Administrative and Judicial Relief

Motions to Reopen or Reconsider – An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA.  The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing.  A motion to reconsider seeks a reexamination of the decision based on alleged errors of law and facts.  Unless an exception applies, a party may file only one motion to reopen and one motion to reconsider.  With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be filed within 30 days of the date of the final order.  The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered by the Immigration Judge, the BIA, DHS, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).

Stay of Removal – A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion.  Depending on the situation, a stay of removal may be automatic or discretionary.  An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an appeal is pending before the BIA, or while a case is before the BIA by way of certification.  Except in cases involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision made in a case.  Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a removal order.  Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA, Immigration Judge, DHS, or a Federal court.  Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration Court, the BIA, or an appeal to a Federal Circuit Court.

Administrative Appeal – The BIA is the highest administrative body with the authority to interpret Federal immigration laws.  The BIA has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of DHS.  Either an alien or DHS may appeal a decision from the Immigration Judge.  In deciding cases, the BIA can dismiss or sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision.  A precedent decision by the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision.  With respect to the filing deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the date it was issued by the court.  

Judicial Review – The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA.  However, subsequent laws have substantially restricted judicial review of removal orders.  An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the Court of Appeals.  The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and interpretations that, in many circumstances, are not clearly resolved.  For an understanding of how judicial review might apply in a specific case, qualified legal counsel should be consulted.