Post-judgment Remedies in Immigration Cases

Once an alien has been issued an order of deportation, removal or exclusion, all hope of entering or remaining in the Unites States is not lost. There are several avenues of administrative relief available including requests for waiver, administrative appeals, motions to reopen, motions to reconsider, and to a limited extent, judicial review. This article discusses some of those avenues.

Waivers of Inadmissibility

Although the grounds of inadmissibility are comprehensive, the law permits waivers of those grounds in most circumstances. Waivers allow aliens to enter or remain in the United States and may be authorized by the Attorney General, immigration courts, the Board of Immigration Appeals (BIA) and the Secretary of Homeland Security. Waivers are discussed in a separate article.

Administrative Appeals

An alien subject to an order of removal issued by an immigration judge (IJ) has a right to appeal the decision to the BIA. The alien has 30 days from the date of the IJ's decision to file a notice of appeal with the BIA. The filing deadline may be extended only for exceptional circumstances such as serious illness or death of an immediate family member.

In reviewing an appeal, the BIA may take the following actions:

  • Dismiss the appeal
  • Sustain the appeal in favor of the alien
  • Remand the case to the IJ for further proceedings

If the BIA sustains an appeal, the relief granted to the alien will not become effective until all background and security checks are completed.

The BIA also has authority to affirm (approve) the IJ's decision without rendering an opinion. This summary affirmance constitutes a decision on the merits of the appeal and requires the BIA to determine:

  • That the IJ's decision is correct
  • That any errors are harmless or nonmaterial
  • That the issues are controlled by existing precedent or do not warrant a written opinion

An affirmance without opinion is not authorized if there is a need to:

  • Settle inconsistent decisions between IJs
  • Establish precedent
  • Review IJ decisions that are contrary to law or precedent
  • Resolve a case or controversy of national importance
  • Review clearly erroneous factual determinations

Motion to Reopen

An alien or the government may file a motion to reopen a removal case if there are new facts or law or there are certain circumstances that might change the result of the case. The motion must be filed within 90 days of the entry of the removal order. Some exceptions to the filing deadline include:

  • The motion is used to apply for asylum or a restriction on removal
  • The motion is based on changed conditions in the country of nationality or the country to which removal was directed
  • Material evidence was not available at the removal proceeding and could not have been discovered or presented at the removal proceeding
  • The motion is a joint motion by the alien and the government
  • The alien was absent during the removal proceeding and the alien can show that the absence was due to serious illness, the death of an immediate family member or the failure to receive sufficient notice of the removal proceeding

Motion to Reconsider

A motion to reconsider a removal order may be filed by the alien or by the BIA on its own motion on the ground that the IJ or BIA made an error of law or fact in issuing the previous order. The motion must be filed with the BIA within 30 days of the final administrative order. No exception to the filing deadline is permitted for asylum cases or in absentia orders.

A motion to reconsider is not permitted if its purpose is to challenge the decision to issue an affirmance without opinion or to decide the case without a panel of three BIA members.

Motion to Stay Removal

The filing of a motion to reopen or to reconsider does not result in an automatic stay of the removal order unless the removal order was issued in absentia. However, an IJ, the BIA and the Secretary of Homeland Security have discretionary authority to stay (temporarily suspend) removal until a final decision is made on the motion to reopen or reconsider.

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