If you were ordered deported (or “removed”) from the U.S. by an Immigration Judge (IJ), it may feel like the end of the road. However, there may be a chance to reopen your case to apply for asylum. Not everyone can do this, but it might be an option for you if no one explained to you that you could apply for asylum or if your eligibility for asylum has changed. This article discusses how you can file a motion to reopen your case to apply for asylum.
Asylum is a form of relief from deportation that you can apply for during removal proceedings if you believe you may be persecuted based upon your race, religion, nationality, political opinion, or particular social group upon returning to your home country. In order to prevail in reopening your case to request asylum, you must ordinarily prove that:
So if you were never informed by the IJ or another immigration official during your removal hearing that you had the right to apply for asylum as a form of relief from deportation, then you can request to reopen your case to submit your application for asylum.
You can also request to reopen your case due to changes in circumstances affecting your eligibility for asylum. For example, if you did not meet the definition of an “asylee” at the time of your removal hearing, but you do now (perhaps due to changes in your country or in your own life), you have good cause to request to reopen your case so that you can apply for asylum.
If you state that you did not know about your right to apply for asylum in immigration court, keep in mind that the IJ and the government attorney will most likely check the record of proceedings in your removal case to see whether you were informed of the opportunity to submit asylum at any point.
The record includes any oral statements made at your immigration court hearings and copies of any documents such as Form I-589, Application for Asylum and Withholding of Removal or any other written explanation of the asylum process.
You can request to review a copy of your file at the immigration court (and to listen to the recorded hearings) to see whether these rights were explained to you at any point while you were in removal proceedings. You could also argue that you didn’t (or couldn’t) understand your right to apply for asylum because of issues such as a disability, not being given copies of documents in your native language, or some other compelling reason.
Under the law, a motion to reopen cannot be granted unless the IJ finds that there is “material evidence” (substantial proof applicable to your situation) that was not available at the time and could not have been discovered or presented during your removal hearing. (8 C.F.R. § 1003.23(b)(3)). You can also file a motion to reopen if you previously requested asylum and your request was denied if circumstances have changed since the last time you were in court.
In essence, you will attempt to convince the court that you didn’t apply during your removal proceedings because you didn’t qualify for asylum then, but you do now. Frequent examples of “changed circumstances” include recent political upheaval in your home country or recent changes in your own personal situation. You can find examples in Preparing Documents When Submitting Late Application for Asylum Application (After One Year).
While you will not submit your application for asylum with your motion, you should submit a written statement called an affidavit explaining why you are claiming asylum, why you are eligible for this relief, and why you did not request asylum the last time you saw the IJ. Additionally, you should submit any documents or evidence supporting your claim.
Anyone seeking to reopen a removal case should follow the instructions in Chapter 5 of the Executive Office for Immigration Review (EOIR) Practice Manual, which includes information how to file and format the motion and what documents you should attach.
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. However, with motions to reopen based on changed circumstances, you can explain that you did not submit this request in a timely manner due to these very circumstances. Motions to reopen in order to request asylum do not require a filing fee.
If you are able to convince Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) that you have good cause to reopen your case, you will have a much better chance of not only being able to reopen removal proceedings but also winning your asylum case.
The IJ will most likely grant the joint motion because the government is agreeing to it. Additionally, it may signal that you have a strong asylum case that merits approval. You can do this by contacting the immigration agency with jurisdiction over your case and submitting much of the same information described above to support your request.