A Motion To Rescind a Prior Removal Order Is Not Required If You Are Seeking Asylum Based on Changed Country Conditions

Ricky Malik

The Board of Immigration Appeals (BIA) clarified that a foreign national does not need to rescind a prior removal order if a foreign national seeks to file for asylum based on changed country conditions in the foreign national's home country.

Normally, an individual who has an outstanding order of removal (deportation) first files a motion to reopen with the Immigration Court that ordered deportation before pursuing the immigration matter. This is because there are very few immigration options available to someone who has been ordered deported and the rescission of the prior removal order will open up avenues.

There are several types of motions to reopen with different time limits and requirements:

  1. Factual: Must be filed within 90 days of the decision ordering removal;
  2. In absentia orders: If the person was not in court, a motion to reopen may be filed within 180 days if the foreign national demonstrates exceptional circumstance for failing to appear;
  3. Joint Motions: If the Department of Homeland Security (DHS) agrees and joins in reopening the case there is no time limit;
  4. No Notice: There is no time limit if the foreign national did not receive proper notice or was in Federal or State custody;
  5. Battered Spouses, Children, Parents: If the person(s) were subject to abuse and meets the requirements, there no time limit;
  6. Asylum: If based on Changed Country Conditions there is no time limit.

In Matter of J-G-, 26 I&N Dec. 11 (BIA 2013), the Board clarified that the reopening does not have to seek to rescind the prior removal order first, if the purpose for seeking reopening is to apply for asylum or withholding of removal based on changed country conditions. This is significant because rescinding or erasing a prior removal order is oftentimes very difficult. Now an applicant can first concentrate and limit the case to meeting the requirements of filing for asylum based on changed country conditions instead of having the Court address both recision and reopening at the same time. Decision Below.

Ricky Malik, Esq.