What is a Motion to Reconsider in Immigration Court?
A motion to reconsider is a written request asking the same immigration judge or Board of Immigration Appeals that made the initial decision to review the case again. You can only do this if the decision was legally or factually incorrect.
Unlike a motion to reopen, this type of motion does not include new evidence. Instead, it focuses on legal arguments, showing that the court based its decision on an incorrect application of the law or that it overlooked or misinterpreted the evidence previously presented. You must explain how the court improperly applied the law while using the same evidence that you already submitted in your case.
If you believe your final decision was based on a legal mistake, we can help you file a motion to reconsider and fight for a better outcome.
Who Can Make a Motion to Reconsider?
Any noncitizen who believes the judge or BIA misapplied the law or misinterpreted evidence may file a motion to reconsider. This includes people involved in removal proceedings.
You can file a motion to reconsider when you believe the court made its decision based on an incorrect application of immigration law or a misunderstanding of the evidence presented. While you cannot submit new evidence with this type of motion, it does allow you to correct any misunderstood legal arguments or facts that factored into the prior decision.
How to File a Motion to Reconsider
To file a motion to reconsider, you must submit a written request to the same immigration judge that issued the final decision, or the Board of Immigration Appeals, if you filed an appeal. Your request should clearly explain the legal errors made and why the BIA should review the ruling based on those legal errors.
You must also include a filing fee or a fee waiver request. The motion to reconsider must be filed within 30 days of the final decision. It is essential to send your motion to the correct location; a wrong address or missing information could result in a rejection. Our team helps clients prepare complete and accurate motions, so you don’t miss anything during this process.
How Long Does a Motion to Reconsider Take?
An immigration judge is required to provide a response to your motion to reconsider within ten (10) days of filing, unless they specifically state otherwise.
Immigration Appeal vs. Motion to Reopen vs. Motion to Reconsider
Immigration appeals, motions to reopen, and motions to reconsider can easily get confused. However, each one serves a different purpose in the immigration process. Below, we explain what each action means and how you can use each to challenge an unfavorable decision from USCIS or an immigration judge.
Knowing the right option to choose can make a big difference in your case. An immigration attorney in Miami or Phoenix can help you determine which action best suits your situation.
Immigration Appeal
- Involves asking a different authority, like the Administrative Appeals Office or the Board of Immigration Appeals, to review the initial decision made by the original immigration court.
- Used when you believe the decision was wrong, and you want a higher authority to take another look.
- Does not allow you to submit new evidence. The review is based on the evidence presented in the original case.
- Must be filed within 15-30 days of the original decision.
Motion to Reopen
- Involves asking the same immigration judge or the Board of Immigration Appeals to review your case again due to newly discovered evidence or changed circumstances.
- Used to present additional evidence to the judge or appeals board that wasn’t available before. This is typically done when something significant has changed or new documentary evidence has become available.
- Must be filed within 90 days of the original decision, unless there is a special reason you cannot file within that time frame.
Motion to Reconsider
- Involves asking the same immigration judge or Board of Immigration Appeals to review your case again because the law was applied incorrectly.
- Used when the original judge misapplied the law or excluded necessary evidence when making their decision.
- Does not allow you to submit new evidence. The review is based on the evidence presented in the original case.
- Must be filed within 30 days of the original decision.
How to Choose What to File
Choosing whether to file an immigration appeal, a motion to reopen, or a motion to reconsider depends on the reason you believe your case was decided unfairly.
If you have new evidence that wasn’t available before, a motion to reopen may be the best choice. If you think the immigration judge or BIA made a mistake in applying the law, a motion to reconsider may be right for you. Additionally, if you want a different authority to review your case, you may need to file an immigration appeal instead.
Because each option has different legal requirements, it’s important to speak with a Miami or Phoenix immigration appeals lawyer who can review your case and help you take the correct next step.
Let the Phoenix & Miami Immigration Appeals Lawyers at Ybarra Maldonado Law Group Help Your Case
If you’ve received an unfavorable decision in your immigration case, you need to act quickly in order to preserve your right to appeal, reopen, or reconsider your case. Luckily, the team at Ybarra Maldonado Law Group is ready to help.
With offices in both Phoenix, AZ, and Miami, FL, we help the residents of our communities through a variety of immigration matters. Our attorneys can review your case, identify the best course of action, and assist you in gathering the necessary evidence to support your claim. We’ll ensure your motion or appeal is filed correctly, on time, and with the proper authority. Call (602) 910-4040 or contact us online to speak with an immigration attorney who can help protect your future today.
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