• A second chance with immigration?
  • August 28, 2017 | Author: Desmond P. FitzGerald
  • Law Firm: FitzGerald & Company, LLC - Boston Office
  • Dear friends:

    When we look back on our lives, irrespective of our age, there are always decisions and actions we would like to take back.

    In family relationships, at school, in sports and even at work, we are constantly given “second chances”, but the same is not true for legal proceedings. Generally, if a court rules against you and that ruling becomes final, there are few, if any, possibilities that you will be given a “second chance.”

    While “second chances” in court are rare, they are important and could be the difference between a life with your family here in the United States or exile and a lifetime of separation.

    The “second chances” that we will review are some of those granted by the Immigration Court (Motion to Reopen a case) and those granted by the state criminal courts in Massachusetts (Motion to Vacate a conviction).

    This newsletter will talk about motions to reopen an immigration case and we will follow it up with one about motions to vacate a criminal conviction.

    Motion to Reopen an Immigration Case

    An Immigration Court can grant a Motion to Reopen a case which legally cancels an Order of Deportation/Removal that was issued against a person. Once the Removal/Deportation order is cancelled, then the person may be eligible to obtain legal status to remain in the U.S.

    Order of Deportation- In Absentia

    It is not uncommon for a person who was entering the U.S. without a visa and was caught by immigration authorities, to be released by immigration and ordered to appear before an Immigration Court.

    Sometimes, that person does not appear before the court as they had been instructed to do, and as a result, an Order of Removal/Deportation is issued. The person is often unaware that the order was even issued. This order, called an In Absentia Order of Deportation, has dramatically serious consequences, including ineligibility for residency (green card) and a mandatory non-waivable 5 years outside the U.S.

    A Motion to Reopen, if granted, may remove the negative consequences of an In Absentia Order. In order to be granted, the person generally must demonstrate that the initial notices were improper, that there was an exceptional circumstance that prevented the person from going to court, or in the case of an asylum claim, that there has been a substantial change in circumstances.

    A client-life story

    Our office once assisted a client with a motion to reopen, who had been detained by Immigration officers at the border and after several days released to family members in Boston. He was told that they would send him a letter with his court date but the letter never arrived. After a period of time when he inquired about his case, and learned that an Order of Removal was issued by the Immigration Court, resulting in a warrant for his arrest and removal from the U.S.

    Our office filed a request for all of the records that the Immigration Court had in connection with his case and learned that the court had used an erroneous address, which is why our client never received the hearing notice. We were able to file a Motion to Reopen with evidence that he did not receive the hearing notice and his Order of Removal and the warrant were cancelled. As a result of the cancellation of the order, he was now free to explore pathways to legal status.

    If you are faced with an order of deportation due to errors in notification of a court hearing, an exceptional circumstance that prevented you from attending your immigration court hearing, or if you have an asylum claim because of a substantial change in your circumstances after you were issued the deportation order, we may be able to reopen your case so that you may pursue other immigration alternatives. To schedule a consultation with one of our immigration lawyers in Boston, MA, call at 617-303-2600 (ext. 0) or request the appointment online.


    Desmond P. FitzGerald,
    And the FitzGerald Law Company Team