Motion to reconsider and to reopen

by Atty. Emmanuel Samonte Tipon 

After an unfavorable decision by an Immigration Judge or the Board of Immigration Appeals, most aliens give up. They do not want to appeal. Not so some of our clients who never give up, no matter what the cost. As the poet James Henry Leigh Hunt wrote “May their tribe increase.”

But appeal is not the only weapon available to an intrepid lawyer who wants to help his client overturn what is perceived as an unjust decision. There are weapons like motion for reconsideration and motion to reopen.

MOTION FOR RECONSIDERATION

A motion for reconsideration seeks to change the adjudicator’s decision on the ground that there are errors of fact or law. For example, an Immigration Judge denied an immigrant’s motion for continuance (postponement) to a date until after the elections in order to await President Obama’s declared intention in September 2014 to give deferred action to millions of aliens unlawfully in the country. The Judge reasoned that the ground for continuance was “speculative” and ordered the immigrant removed. The Board agreed with the Immigration Judge.

Instead of filing a petition for review with the Court of Appeals, my co-counsel and I on the immigrant’s behalf sought reconsideration of the Board’s decision. We contended that the President’s announcement was not “speculative”. His announcement that he would initiate immigration reforms by executive action after the election was couched in language that was certain – “I’m going to act because it’s the right thing for the country,” “I want to be very clear. My intention is, in the absence of action by Congress, I’m going to do what I can do within the legal constraints of my office.” Therefore it was arbitrary for the IJ and the Board to have labeled as “speculative” the President’s September 2014 declaration.

The best evidence that the President’s September 2014 declaration was not “speculative” was the President’s announcement on November 20, 2014 of certain executive actions on immigration. One of the initiatives was “Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010 to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program (DAPA) provided they pass required background checks.” The immigrant met these requirements. Stay of removal instead of pursuing removal in a case is one of the discretionary enforcement decisions announced by the Secretary of the Department of Homeland Security.

The regulations provide that continuance may be granted for “good cause” shown by the alien. If the filing of an I-130 immigrant visa petition by an immigrant’s spouse is considered a “good cause” to continue the removal proceedings of the immigrant for whom the petition was filed, the filing of a DAPA application should also be considered a “good cause”. A judge cannot be permitted, by arbitrarily denying continuance, to deprive an alien from establishing a ground for eligibility to remain in this country. Therefore, the decision was not in accordance with law.

MOTION TO REOPEN

A motion to reopen seeks to present new facts that will be proven if a new hearing is held which is material and was not available and could not have been discovered or presented at the former hearing. For example, in the case discussed above, the immigrant sought to reopen the proceedings so he could submit a copy of his application for deferred action under the President’s Deferred Action for Parental Accountability (DAPA) program which he had filed with the Department of Homeland Security. This evidence is material because it would change the result of the removal proceeding in that it would be stayed pending the adjudication of the DAPA application. This evidence was not available and could not have been discovered or presented at the former hearing because at that time there was no DAPA program yet.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to “The Tipon Report”, the most witty, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to this article.)