If an immigration judge has ordered an immigrant removed, it might be possible to file a motion with the immigration judge or the Board of Immigration Appeals (BIA). I have filed many successful motions to reopen. There are many factors to consider when preparing a motion to reopen.
Depending on when the immigrant was placed in removal proceedings, when the order was issued, and which immigration court and judge issued the order. Another factor to consider is whether the immigrant was issued an order of removal “in absentia”, meaning, in their absence. It is important to get as much information about the underlying proceedings as possible before filing. This can be done by filing a freedom of information act request (FOIA) with the Department of Justice or Department of Homeland Security.
Furthermore, it is important to see if there has been a change in case law or the facts of the underlying case. In regards to an in absentia order, it is important to get as much information and evidence from the immigrant as to why they failed to attend the hearing. Many times, lack of notice is an issue or improper warnings given by the Department of Homeland Security.
The notice to appear or “charging document” is very important in terms for formulating an argument for a motion to reopen. The document should detail when the immigrant’s hearing will be and the charges the immigrant is facing as well as the legal justification for the factual allegations of the charges. The United State Supreme Court issued a very important decision the end of April, 2021 regarding the government’s (DHS’s) requirements of notice and that this notice cannot be used to deny the immigrant an opportunity to accrue the required time in the United States to apply for a form of relief called cancellation of removal.
I suggest you check out this blog to review the decision:
Court rules against government on technical question of notice requirement in immigration law