How to Respond to a Motion in Family Court Florida

People who lose their immigration court proceedings may be able to ask the court to reopen or reconsider their case.¹

A motion to reopen a example in immigration court is based on new facts that were not known or in being at the time of the original hearing.

A motion to reconsider is based on incorrect awarding of police force or policy to the prior determination — such equally a deprival of constitutional rights.

Immigrants with cases in clearing court can generally file one movement to reopen and one motion to reconsider (or both at the same time).

A motion to reopen must generally be filed within 90 days post-obit entry of a final administrative club of removal, displacement, or exclusion.

In that location are, however, some exceptions, specially for immigrants whose removal orders were issued "in absentia" (when the immigrant couldn't attend, often considering he or she was in custody).

To help you amend understand motions to reopen an immigration court case, our California immigration lawyers discuss, below:

judge's gavel on top of stack of books with blocks spelling out immigration in front of them

i. What is a move to reopen?

A motion to reopen allows an immigrant who loses his or her case in clearing court to present new or changed facts to the clearing estimate.

The motion to reopen must land the new facts that volition be proven at a hearing if the move is granted. The facts must exist supported by affidavits or other evidentiary material.²

1.ane. The deviation between a motion to reopen and a motion to reconsider

Motions to reopen a case in immigration court must exist based upon new facts or circumstances that have changed, or been discovered, since the original hearing.

If, on the other hand, the immigrant thinks the clearing guess made an error in constabulary or procedure – such equally denying his or her ramble rights — the proper motility is a motility to reconsider. A motion to reconsider lets the immigration court revisit how the case was conducted.

Example: Ahmed lost his case battling his removal for conviction of an "inadmissible crime." During his case, he applied for and was denied asylum. Simply while he is pending displacement, conditions in his country worsen. These new conditions brand it likely that if he is sent back, he will be persecuted. This is a inverse fact that warrants reopening his instance.

But let's say instead that Ahmed had been at chance of persecution during his original hearing, but was never allowed to nowadays testify of it. That would be an fault of law. The proper motion for Ahmed to bring would be a motion to reconsider.

i.2. What are some mutual grounds for filing a movement to reopen?

Motions to reopen are ofttimes used, among other things, to utilise for:

Suspension of displacement,
Asylum and withholding of removal,
Relief under the U.N. Convention Against Torture (CAT protection),
Adjustment of status,
NACARA 203 relief, or
Ineffective assistance of counsel.

Once more, the immigrant is not entitled to reopen his or her case on any of these grounds unless there are new or changed facts that were not — and could not have been — raised during the original hearing.

2. How long practice I accept to file my move?

With a few exceptions, a motility to reopen must be filed within 90 days of the date of entry of a last administrative society of removal.³

2.i. What exceptions are there to the filing borderline?

Exceptions to the 90-twenty-four hours deadline include:

An "in absentia" social club of removal – motility to reopen may be filed inside 180 days if there were "exceptional circumstances," or at any fourth dimension if the sole reason the applicant failed to announced at the hearing is because he /she was in state or federal custody;⁴
The government agrees to file a joint movement to reopen — no fourth dimension limit;^five
Application for asylum or withholding of removal based on changed country weather that could non have been discovered or presented at the prior hearing — no time limit.
Battered spouses, children, and parents – no time limit if the motion is based on extreme cruelty or infrequent and extreme hardship to a relative who is a U.Southward. citizen or light-green card holder and the move is accompanied by a cancellation of removal application.^six

2.2. Why would the government concord to reopen my case?

Sometimes Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) volition agree to file a joint move to reopen. When the parties file jointly, the 90-24-hour interval limitation becomes irrelevant.

For instance, an alien might have convincing show of health problems or other infrequent circumstances that make it likely that a motion would be granted.

In compelling cases, the government would rather simply reopen a case than expend time and free energy fighting it.

2.3. What constitutes "exceptional circumstances" allowing an "in absentia" removal order to be challenged later?

An in absentia removal order may exist rescinded upon a motion to reopen if the alien demonstrates that failure to appear was considering of infrequent circumstances beyond the conflicting's command.⁷

Exceptional circumstances can include (but are non limited to):

Battery or extreme cruelty to the conflicting or any child or parent of the alien,
Serious disease of the alien, or
Serious disease or expiry of the alien'due south spouse, child, or parent.⁸

In such a instance, the applicant has 180 days to file a motion to reopen to rescind the in absentia order.^nine

ii.4. What is "equitable tolling"?

In improver to the foregoing exceptions, the running of the 90 days (or the 180 days, if applicable) may sometimes exist "tolled" (paused). This can occur during any flow of time in which the immigrant is prevented from filing a move to reopen because of deception, fraud, or error.¹⁰

Such a break of the running of time is known as "equitable tolling."

The time menses will only be equitably tolled, notwithstanding, if the petitioner acted with due diligence in discovering the deception, fraud, or fault.

This means that if you knew – or should take known — about the deception, fraud, or fault, but you didn't do anything well-nigh it, the time menstruation will continue on running.^eleven

To forbid this, an applicant for immigration relief should contact an experienced California immigration lawyer immediately subsequently discovering the deception, fraud, or error.

2.5. Equitable tolling based on ineffective assistance of counsel

Aliens whose lawyers engaged in fraudulent or erroneous conduct can take advantage of the equitable tolling doctrine.¹²

To prevail on an ineffective assistance of counsel claim, the alien must testify two things:

The conflicting'due south lawyer failed to perform with sufficient competence; and
The alien was prejudiced by the poor performance.¹³

The alien will not be able to win an effective assistance of counsel claim unless he or she interim with due diligence in discovering the counsel's fraud or mistake.^fourteen

To exercise this, the alien must bear witness that he or she complied with the procedural requirements of Thing of Lozada, equally fix forth beneath.

