After years of struggle and hope for legal status, sometimes immigrants leave the United States without any hope of ever returning.  However, recent case law may provide a deported immigrant that lost hope of actually returning to the United States.

In the past, statutes and case law limited the ability to file a Motion to Reopen for non-citizens who were physically present in the U.S.  Passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, “IIRIRA” opened the door to the possibility of a non-citizen living abroad filing a Motion to Reopen.  After years of contradictory rulings from different U.S. Courts of Appeals, a consensus seems to have been reached.

All the U.S. Courts of Appeals that have addressed this particular issue have come to the conclusion that a non-citizen who lives out of the United States have the right to file a motion to reopen their immigration proceedings in the U.S.  In Contreras-Bocanegra, the United States Court of Appeals in the Tenth Circuit held that a non-citizen was not barred from pursuing their case after departure or deportation.  This decision is particularly significant because the Tenth Circuit was one of the last U.S. Court of Appeals to join the majority.  The Tenth Circuit stated, “we now join the Third, Fourth, and Ninth Circuits in invalidating the post-departure bar” to file a Motion to Reopen.

What does this mean?  Now, one may be able to fight their case by filing a Motion to Reopen removal proceedings, even if the alien now resides outside of the United States!  So, whether an alien is in the United States or not, there may be hope to reopen the case and fight to return to the U.S. legally. 

There are many different grounds upon which one can bring a Motion to Reopen.  These include, but are not limited to: 1) abuse of discretion on the part of the immigration judge, 2) changed circumstances occurring since the adjudication of an application for relief, 3) ineffective assistance of counsel; or 4) lack of notice of the proceedings resulting in an order of deportation.

An applicant for a green card may get an unpleasant surprise at the consular interview when he discovers that he has an existing deportation order. The order may have resulted from a denied application for relief (either adjustment of status or asylum, as an example).  The disheartened intending immigrant left the United States and returned home, thinking the matter was at an end.  Unbeknownst to him, however, the file was forwarded to the Immigration Court where a hearing was held in his absence. That deportation order acts as a block preventing a favorable decision on the green card application.  However, because he did not receive the notice of the hearing, he may now be able to reopen his case.  This used to only be true if the immigrant were still in the United States.  Now, one can file from outside as well. 

Changed circumstances may occur after one has been removed based upon a criminal conviction.  Post conviction relief may render the immigrant no longer subject to removal.  Now an alien may file a motion to reopen, even from outside the United States, in order to have the removal order rescinded.   

This is by no means an extensive list of grounds upon which a motion may be brought. Some motions to reopen are also restricted as to time and number.  However, if you or someone you love has departed the United States, it is essential to consult an experienced and knowledgeable immigration attorney concerning eligibility of filing a motion to reopen.   

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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.

Robert L. Reeves is a licensed California attorney and is certified by the California State Bar as an Immigration and Nationality Law Specialist. He has been specializing in immigration law for over 30 years and is admitted to practice before the US Supreme Court, the US Court of Appeals for the Ninth Circuit, several US District Courts and California State Courts. He is the Managing Partner of Reeves & Associates with offices located in Pasadena, San Francisco, Las Vegas and Makati City – Unit 507 Tower One Ayala Triangle, also known as the Philippine Stock Exchange Plaza Makati , 6767 Ayala Avenue, Makati City, Philippines 1226 (corner Paseo de Roxas, beside Ninoy Aquino Monument). Philippine Contact Numbers: 759-6777 or Toll Free: 1-800-10-773-3837 E-mail: immigration@rreeves.com Website: www.rreeves.com