Category: Time and Number Limitations on Motion to Reopen

BIA Rules that Time and Number Limitations do Not Apply to Motions to Reopen to Apply for Asylum

In a decision issued last week, the Board of Immigration Appeals ruled that an alien trying to reopen removal proceedings to apply for asylum does not have to first rescind the removal order.  In Matter of J-G, 26 I&N Dec. 161 (BIA 2013), an alien moved several times to reopen his removal proceedings arguing that his in absentia order should be rescinded because of changed country conditions. The Immigration Judge had denied all of these motions arguing that they were time and number barred. In reversing the immigration judge’s decision, the BIA reasoned that Congress, when promulgating the rules for reopening removal proceedings did not apply these rules to motions to reopen based on asylum. Thus, the Board ruled that a movant for a motion to reopen in absentia proceedings based on a claim for asylum does not have to rescind his removal order to reopen removal proceedings and is not bound to the time and number limitations. 
I agree with the Board’s decision since it allows one of the most vulnerable immigrant groups apply for relief without going through any hurdles. However, even if  removal proceedings get reopened, the alien still has the burden to prove that he is eligible for relief.