If you have received a final deportation order, you may wonder whether you can get another chance to plead your case in immigration court. One way is to file an appeal—but this involves showing that the judge made a mistake. What if there was no real mistake, but you simply feel there's something the judge needs to know or consider now, but didn't? Keep reading for a discussion about how you can file a motion to reopen your case to due to exceptional circumstances.
You can request that the immigration court reopen your case for a number of reasons. For example, if your immigration attorney gave you bad advice that negatively affected your case, you might be able to reopen your case due to ineffective assistance of counsel. If you were not eligible for asylum before but you are now, you can also request to reopen your case to file an asylum application.
Another way to reopen your deportation case is to prove that “exceptional circumstances” were the reason why you could not convincingly make your case in immigration court.
You can provide proof of exceptional circumstances in order to explain why you did not attend your hearing in immigration court the last time or why you were unable to provide a convincing case in court.
If you did not attend your hearing, the immigration judge (IJ) most likely entered an in absentia order of removal (a deportation order in your absence). Many people contesting in absentia orders of removal attempt to reopen their case in order to request some form of relief from deportation, such as asylum or cancellation of removal. In order to do so, you must submit proof that you did not receive notice of the hearing or evidence of exceptional circumstances regarding why did not appear in court.
Additionally, “exceptional circumstances” may be used to explain why you failed to convince the judge that you qualify for immigration relief, even if you did appear in court. For example, if you were under psychological impairment at the time of the hearing (due to a car accident or other traumatic event) you may argue that you weren’t able to recall significant details when testifying.
Common examples of exceptional circumstances include:
It's best to contact an experienced immigration attorney to help you file your motion to reopen. However, if you are proceeding without an attorney, follow the instructions in Chapter 5 of the Executive Office for Immigration Review (EOIR) Practice Manual, which includes information about the proper content and formatting of a motion to reopen.
You should try to file the motion to reopen within 90 days of your final order of removal or, if you have an in absentia order of removal, within 180 days. In cases of exceptional circumstances, you can explain that you did not submit this request in a timely manner due to these circumstances. You must also include a filing fee with your motion ($110, as of early 2017).
It's wise to submit an affidavit along with your motion clearly, explaining what exceptional circumstances caused you to miss your hearing date or affected you while in court. Supply details, and back these up with documents from neutral third parties.
For example, if you missed the hearing date due to illness, you should explain your condition in the affidavit and also submit medical records showing that you were unable to attend the court hearing and unable to contact the court in order to request a continuance (or postponement). If you were unconscious or otherwise incapacitated, submit a doctor’s note or medical report on official letterhead clearly showing the dates you were unable to communicate.
If a family member died on the date of the hearing (or soon thereafter), give details about the impact on you in your affidavit, and provide a death certificate showing the date of death.
You should also explain what attempts (if any) you made to contact the immigration court after you again became able to proceed with your case. So, if you missed your hearing due to a car accident on the way to court, it will help if you have evidence that you attempted to call or visit the court either that day or the next.
You should try to contact Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) to discuss the possibility of filing a joint motion to reopen. For example, if you present convincing evidence of health problems or other exceptional circumstances, the government agency might agree to reopen the case. The IJ will likely grant the motion since both parties are in agreement that that is the best course of action. You can contact the immigration agency that has jurisdiction over your case and submit evidence of the extraordinary circumstances you experienced.