Our Services

Motions

DHS Motions

Motion to Invalidate or Reconsider a Credible Fear Determination by an Asylum Office

The regulations allow for reconsideration of a negative credible fear determination once that determination has been affirmed by an Immigration Judge.  Reconsideration may be warranted for a variety of reasons:

  • • Your client’s due process right to a full and fair hearing was violated. This may happen where the asylum office failed to provide the noncitizen with an opportunity to consult with a person of his choosing before the interview or the Asylum Officer relied on evidence in making the credible fear determination that was not disclosed to the noncitizen before or during the interview.  Some questions to consider to determine whether to challenge the determination are
    • ◊ Did the noncitizen have knowledge of his right to consult with a person of his choosing before the interview?
    • ◊ Was the noncitizen given an opportunity to exercise that right?
    • ◊ Did the noncitizen indicate that he did not want to proceed with the interview without speaking to a person of his choosing?” The answers to these questions will guide whether the determination should be challenged on due process grounds.
    • ◊ Did the Asylum Officer confront the noncitizen with “reports” or “information” regarding internal relocation or country conditions? If so, were these reports made available to the noncitizen before or during the interview?  If the reports are merely cited in the determination itself, this does not satisfy due process requirements.
  • • There is new evidence that your client did not have at the time of the interview. Does your client now have evidence that she did not have during the interview, such as affidavits, membership cards, medical records, expert attestations, country condition information?  The regulations provide for the submission of evidence in support of a credible fear determination.  Previously unavailable evidence supports a request for reconsideration.
  • • Was your client pro se before the Asylum Officer? This is similar to the due process violation discussed above.  The regulations also require that the noncitizen be given an opportunity to consult with a person of his choosing.  Thus, failure to provide this opportunity is both a due process violation and a violation of regulatory requirements.  Both violations warrant either invalidations of the first credible fear determination or reconsideration.
  • • The Asylum Officer improperly created an adversarial atmosphere. The regulations also require that the interview be nonadversarial.  If the Asylum Officer confronted the noncitizen about country condition information or argues with the noncitizen about the ability to relocate, than the nonadversarial requirement is compromised and the determination should be challenged.
  • • The Asylum Officer applied the wrong legal standard in making the determination. The regulations require the determination to be measured by the standard of a “significant possibility”.  This standard is lower than the “reasonable possibility” standard for asylum.  Application of any standard higher than a “significant possibility” warrants reconsideration.

Often times credible fear determinations involve several of the above noted issues.  IMMLAC is available to review your determination to analyze whether it should be challenged.  IMMLAC is also available to write the motion to invalidate or reconsider the determination.  IMMLAC’s preparation of such motions includes review of the credible fear interview notes, any additional evidence you may have, IMMLAC’s own research into country background evidence and any needed legal research.

USCIS Field Office or Service Center Decisions

Unfavorable decisions by a U.S. Citizenship and Immigration Services (“USICS”) field office or service center can be reopened or reconsidered.  Motions to reopen seek a new decision based on previously unavailable evidence or a change in circumstances.  Motions to reconsider, on the other hand, requests that the adjudicator reconsider its decision based on a misapplication of law or policy or an aspect of the case that was overlooked.

IMMLAC is available to review your decision to determine if a motion to reopen or reconsider is appropriate.  IMMLAC is also available to write the motion for you.  Drafting of the motion includes review of the USCIS decision, all relevant evidence, and legal research. IMMLAC may request you gather additional evidence, such as affidavits, depending on the circumstances of the case.

AAO Decision

Unfavorable decisions by the Administrative Appeals Office (“AAO”) may be reopened or reconsidered.  Motions to reopen seek a new decision based on previously unavailable evidence or a change in circumstances.  Motions to reconsider, on the other hand, requests that the adjudicator reconsider its decision based on a misapplication of law or policy or an aspect of the case that was overlooked.

IMMLAC is available to review your decision to determine if a motion to reopen or reconsider is appropriate.  IMMLAC is also available to write the motion for you.  Drafting of the motion includes review of the USCIS decision, all relevant evidence, and legal research. IMMLAC may request you gather additional evidence, such as affidavits, depending on the circumstances of the case.

For more information about motions to reopen or reconsider before the AAO, visit https://www.uscis.gov/tools/practice-manual/chapter-4-motions-reopen-and-reconsider.

IJ and BIA Motions

Motions practice before Immigration Judges (“IJ”) and the Board of Immigration Appeals (“BIA”) covers a wide range of issues, including motions to reopen and motions to reconsider.  Motions to reopen seek a new decision based on previously unavailable evidence or a change in circumstances.  Motions to reconsider, on the other hand, requests that the adjudicator reconsider its decision based on a misapplication of law or policy or an aspect of the case that was overlooked.

You may need a motion to reopen and rescind an in absentia order, or perhaps, you just need a motion to reopen the in absentia hearing to seek new relief but do not need to seek rescission of the in absentia order.  A motion to reopen can also be filed based on ineffective assistance of counsel or a change in your client’s circumstances.  You can also file a motion to stay removal upon filing a Notice of Appeal of an Immigration Judge unfavorable decision.

Most motions to reopen or reconsider before IJs and the BIA are subject to time and number limitations.  There are several exceptions to the time and number limits including, a motion to reopen and rescind an in absentia order based on a lack of notice, motions to reopen sua sponte, or a motion that DHS agrees to join.

Regarding joint motions to reopen, IMMLAC realizes that under the current administration these are very hard to come by, but IMMLAC is more than happy to discuss the possibility of pursuing this form of relief and preparing a JMTR package for you.