10.17 Motions to Reopen or Reconsider.

(a) General . [Revised 02-08-2008 to remove Note 1 and renumber notes 2-3]

A motion to reopen or a motion to reconsider a decision may be filed provided the request meets the requirements of 8 CFR 103.5. Motions to the BIA must meet the requirements of 8 CFR 3.2. Ordinarily a motion is adjudicated by the same officer who made the original decision. In all cases, the motion must be considered by the same office (district, service center, immigration court, AAO, or BIA) which most recently decided the case. A motion may be filed by the applicant or petitioner or by USCIS.

Note 1

When considering any form of extension or similar benefit, and where the same parties are involved, USCIS will give deference to the previous decision. Deference is required even if there is a precedent or adopted decision. Furthermore, officers may only draw a different conclusion where there is a clear change or distinction in facts. Even in such instances, a supervisor must explicitly concur with the different conclusion.

Note 2

Unless there is a clear finding of fraud or substantial material misrepresentation, or the facts have clearly and distinctly changed, officers should not reopen a previously approved and valid application or petition. Even in these circumstances, a supervisor must explicitly concur with the different conclusion.

(b) Motion Filed by Applicant or Petitioner .

A motion filed by the applicant or petitioner for consideration by USCIS or the BIA is filed in writing with the fee prescribed in 8 CFR103.7 . Consideration of a motion is a two-stage process: the first stage is a determination as to whether the case should be reopened or reconsidered, and the second stage (for those motions that are reopened or reconsidered) is the rendering of a new decision. [NOTE: Although 8 CFR 103.5(a)(1)(iii) states that the motion should be filed on Form I-290A, that form has not been in existence as an approved form since 1994 (and prior to that date was only used for a different purpose). Accordingly, the moving party cannot be held to that particular requirement and a motion made in writing cannot be rejected simply because it is not on that particular form.]

A motion to USCIS which does not meet one or more of the requirements for a motion set forth in 8 CFR 103.5 (other than the Form I-290A requirement) must be dismissed for failure to meet those requirements, using a written order describing the deficiencies. The fee is not refunded in such a situation, unless is it determined that there was some USCIS error involved in the applicant or petitioner submitting the motion.

If the case is accepted for reopening or reconsideration, a new decision must be issued in formal order format. Such decision might be:

· To approve the application or petition, if all reasons for the original denial have been overcome and no new reasons have arisen;

· To deny the application or petition for the same reasons as in the original decisions, but with an explanation as to why the arguments submitted in the motion were not persuasive;

· To deny the application or petition for reasons not contained in the original decision, provided the applicant or petitioner is given an opportunity to review and rebut any new evidence of which he or she was not already aware; or

· A combination of the second and third possibilities (reaffirmation of the original reasons plus the addition of new reasons).

(c) USCIS Motions .

If you determine that a petition should not have been approved but there are no specifically applicable grounds for revocation in the regulations, or that a petition should not have been denied, the petition may be reopened on USCIS motion and a new decision issued. [See 8 CFR103.5(a)(5) .] If the motion is adverse to the petitioner or applicant, a “notice of intent” should be used; if the new decision is favorable, the decision can be issued without any prior notice. A new appeal period commences with the issuance of a new adverse decision. [See also “Petition Revocation” in Chapter 20 of this manual.]