Motions to Reopen and Motions to Reconsider
Dev B. Viswanath, Esq.
In this day and age of Covid 19, life gets more complicated when USCIS makes unfavorable decisions which maybe wrong actually. If a petitioner’s petition was denied and they do not want to file an appeal with a higher department (usually the Administrative Appeals Offices or the Board of Immigration Appeals), they may file a motion to reopen or a motion to reconsider. The petitioner may file a Form I-290B, Notice of Appeal or Motion, within 30 days of the denial or dismissal, or 33 days if the denial or dismissal decision was sent by mail.
Motion to Reconsider: A motion to reconsider should be filed when the petitioner thinks an immigration judge should reconsider their decision. The motion should state a reason to reconsider the original decision, list any errors of fact or law made in the prior decision, and include the necessary evidence or citations to legal authority.
A motion to reconsider is based on errors in law, fact or procedure the petitioner believes were made in their case. Some examples of what constitute an error of law or fact are exclusion of relevant evidence, a denial of legal rights, or a failure to apply precedential court or Board of Immigration Appeals (BIA) decisions to the facts of the petitioner’s case. If the motion is as a result of changes in the law, the petitioner should provide both the old law and the changes as documentary evidence.
Motion to Reopen: A motion to reopen should be filed when the petitioner believes their case should be looked at again because of new or changed facts. The motion should state new material facts that were not known or available at the time of the initial filing. The new facts should be accommodated with affidavits and/or other documentary evidence to support said facts.
The processing time for a motion is between three to six months. If the petitioner’s motion to reconsider or reopen is granted, the immigration services will decide the case again, taking into consideration the new law and facts it did not consider the first time. If the motion to reconsider or reopen is denied, the petitioner may appeal that decision. One may also do a motion to reopen and reconsider if there is law and new facts to consider. Even in a time of Covid 19, there are options available.