Prior Orders of DeportationMotion to Reopen and Rescind an In Absentia Order of Removal or Deportation
In general, you are required to personally attend all hearings in Immigration Court and if you fail to do so, the Immigration Judge will enter an order of removal or deportation as a consequence. This is what is known as an in absentia order of removal. The motion to reopen in absentia proceedings is often based on exceptional circumstances or lack of notice. If it is based on exceptional circumstances, a motion to reopen must be filed within 180 days.
If it is based on a lack of notice, you may file a motion to reopen at any time. If successful, the order of deportation is rescinded and the Immigration Court schedules a new hearing.
Motion to Reopen based on Ineffective Assistance of Counsel
If you lost in Immigration Court because your attorney’s actions were incompetent or fraudulent, then you can remedy the outcome by filing a motion to reopen. In Matter of Lozada, the Board of Immigration Appeals set out the requirements for a claim of ineffective assistance of counsel. Only one such motion may be filed. And the deadline is subject to equitable tolling. This means that the deadline (either 90 or 180 days) starts running when someone discovers (or should have discovered) that the attorney’s actions were ineffective.
Joint Motion to Reopen
The Department of Homeland Security may file a motion to reopen jointly, together with the immigrant who was deported, at any time.
We have had considerable success, but each case is unique and each Chief Counsel's office is unique in their approach to Joint Motions to Reopen.