While you may have a right to an appeal, there is no right to a motion either with the immigration court or the BIA. Motions, such as motions to reconsider, motions to reopen, or motions to remand, are ancillary requests and subject to a discretionary decision by the adjudicator.
Motions in the Immigration Courts
The most common type of motion filed with an immigration court is one to ask the court to rescind an in absentia removal (or deportation) order that was entered against someone when he or she failed to appear in court for a scheduled hearing. When someone has proper notice of hearing date, time, and place, he or she can be ordered removed in his or her absence.
If you have an in absentia deportation or removal order against you, then you must have that case reopened first before you can seek any discretionary relief. You should file your motion as soon as possible after discovery of the order, so it shows your initiative to try to fix your immigration situation.
If the immigration judge denies a motion to reopen the in absentia order, you may have the options to file either a motion to reconsider (with the immigration court) or an appeal with the BIA. Because a motion to reconsider or an appeal is time-sensitive, you should consult with an experienced immigration lawyer to discuss your options.
Other types of motions filed in immigration courts include motions to change venue (transfer a pending removal proceeding from one court to another), bond motions (to seek the release of a detained alien in removal proceedings), motions to terminate proceedings, etc.
Motions to the Service (USCIS)
While certain discretionary relief denials can be appealed to the BIA, others must go through the motions process with the USCIS. The most common motion to the USCIS are motions to reconsider and/or reopen a denial of an application for adjustment of status (Form I-485) and a denial of an application for employment authorization (Form I-765).
If your application for permanent resident status or employment authorization has been denied, you have a limited time to file a motion to reconsider and/or reopen with the USCIS. There is a filing fee to file the motion. You should consult with an experienced immigration attorney soon after you receive a denial to discuss your options.
Our Law Firm has helped lots of people with their appeals and motions, both with the BIA and with the USCIS. If you have been denied relief by an immigration judge, or if the USCIS has denied your application for a benefit, please contact us to discuss your options.
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