If you have lost your immigration court case, then two things have likely happened:
- You applied for relief in immigration court, and the judge denied your application. Typical forms of relief include asylum, adjustment of status, cancellation of removal for non-permanent residents, and cancellation of removal for permanent residents.
- The judge also found you to be deportable and issued a deportation order.
Alternatively, in some instances, you may have been given voluntary departure.
If the judge has denied your case and you have been ordered deported, it is important to know two things:
- You will not be deported right then and there; AND
- You have 30 days to appeal your case.
Appeals vs. Motion to Reopen
If you have lost your case in immigration court, typically, you’ll have two options: (1) File an appeal within 30 days of the issuance of the deportation order; (2) File a motion to reopen with the immigration judge.
Depending on the facts of your case, one or the other may be preferable.
Option One: File and Appeal
All appeals of the immigration court are heard by the Board of Immigration Appeals (BIA) in Falls Church, Virginia. You only have 30 days to file a notice of appeal, so this is an option upon which you must act quickly.
You file an appeal when you believe that the Immigration Judge has made a mistake in the law or in interpreting the facts of your case.
If you win your appeal, the BIA will tell the immigration judge that they made a mistake and direct him/her how to fix it.
Option Two: Motion to Reopen
Motions to reopen (MTR) may be filed with the same judge who made the original ruling in your case. If the judge issued your deportation order more than 30 days ago, then a motion to reopen may be your only option. In an MTR, you ask the judge to look at your case again in light of new evidence or facts.
A Motion to Reopen may be appropriate in the following scenarios:
- Ineffective Assistance of Counsel: Your attorney messed up, or you feel that you were represented ineffectively in your original case.
- New Facts: You are now married or have a child, and either of those facts now makes you eligible for some form of relief.
- Unavailable Facts or Evidence: There were facts or evidence unavailable at the time of the original hearing and could not have been discovered or presented at the initial hearing.
- Improper Service: You did not receive notice that you had a court date.
Here is an example: if a person fails to appear for their deportation hearing because they were in a car accident on the way to the hearing, the judge will issue an in absentia deportation order for failure to appear. That individual may be able to file a motion to reopen and present evidence as to why they were unable to appear for the hearing and have their case reopened.
Whether or not you file an appeal or a motion to reopen depends on why you lost your case and when you lost the case.
Typically, you only get one chance with either of these forms of relief, so consulting an experienced immigration attorney is essential.
The first step in filing an appeal or a motion to reopen is to request all your records from the court and have an immigration attorney review them. The immigration attorney will check the files to see if there was a mistake, omission, or ineffective assistance of counsel. If requesting your file will take a long time, you can always request a copy of your file from your previous attorney.
If you or a loved one has lost their case in immigration court, don’t hesitate to contact a knowledgeable and experienced immigration attorney. Our attorneys at Landerholm Immigration, APC, have extensive experience in cases involving motions to reopen, motions to reconsider, and appeals. Please feel free to call us at 510-488-1020 to see how we can help!