Note that the time period begins running again once the immigrant meets with new counsel to discuss his file.^fifteen

2.6. The "Lozada" requirements for an ineffective assist of counsel claim

A motion to reopen based on ineffective assist of counsel must more often than not meet three procedural requirements prepare forth by the BIA. Under Lozada, the petitioner must:

Submit an affidavit explaining the agreement with former counsel regarding legal representation,
Present evidence that prior counsel has been informed of the allegations and given an opportunity to answer, and
Either:

- Evidence that a complaint against prior counsel was filed with the proper disciplinary authorities, or
- Explicate why no such complaint was filed.¹⁶

3. What evidence do I need to provide in support of my motion?

A motion to reopen must be supported by the new evidentiary fabric the immigrant wants to innovate. This volition usually exist in the form of affidavits and possibly official reports about changed conditions in the alien's home state.

The applicant must show that the previously unavailable material evidence could not have been discovered or presented at the quondam hearing.¹⁷

If necessary, the motion should also be accompanied by a completed application for relief (such as an asylum application).^eighteen

4. Can I be deported while my move is pending?

Yes. Filing a move to reopen does not change the underlying deportation or removal order.¹⁹

However, a removal order will exist automatically stayed past a motion to reopen if the removal order was fabricated "in absentia" – pregnant the defendant was not present at the hearing due to being in custody.²⁰

And dissimilar in the past, a motion to reopen no longer automatically terminates when the petitioner is removed from the country.²¹

Additionally, people petitioning to stay in the country on humanitarian grounds (such every bit dilapidated spouses and children) may also authorize to accept their removal orders stayed.

Your California immigration lawyer can help you lot decide whether you authorize for an exception.

iv.1. What if I left the country past voluntary difference?

If the petitioner files a move to reopen and is yet in the state afterward the expiration of a voluntary departure menstruum, the move to reopen will be denied based on petitioner's failure to depart.²²

This is known every bit the "Fugitive Disentitlement Doctrine." The thought is that by refusing to exit when promised, the alien has given upward the right to reopen his case.

v. What happens if my motion to reopen is granted?

If the immigration courts grants a move to reopen the immigrant will be immune to present the new evidence.

The immigration judge will then rule on the case based on the new evidence presented.

6. Can I appeal or try once more if my movement is denied?

Aye. While in general, an conflicting can only file one motion to reopen²³ there are exceptions (peculiarly in cases of "in absentia" removal).

But denial of motions to reopen can be appealed to the Board of Immigration Appeals (BIA) as can most underlying cases. And if the BIA denies the appeal, the matter can unremarkably exist further appealed to the United states Courtroom of Appeals for the Ninth Excursion.

Just as with motions to reopen, at that place is a limited time catamenia in which an clearing courtroom example can be appealed.

People whose petitions have been denied or cases take been lost should contact a lawyer immediately to keep from losing their right to appeal.

Demand help reopening your immigration case? Call us…

If you or someone yous know has been denied relief in immigration court, nosotros invite you to contact the states for a costless consultation.

Our caring Los Angeles, California immigration attorneys know many ways to get you a second gamble at relief from displacement or inadmissibility due to "inadmissible crimes".

Phone call usa or fill out the form on this page to discuss your case with a knowledgeable lawyer.

But don't delay – you have just 90 days from the concluding gild in your case to ask the clearing court to reopen it.

Legal references:

See viii CFR § 1003.23 — Reopening or Reconsideration earlier the Immigration Court.
viii USC § 1229a (c)(7).
8 USC 1229a (c)(7)(C)(i).
See 8 C.F.R. § 1003.2(c)(3) (referring to 8 CFR § 1003.23(b)(iv)(ii) and (b)(4)(iii)(A)(two)).
Run into viii C.F.R. § 1003.2(c)(3)(iii); Bolshakov v. INS, 133 F.3d 1279 (9th Cir. 1998).
8 USC § 1229a (c)(vii)(C)(4).
8 USC § 1229a (b)(5)(C)(i).
8 U.s.a.C. § 1229a (e)(i).
See 8 U.S.C. § 1229a(b)(five)(C)(i); eight C.F.R. § 1003.23(b)(4)(ii) and (b)(four)(iii)(A)(1); Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003).
Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003). See also Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011); Fajardo v. INS, 300 F.3d 1018 (ninth Cir. 2002).
Socop-Gonzalez five. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc).
See, e.chiliad., Iturribarria, endnote 10.
See Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005); Salazar-Gonzalez 5. Lynch, 798 F.3d 917 (9th Cir. 2015).
Luna v. Holder, 659 F.3d 753 (9th Cir. 2011).
See Iturribarria, endnote 10; Mejia-Hernandez, endnote 10.
Thing of Lozada, 19 I. (BIA 1988).
See INS v. Doherty, 502 U.S. 314 (1992).
Run across 8 U.s.a.C. § 1229a(c)(seven)(B); 8 CFR § 1003.2(c)(1); INS v. Wang, 450 U.Southward. 139, 143 (1981) (per curiam).
See Pablo v. INS, 72 F.3d 110 (9th Cir. 1995).
See viii CFR § 1003.23(b)(iv)(ii); 8 CFR § 1003.2(f).
Run into ReyesTorres v. Holder, 645 F.3d 1073 (9th Cir. 2011).
Run across Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir. 2008).
See 8 UsC. § 1229a(c)(seven)(A) and (c)(vi)(A); 8 C.F.R. § 1003.two(c)(2) and (b)(2); Shin 5. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).

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Source: https://www.shouselaw.com/ca/immigration/appeals/motion-to-reopen/