January 25, 2012
The Department of Homeland Security (DHS) has made it very clear that it considers the apprehension and removal of certain undocumented immigrants, such as those with an outstanding order of deportation or removal, as a top agency priority. With this heightened level of danger, individuals with outstanding deportation or removal orders must take immediate steps in order to have any possibility of preventing their removal from the United States. Individuals in this situation may find that it is now an opportune time to seek relief from a prior removal order given the DHS’ attitude of allowing prosecutorial discretion, especially if an individual has strong equities and the only issue is the prior removal or deportation order.
As background, any individual that has been placed in deportation or removal proceedings before an Immigration Judge may only have their immigration matter reviewed by the Immigration Judge. The US Citizenship and Immigration Service (CIS) no longer has jurisdiction to review any applications to obtain legal residency, even if a person later marries a United States citizen. Therefore, if an individual has already either been ordered deported, removed or granted voluntary departure, and no appeal is currently pending, an individual must file a Motion to Reopen the deportation or removal court proceedings in order to acquire lawful residency to the United States.
Motions to Reopen, however, are governed by strict filing deadlines. Should an individual fail to file the Motion to Reopen within the required time period, it is very difficult to have a successful Motion to Reopen. Generally, an individual is granted 90 days to file a Motion to Reopen. If an order of removal was entered in absentia (the individual did not appear for the court hearing), an individual generally has 180 days to file a Motion to Reopen if the lack of appearance is due to exceptional circumstances or there is no deadline if the person never received notification of the court hearing. These time periods are extended for only exceptionally unusual circumstances, such as if the individual was ineffectively assisted by an attorney or, more commonly, an unlicensed paralegal.
For individuals who do not qualify for a Motion to Reopen, individuals may seek the cooperation of the DHS in submitting a Joint Motion to Reopen. A Joint Motion to Reopen is much more likely to be granted by a judge as it shows that both the DHS and the immigrant are willing to forego the time restrictions.
In determining whether the DHS will agree to the reopening of a removal case through a Joint Motion to Reopen, the DHS will look at certain discretionary factors. Examples of such factors are as follows: (1) the hardship to the immigrant and/or his United States citizen or lawful permanent resident family members if the immigrant were required to procure a visa in the individual’s foreign country; (2) the immigrant’s criminal history, if any; (3) the number and severity of the immigration violations; (4) whether the immigrant has cooperated with, or his presence in the United States is desired for, a criminal or civil investigation or prosecution conducted by any law enforcement agency; and (5) whether the immigrant’s removal is consistent with DHS objectives.
The potential for the DHS to agree to a Joint Motion to Reopen has become greater due to recent policy changes made by the DHS office of trial attorneys in assessing an immigrant’s request for a Joint Motion to Reopen. Greater opportunities are now available due to increased accessibility to the DHS trial attorneys in discussing the merits of an individuals request and willingness to exercise their prosecutorial discretion; however, the risks are also greater if the request is denied as actions by the DHS to enforce the deportation order will likely result.
The ability to reopen a deportation or removal proceeding is crucial as it is the only way for an individual with a prior deportation order to legalize status and prevent their eventual removal from the US. Due to the technicalities, difficulties, and risks associated with a Motion to Reopen and Joint Motion to Reopen, it is essential that an individual is represented by counsel that is intimately familiar with the various complex requirements to effectively advocate on behalf of the immigrant.