Receiving an order of deportation from U.S. immigration officials can be a devastating event if you are fighting to stay in the United States. However, such an order does not necessarily mean the end. Depending on the particular circumstances in your case, there are ways to challenge, appeal, or otherwise stay a deportation order. Here, we will look at the three primary mechanisms for challenging a deportation order.
Above all else, you should comply with an immigration court order if you have exhausted any and all possible remedies in your case. There are severe consequences should you fail to follow an order given by immigration officials. Contact an immigration attorney if you have questions on your case.
In certain situations, you may be able to ask the immigration judge in your proceedings to reopen your case and review a deportation order. This is done through a Motion to Reopen. This motion consists of a brief or writing to the judge explaining why you believe your case should be reconsidered, along with any supportive law, facts, and evidence that might persuade the court. The immigration courts generally recognize two situations where a motion to reopen may be considered, including:
If you received a deportation order in absentia, the court may consider a motion to reopen your case. In absentia means that the court made a decision in your case without your presence during the proceedings. In this situation, you can make a motion to the court to reopen your case on the grounds that you did not take part in your proceedings and were unable to challenge the charges of removability against you. However, you must be able to show the court that you were unable to attend your original proceedings because of “exceptional circumstances.”
Immigration law and regulations specifically define “exceptional circumstances” as serious events beyond your control. The law provides specific examples:
You may also file a motion to reopen if you never received notice of your immigration proceedings or if you were in federal or state custody at the time and had no control in attending your immigration proceedings. Ultimately, you must have an extremely compelling reason as to why you were unable to attend the original immigration proceedings, along with strong evidence for that reason.
For in absentia orders, immigration regulations set a 180-day deadline period from the date of the original in absentia order in which you can file a motion to reopen your case. Motions to reopen in absentia orders will stay, or pause, your deportation while the motion is being considered by the court. You should contact an immigration attorney if you need assistance with your motion.
After you have received a deportation order, you may discover important facts or evidence to which you did not have access in your original proceedings, or you may learn that conditions in your home country have changed in such a way that you have a genuine fear of returning. The immigration courts allow for motions to reopen in both such situations.
If you have discovered facts or evidence relevant to your case that was not available to you or the court during your original proceedings, you can file a motion to reopen presenting such evidence to the court. For this type of motion, you have a 90-day deadline from the date of your deportation order in which to file. The new facts of evidence must be material to your case. In other words, any new facts or evidence you have discovered must be genuinely relevant to your original deportation order or provide some form of relief of which you were previously unaware.
If you are seeking relief under the Cancellation of Removal process based on new facts or evidence, you must include your complete application for cancellation of removal with your motion to reopen. In addition, motions to reopen on new facts or evidence do not stay your deportation order! You must request that the court or immigration officials stay your deportation (put it on hold) while the court considers your motion.
After you receive a deportation order, you may learn that conditions in your home country have changed since you came to the United States. You might genuinely fear for your life and freedom if you have to return to your country. You can file a motion to reopen your case based on this new information if you wish to apply for asylum or withholding of removal out of fear of returning to your country of origin.
Many of the requirements for a motion to reopen based on new facts or evidence also apply here. Your motion to reopen must be based on facts or evidence that is material, was not previously available at your original proceedings, and was evidence that could not earlier be discovered or presented. As before, this type of motion does not stay (put a hold on) your deportation order, but you may request that immigration officials stay your deportation while the motion is being considered.
You may feel that the immigration judge in your case came to an incorrect decision based on a misinterpretation of the immigration laws or on new developments in the law. In this situation, you can file a Motion to Reconsider with the immigration court. Immigration regulations provide a 30-day deadline from the date of your deportation order in which you can file a motion to reconsider. This motion must detail why the immigration judge in your case applied the law incorrectly and came to incorrect conclusions on the facts and evidence in your case.
There are certain situations where a motion to reconsider may be better (or worse) than a motion to reopen or than filing an appeal directly to the Board of Immigration Appeals. Contact an immigration attorney if you have questions on motions to reconsider.
The Board of Immigration Appeals, or BIA, acts as the reviewing court for all lower immigration court decisions. If you feel that the immigration judge in your case came to an incorrect decision due to a misinterpretation or misapplication of the law or because of incorrect conclusions about the facts and evidence, you can appeal the judge’s decision to the BIA. You will have 30 days from the date of the immigration judge’s deportation order in which you can file an appeal with the BIA.
If you have appealed directly from the immigration judge’s decision in your case, your deportation will be put on hold automatically, so long as you have filed your appeal within the 30-day deadline. However, if you are appealing a judge’s decision on your earlier motion to reopen or motion to reconsider, you must also ask for a stay of your deportation from either the judge or the BIA while your appeal is considered.
If the BIA does not rule in your favor, you can seek a further appeal with the federal circuit court of appeals for your U.S. area and, ultimately, the U.S. Supreme Court. Keep in mind that both the federal circuit courts and the Supreme Court can decline to hear your appeal, and that pursuing such appeals be expensive.
Deportation Orders are not necessarily final or unchallengeable. If you have a deportation case, contact an immigration attorney who can help you navigate these possibilities.