2. Using Motions to Reopen to Give Clients a Second Chance
Alicia Granse (‘19)
Nick Kaylor (‘19)

3. Motions to Reopen
Federal immigration courts ordered 57,069 people to leave the United States in the first six months of 2017, which was a 31% increase over the same period the year before.
Changed circumstances can mean a client has an alternate basis for avoiding removal.

4. Agenda Introduction: Why a Motion to Reopen May Help Your Client
Procedural Nuts and Bolts
Substantive Law
Sample Scenarios

5. A motion to reopen must show:
Material new facts or evidence,
unavailable during the original proceeding,
that could not have been discovered/presented at original hearing.

6. Common grounds to reopen
Changes after the final order of deportation, removal or exclusion:
Changed country conditions (statutory)
Domestic violence (statutory)
In absentia order
Ineffective assistance of counsel
Changed family circumstances
Changes in the law

7. Motion to Reopen vs. Motion to Reconsider
Motion to Reopen - new determination with new facts
Motion to Reconsider - seeks to correct errors of fact or law

8. Procedural Requirements
Numerosity
Timing
Filing and Jurisdiction
Documents

9. Numerosity Exceptions: These grounds have numerosity limit:
Changed country conditions
Individuals applying for relief as a battered spouse or child

10. Timing: 90 days These grounds have timing exceptions:
Changed country conditions
In absentia orders
Joint motions with DHS
Requesting a sua sponte reopening

11. Jurisdiction
Must be filed with the court that last had administrative control over the proceedings.

12. Filing: Sample Timeline
2009
Filed asylum claim to the IJ
Denied asylum, but filed timely appeal to the BIA.
2013
Regime Change
Client’s country of origin goes through a regime change which is adverse to the client.
2011
Appeal Before BIA
Denied by the BIA. Client is released on an order of supervision.
2014
New Asylum Claim
File a motion to reopen before the BIA based on changed country conditions.

13. Filing: Sample Timeline
2009
Filed asylum claim to the IJ
Denied asylum, but did not appeal.
2013
Regime Change
Client’s country of origin goes through a regime change which is adverse to the client.
2014
New Asylum Claim
File a motion to reopen before the IJ based on changed country conditions.

14. The Departure Bar
Struck down by every Circuit EXCEPT THE 8TH.

15. Fees
$110
EXCEPTION: No filing fee if your claim for relief does not require a fee.

16. Stays of Removal
A motion to reopen DOES NOT trigger an automatic stay of removal (except in cases of in absentia orders).
Attorneys and pro se individuals must file a separate Discretionary Stay of Removal.

17. Stays of Removal No filing fee. Basic requirements:
Recitation of facts
Specific statement of the time exigencies involved
Not general statements
Emergency vs. Non-Emergency

18. Appellate Review IJ/BIA have the discretion to deny a motion to reopen
Appeal IJ denial to the BIA
A BIA denial can be appealed to the circuit of the immigration court that had control over the proceedings before the BIA
Standard of Review: Abuse of Discretion

19. MTR Filing Checklist
Notice of Entry of Appearance: EOIR-27 (BIA) or EOIR-28 (IJ)
$110 for filing fee (unless relief requested does not have a fee, i.e. asylum)
Supporting documents and evidence (affidavits, government reports, etc.)
A copy of the application for relief and all supporting documentation (i.e. I-589 (asylum application), I-130 (Petition for Alien Relative), etc.)
Proof of service on the opposing party (served on the Office of Chief Counsel for the district in which the case was completed before the IJ)
Alien’s Change of Address Form (if applicable): EOIR-33/IC or EOIR-33/BIA
Motion for Stay of Removal

20. Sample Scenarios Change in Country Conditions In Absentia
Due Process Violations
Ineffective Assistance of Counsel
Change in Family Circumstances
Change to the Law

21. Change in Country Conditions
Asylum, Withholding of Removal, CAT
Must show a change in country conditions, cannot be based solely on changed personal circumstances.
Timing restrictions do not apply.

22. In Absentia Minors Change in address
180 day deadline to file if you can show “exceptional circumstances”
No time restriction if you can prove that you received no notice

23. Collateral Attacks on the Order
Due process violations
Vacated criminal charges

24. Ineffective Assistance of Counsel
Assistance doesn’t have to be brilliant, but it can’t be so fundamentally unfair that the case was not reasonably presented.

