Motion to Reopen
Motion to Reopen, abbreviated as “MTR” (noun) – a legal writ moving a court or an agency to re-open the previously completed legal matter.A motion to reopen, if grated, vacates the prior order of removal. Nken v. Holder, 556 U.S. 418, 429n.1 (2009).
What law governs a motion to reopen“An alien seeking to reopen his removal proceedings has two options: (1) he can invoke the court's regulatory power to sua sponte reopen proceedings under either 8 C.F.R. § 1003.23(b) or 8 C.F.R. § 1003.2(a);or (2) he can invoke his statutory right to reopen proceedings under 8 U.S.C. § 1229a(c)(7).” Lugo-Resendez v. Lynch, 831 F. 3d 337 (5th Cir. 2016).
Basic requirements for a motion to reopen- New facts;
- Show prima facie for EOIR relief (unless in absentia);
- Proposed applications.
A motion to reopen is the one and only, unless the numeric bar does not apply.
A motion to reopen must be timely, even if filed post-deadline. Post-deadline is not untimely per se.
When a motion to reopen is timely?90 days after the final decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 CFR §1003.23(b)(1); Matter of Susma, 22 I&N Dec. 947 (BIA 1999) (discussing time restrictions on motions to reopen).
180 days after in absentia if exceptional circumstance prevented appearance. 8 U.S.C. § 1229a(c)(7)(C)(iii); 8 U.S.C. § 1229a(b)(5)(C)(i);
1 year, if based on VAWA. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III);
At any time, if after in absentia with non-receipt of the notice of hearing. 8 U.S.C. § 1229a(c)(7)(C)(iii); 8 U.S.C. § 1229a(b)(5)(C)(ii);
At any time, if country conditions (or personal circumstances in the 9th Cir.) changed and the MTR is to apply or re-apply for asylum/WOR based on changed country conditions. 8 U.S.C. § 1229a(c)(7)(C)(iii). (In the Ninth Circuit, on changed personal circumstances, if they make relevance to country conditions. Chandra v Holder, 751 F.3d 1034, 1036-37 (9th Cir. 2014))
At any time if the DHS joined in the MTR. 8 CFR §1003.23(b)(4)(iv), 8 C.F.R. § 1003.2(c)(3)(iii).
When equitably tolled. 8 CFR §1003.2(c )(2); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) [“If an alien qualifies for equitable tolling of the time and/or numerical limitations on a motion to reopen, the motion is treated as if it were the one the alien is statutorily entitled to file.” (Emphasis added)]; Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003) at 899-903, Rodriguez-Lariz v. I.N.S., 282 F.3d 1218, 1226 (9th Cir.2002), see also Garcia-Carias v. Holder, 697 F.3d (5th Cir. 2012) at 260 [“equitable tolling rendered the motion timely”]; Lugo-Resendez v. Lynch, 831 F. 3d 337 (5th Cir. 2016).
Sua sponte must not render deadlines nullity. Gregoire v. Holder, 635 F.3d 159 (5th Cir, 2011).
Credibility in the context of a motion to reopenThe BIA must accept as true the statements in an alien's affidavits unless they are "inherently unbelievable." Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir. 1986). The BIA errs if uses “falsus in uno, falsus in omnibus” principle on MTR. Yang v. Lynch, 12-71773, 5/19/16 (9th Cir. 2016)
Uncorroborated assertions in affidavits are valid evidence and must be accepted as true, unless “inherently unbelievable.” See Garcia-Arredondo v. Lynch, 14-71907, 5/27/16 (9th Cir. 2016); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.2007); Celis-Castelano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002); Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985); Limsico v. INS, 951, F.2d 210, 213 (9th Cir. 1991). The Ninth Circuit held, “ [w]e do not agree with the BIA’s assertion that the law requires independent corroboration of the facts contained in a supporting affidavit.” Maroufi v. INS, 772, F.2d 597, 600 (9th Cir. 1985) at 600.
Hearsay is admissible in immigration proceedings only as long as hearsay evidence is clear, unequivocal and convincing. Matter of Lam, Int. Dec. 2157 (BIA 1972); In re Aricio Pichardo-Sufren, Int. Dec. 3275 (BIA 1996). In the Ninth Circuit hearsay is only admissible if hearsay statement is probative and its admission is fundamentally fair. Abreu-Reyes v. INS, 292 F.3d 1029, 1032 (9th Cir 2002) (“the test for admissible hearsay in removal proceedings is whether the hearsay statement is probative and whether its admission is fundamentally fair.”)
Pursuant to federal regulations “…[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 CFR §208.16(c )(2).
Shouchen Yang v. Lynch, 822 F.3d 504, 508 (9th Cir. 2016) (“the BIA must…credit evidence supporting a motion to reopen unless that evidence is inherently unbelievable.”); Bhasin v. Gonzales, 423 F.3d 977, 986 (9th Cir. 2005) (courts cannot make “credibility determinations on motions to reopen”).
Where to file a motion to reopen?To where the case was last.
To the IJ if there was no BIA appeal or if the BIA remanded to the IJ.
To the BIA if the appeal is pending or was dismissed.
How to pay the motion fee?If filing with the IJ, must “fee in” at any USCIS office at the InfoPass appointment or just barge in. Assistant must have a letter, the MTR must look as ready for filing, EOIR-28 and G-28 better be there, $110 in the form of a money order or a cashier check. The front page of the MTR will be stamped, and the USCIS will issue the receipt with the client’s name on it.
If filing with the BIA, the original MTR filed with the BIA is accompanied with a check payable to U.S. Department of Homeland Security for $110.