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 wittiest, 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.)
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