Joint Motion to Reopen Lawyer NYC | Feiner & Lavy Law Firm

In most immigration cases, the matter is final once the immigration judge has issued a decision in the case. However, if new evidence or new facts become available, you may be able to file a motion to reopen the proceedings.

There are also certain circumstances in which Office of the Principal Legal Advisor (OPLA) attorneys may choose to use their prosecutorial discretion to join a Motion to Reopen.

If you know of new facts or evidence that could possibly change the outcome in your case, filing a motion to reopen your immigration case might be the best course of action for you. To learn more about filing this motion and whether or not it is right for you, contact a Joint Motion to Reopen Lawyer NYC today.

What is Prosecutorial Discretion?

Prosecutorial discretion allows an agency with the responsibility to enforce the law to choose where to focus its resources. It also allows the agency to decide whether to enforce and how to enforce the law against an individual. The Office of the Principal Legal Advisor (OPLA) relies upon prosecutorial discretion, among other factors, when making decisions.

When Do OPLA Attorneys Use Prosecutorial Discretion?

OPLA attorneys have the ability to use prosecutorial discretion in proceedings before the Executive Office for Immigration Review (EOIR). These proceedings can include exclusion, deportation, and removal proceedings. A Joint Motion to Reopen Lawyer NYC can help you learn more about how prosecutorial discretion may be used in your immigration case and how it may benefit you.

While exercising their prosecutorial discretion, OPLA attorneys must still adhere to the standard principles that apply to all of their actions. These principles include following the guidelines and directives of senior leadership, upholding the rule of law, discharging duties in an ethical manner according to professional standards of conduct and the law, and exercising considered judgment and upholding justice in individual cases.

When it comes to immigration, OPLA attorneys can use their prosecutorial discretion at different stages of the legal process, including stipulating to bond, agreeing to continuances, agreeing to dismiss cases, and joining in noncitizen motions to the court.

What Factors are Considered in the Use of Prosecutorial Discretion in Immigration Law?

The Office of the Principal Legal Advisor considers the totality of the circumstances when it exercises prosecutorial discretion. These decisions are made on a case-by-case basis and are dependent on the facts and circumstances present in each individual case.
There are many different factors that OPLA attorneys consider when deciding when and how to exercise prosecutorial discretion. These factors include:

  • How long the noncitizen has resided in the United States
  • Family or community ties of the noncitizen in the United States
  • Whether the noncitizen or his or her family is serving or has served in the U.S. military
  • The prior immigration history of the non-citizen
  • The noncitizen’s education and work history in the United States
  • Circumstances of the noncitizen’s arrival in the U.S. and the manner of entry to the U.S.
  • Whether the noncitizen is a victim, witness, or plaintiff in criminal or civil proceedings.

OPLA attorneys can also consider compelling humanitarian factors in each individual’s case—including factors related to the noncitizen’s close family members. These factors can include age, serious medical conditions, pregnancy, status as a primary caregiver for a relative in the United States, and status as a child.

Prosecutorial Discretion in Cases Involving Past Criminal History

In cases in which a noncitizen was charged or convicted of a crime—either in the United States or abroad—there are other additional factors that OPLA attorneys may consider when deciding if the use of prosecutorial discretion is appropriate. These factors include:

  • How recent the criminal activity was and the length of time since the conviction or offense occurred
  • The severity and extensiveness of the criminal activity
  • The time and length of any sentence imposed
  • Whether or not there is evidence of rehabilitation
  • Whether the noncitizen may pose a threat to public safety.

It is important to keep in mind that the use of prosecutorial discretion is case-specific. A Joint Motion to Reopen Lawyer NYC can help you understand if the use of prosecutorial discretion may be applicable to your case. Generally, the more forthcoming a noncitizen is when submitting facts and information related to their request for prosecutorial discretion, the more readily OPLA attorneys are able to make informed discretionary judgments based on the totality of the circumstances.

What is a Motion to Reopen?

In immigration court, a Motion to Reopen can be used to set forth new facts that will be proven at the time of hearing if the motion is granted. A Motion to Reopen must be supported by evidence, which can include affidavits.

Generally, immigration judges require that the evidence offered is material evidence and evidence that was not available at an earlier stage of the proceedings. Additionally, courts often require that the additional evidence could not have been discovered or presented previously.

Motions to reopen that are based on an application for relief typically will not be granted if it appears that the noncitizen’s right to apply for that relief had been fully explained to them and that they had a chance to apply for that relief at an earlier stage in the proceedings.

Joint Motions to Reopen Cases Due to the Use of Prosecutorial Discretion

Attorneys with the OPLA have the ability to use prosecutorial discretion in a number of different circumstances. One of the ways OPLA attorneys can exercise prosecutorial discretion is to join motions to reopen immigration cases.

While there are typically time limits and deadlines specific to motions to reopen cases, in the event that a motion to reopen is agreed upon by all of the parties involved and filed jointly, there are exceptions. Additionally, while noncitizens may only be allowed one opportunity to file a motion to reopen their case, motions that are jointly filed and agreed upon are not limited in number.

