Why Would an Immigration Judge Reopen a Case After 20 Years?

In October 2012, an Immigration Judge (IJ) reopened my client’s exclusion proceedings more 20 years after another IJ ordered her exclusion from the US in 1991. In October 1999, she filed a motion to reopen (MTR) her proceedings through prior counsel but the IJ denied this motion in March 2000.

What could have prompted this reopening 2 decades after the final order and 10 years after the first attempt to reopen it failed? At what point does a case become final as to be beyond any remedy? When should an alien give up efforts in fighting his immigration case? Are immigration cases open-ended proceedings that could go on forever for as long as an alien is willing to fight?
These could be some of the questions bothering you at this point. If you’re an alien going through the immigration process, stories like my client’s might inspire you. If you’re an immigration officer or prosecutor, such stories might provoke frustrations with endless proceedings which aliens exploit to their full advantage. However, there’s no reason either for too much hand-wringing or jubilation because my client’s case is an exceptional one. Let’s quickly review the MTR process.

An MTR before the IJ or the Board of Immigration Appeals (BIA) must be filed within 90 days of the date of entry of the final order or decision. A party may only file one MTR based on new and material evidence that was not available and could not have been discovered or presented at an earlier stage in the proceedings. The purpose of these time and numerical limitations on MTRs is to expedite the judicial review process in immigration proceedings and to discourage dilatory appeals and motions.

However, there are exceptions to the time and numerical bars on MTRs, namely: (1) where the court exercises its sua sponte authority; (2) where the government agrees to reopen the case; (3) if the purpose of the MTR is to apply for asylum based on changed circumstances in the alien’s country of origin; (4) if the alien failed to appear at his hearing due to exceptional circumstances; (5)  if the alien failed to appear at his hearing due to lack of notice; (6) deadlines are equitably tolled when the alien was prevented from filing his MTR due to deception, fraud, or error if he acts with due diligence in discovering the deception, fraud or error; and (7) if the purpose of the MTR is to apply for a self-petition or special rule cancellation for a battered spouse, parent or child.

In my client’s case, we filed our MTR based on the fact that she never received her hearing notice. She was represented by counsel during her bond proceedings in 1991 but this counsel did not represent her in the exclusion hearing. The court assumed that this counsel also represented her in the exclusion hearing and mailed the notice to counsel but not to my client’s address. As a result, my client was never aware of her hearing until years later when she applied for another benefit. An alien who failed to appear at her hearing due to lack of notice may file an MTR at anytime. In this case, “anytime” meant 20 years later. The drafters of this rule might not have anticipated an MTR filed this late but it is within the realm of possibilities.

However, the IJ reopened my client’s case based on the court’s sua sponte power. It’s possible for a court to grant an MTR on a basis different from what the applicant argued. Reasonable minds can always disagree on a point of law. What is this sua sponte power? It refers to the power of the court to reopen a case on its own motion. In Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999), the BIA explained that the purpose of motion rules is to achieve finality in immigration case adjudications. Courts may not casually set aside procedural rules in the exercise of their independent powers. Courts will only intervene if they’re persuaded that a situation is truly exceptional. This power is not meant to cure filing defects or to circumvent the regulations.

It’s not advisable to seek sua sponte reopening when you have another basis for your MTR because the exercise of sua sponte power is rare. In my client’s case, we argued lack of notice, which has factual elements. However, the court found that our arguments and evidence were sufficient to show exceptional circumstances to merit a sua sponte reopening. It’s not exactly how we intended it to be but we’re grateful for the results. It always pays to have alternative arguments and comprehensive evidence to allow the court the flexibility to decide the case the way it sees fit.