25. Sua Sponte Motions “At the court’s own will.”
Reserved for particularly sympathetic cases/exceptional circumstances.
Both the BIA and the IJ may reopen an order of removal sua sponte at its discretion.
Includes joint motions with DHS.

26. Sua Sponte: Family Change
Some clients may file an I-130 if there has been a significant change in family circumstances.

27. Sua Sponte: Change in Law
The change must be fundamental in nature and not merely an incremental development in the state of the law.

28. REMEMBER
Both the BIA and the IJ have the discretion to deny any motion to reopen.
Appellate standard of review: abuse of discretion

29. What Would You Do?

30. Client #1: Sergio Client Facts:
Sergio, a Honduran client who entered the United States in 2016 at age 10 to join his family in Minneapolis.
Sergio entered the US without inspection at the Mexican border.
Sergio was picked up immediately after crossing the border and was released to the custody of his aunt Sara, a legal permanent resident of Texas, after being found to have a credible fear of return to Honduras.
His paternal grandparents, with whom he had been living, had been found murdered by the client and his cousin one day after school.
Sergio provided aunt’s address in Texas to the court, but moved in with his parents (who are undocumented) in Minneapolis. Sergio has one US citizen brother.
The court sent notice of a hearing to the aunt’s residence. Sergio did not appear, and was found removable in absentia for failure to appear on November 10, 2017.
Aunt Sara claims to have received no notice to appear, but did find a notice that Sergio had been ordered removed.

31. Sergio managed to find pro bono counsel after receiving notice of the order of removal. It is February 11, 2018.
1. What are the two deadlines for filing a motion to reopen for an in absentia order?
180 days or no deadline
2. Depending on which deadline applies, what is the burden on the immigrant for each deadline?
180 days: exceptional circumstances No deadline: received no notice
3. Can Sergio file a motion to reopen with the immigration judge?
Yes, he is within the 180 day deadline if he can show exceptional circumstances prevented him from attending (i.e. he is a minor and had to move to his parents home)

32. 4. Assuming the immigration judge reopens Sergio’s proceedings, does he have any relief available? If the immigration judge denies Sergio’s motion to reopen, can he appeal? Assume the immigration judge grants Sergio’s motion to reopen, but ultimately denies any relief, and Sergio does not appeal. Could Sergio file a motion to reopen based on changed country conditions?
Yes, possibly asylum, withholding, or CAT.
Yes, he can appeal to the BIA.
Yes, but you will need to research if any new, material changes in Honduras have occurred that would affect Sergio. You also have to consider the departure bar. If Sergio’s return to Honduras is imminent, his MTR may be waived once he is deported.

33. Salah’s Pre-Removal Order Facts
Salah is an Iraqi national who entered the United States in 1997 as a refugee.
Salah filed for adjustment of status 1998 and was granted his adjustment.
Salah was arrested and convicted in Des Moines, Iowa for simple possession of cocaine and meth in 2006.
Salah served a year in jail concurrently for both counts.
Salah was transferred to ICE custody and was ordered removed as an “aggravated felon/drug trafficker” because of his two drug possession convictions and his LPR status was revoked.
Salah did not appeal his case and was released on an order of supervision.
Client’s Post-Removal Order Facts
It is 2018.
Salah has a girlfriend who is a U.S. Citizen and they have been together since 2012.
Salah has 2 U.S. Citizen children with his girlfriend who are minors.
Salah was picked up by ICE in December 2017 and he is now facing imminent removal to Iraq.
In 2010, the Supreme Court decided Carachuri-Rosendo v. Holder and held that second or subsequent simple possession offenses are not aggravated felonies/drug trafficking offenses when the state conviction is not based on the fact of a prior conviction.

34. Where would a motion to reopen for Salah need to be filed?
2. Can a motion to reopen based on changed country conditions be filed for Salah?
3. If a motion to reopen based on changed country conditions is an option, what relief is available for Salah?
4. Can Salah file a sua sponte motion based on a change in law?
5. Will Salah need to pay a filing fee?
6. Does a motion to stay removal need to be filed for Salah?
To the immigration judge that last had control over the proceedings.
Possibly: need to look at Iraq country conditions since the removal order was entered, what’s changed?
Potentially asylum, but his aggravated felony makes him ineligible, and he is still eligible for withholding and under CAT.
Yes, Carachuri argument that his two possession convictions are not actually aggravated felonies and he is therefore eligible for asylum and cancellation of removal.
Yes, $110 for the sua sponte motion.
Maybe not, because he is released on an order of supervision his removal probably isn’t imminent.

35. Questions?