Recent Guidance Given to OPLA Attorneys Regarding the Use of Prosecutorial Discretion in Motions to Reopen

Currently, OPLA attorneys are permitted to exercise prosecutorial discretion to join motions to reopen on a case-by-case basis, weighing certain applicable factors in determining whether it is appropriate in each case. It is expected that additional guidance will be issued in the future to establish more specific guidelines for when OPLA attorneys should join motions to reopen cases.

At this time, U.S. Immigrations and Customs Enforcement has issued guidance regarding cases that may involve the Convention Against Torture. For these cases, OPLA is encouraged to either join motions to reopen for these forms of relief or to not oppose them.

Can I Submit a Request to OPLA to Have Prosecutorial Discretion Applied in My Case?

OPLA attorneys can evaluate their own cases and determine whether exercising prosecutorial discretion may be appropriate or warranted. However, noncitizens can also make an affirmative request to OPLA to have favorable prosecutorial discretion applied in their immigration case.

To make sure that noncitizens understand the process of requesting favorable prosecutorial discretion, OPLA schedules virtual town halls with the assistance of the ICE Office of Partnership and Engagement around the country to provide information about the process and to answer questions. Local standard operating procedures are explained at these events to allow for noncitizens to submit requests to each OPLA field location. These virtual town hall events can be helpful resources, depending on your circumstances.

The standard operating procedures that are developed for each OPLA field location include a local email address that noncitizens can use to submit their requests for prosecutorial discretion. These procedures also offer guidance regarding the details that should be included when submitting a request for prosecutorial discretion.

What Do I Need to Submit with My Request for Prosecutorial Discretion?

Since the standard operating procedures may vary slightly from each OPLA field location, it can be very helpful to hire a Joint Motion to Reopen Lawyer NYC to help you develop your request submission. Your lawyer will be able to help you cultivate your request to include the required information, in addition to including specific facts and evidence that may help you achieve a favorable outcome. In general, you will need to include the type of prosecutorial discretion you are seeking, why it is warranted in your case, and also supporting documentation to help the OPLA attorneys evaluate your case.

Include The Specific Type of Prosecutorial Discretion That You Are Requesting

The specific details will be fact and case-dependent, so your Joint Motion to Reopen Lawyer NYC will be able to help you tailor your submission in such a way to give you the best chance for approval. To get started, first identify which type of prosecutorial discretion that you are seeking. For example, you may be interested in a joint motion to reopen your case, a joint motion to dismiss, a stipulation for relief, bond reduction, or a continuance of your case.

Include Information and Facts that Support the Favorable Use of Prosecutorial Discretion in Your Case

You should also include any reasons why you think prosecutorial discretion should be used in your case, keeping in mind the factors that are generally considered by OPLA attorneys when making this decision. Finally, all supporting documentation that may be helpful in evaluating your case should be included.

Include Any Relevant Information Regarding Your Criminal History, If Applicable

If you have a criminal history, you should include any details such as arrests and convictions. It is generally better to be forthcoming about this type of information and emphasize positive changes you have made since any arrests or convictions.

Is There an Application Fee to Request Prosecutorial Discretion?

No, you do not have to pay a fee when you submit a request for prosecutorial discretion. Your Joint Motion to Reopen Lawyer NYC can help you throughout the process and answer any questions that you may have that come up along the way.

What Should I Expect After I Submit My Request for Prosecutorial Discretion?

After you have submitted your request, you will be contacted and advised of the OPLA’s response to your submission. Depending on the type of prosecutorial discretion agreed upon, the field location may provide you with a motion to sign for filing if the request is accepted. This motion may be a joint motion brought together with OPLA.

If you have a Joint Motion to Reopen Lawyer NYC representing you in your case, your attorney will receive the decision and related information. Your attorney will discuss the outcome of your request with you and help you understand the next steps to take in your case.

Do I Need to Hire an Attorney for My Immigration Case?

While it is almost always best to have an attorney represent you throughout any legal case, it is possible to proceed with a request for prosecutorial discretion without one. In cases where noncitizens are not represented by an attorney, there is no official required format that must be used when requesting prosecutorial discretion.

However, there are many benefits of hiring a Joint Motion to Reopen Lawyer NYC to handle your request for prosecutorial discretion in your immigration case. Your lawyer will have the knowledge and experience needed to help you submit a high-quality request that includes information about your case presented in a favorable manner. Having a lawyer help you throughout the process can also make it easier and less stressful for you to manage since he or she will be familiar with necessary deadlines and procedures.

New York Immigration Attorneys at Feiner and Lavy, P.C.

The immigration lawyers at Feiner and Lavy, P.C. have successfully handled immigration cases for many years, including cases that involve joint motions to reopen and requests for prosecutorial discretion. Give our office a call today to set up a consultation to meet with one of our attorneys to find out more about what we can do to help you obtain a favorable result in your immigration case.