Written by attorney Linda Yin Liang

Motion to Reopen and Motion to Consider

My petition is denied, is there anything I can do? Many clients ask us this question. It is a right question to ask because the answer will lead to a solution. It is the fact that many fraudulent immigration petitions are approved without difficulty, unfortunately many truthful petitions are denied. Understandably, the denials leave the petitioners dumb-founded and desperate. Many of them regret for preparing the petition themselves or simply get angry with USCIS officers. The response is: hold the anger because the game is not over yet. USCIS is led by Board of Immigration. The petitioner may file motion to reopen/reconsider before the Board, which will likely turn the decision around. There is difference between motion to reopen and motion to reconsider. If a party has new facts after the decision is made, the facts don’t exist before the decision and the facts are material to the petition, the party should consider filing motion to reopen within 30 days. If a party thinks the officer, in making decision, applies a wrong law or ignores a material fact of the case, the party should file motion to reconsider for the board to correct the error the officer allegedly made. A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority. Like motion to reopen, a motion to reconsider a decision must be filed with the Board within 30 days. A party may file only one motion to reconsider any given decision and may not seek reconsideration of a decision denying a previous motion to reconsider. A party may file only one motion to reopen deportation or exclusion proceedings and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.

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