A Sua Sponte 'Service Motion'
An extraordinary motion requesting an Immigration Judge, the BIA, or USCIS to exercise inherent discretionary authority to reopen a case on its own motion when statutory deadlines have expired.
1. Overview of the Process & Reasons to Pursue
Under federal immigration law, motions to reopen are subject to strict statutory limits: an individual is generally entitled to only one motion to reopen, filed within 90 days of a final administrative order of removal (INA § 240(c)(7)). When an individual has a final order of removal and the statutory 90-day deadline has long expired, standard reopening is legally barred. However, under 8 C.F.R. § 1003.23(b)(1) (for Immigration Courts) and 8 C.F.R. § 1003.2(a) (for the Board of Immigration Appeals), the court possesses inherent authority to reopen proceedings on its own motion ('sua sponte') at any time. A 'Sua Sponte Service Motion' is a formal request asking the court to exercise this extraordinary discretion.
Why Someone Pursues This Process / How One Enters It
A sua sponte motion is often the sole remaining legal remedy for an immigrant with an old final deportation order who has developed new, life-changing eligibility for relief—such as an approved I-130 petition through a U.S. citizen spouse, eligibility for adjustment of status, the vacatur of an underlying criminal conviction in criminal court, or severe changes in personal circumstances.
2. How Long the Process Usually Takes
6 to 18 months depending on the specific Immigration Court or Board of Immigration Appeals docket backlogs.
3. Forms That Need to Be Completed
Successfully completing this process involves preparing and submitting official government petitions and affidavits:
Formal Motion to Reopen Sua Sponte
Detailed written legal pleading submitted to the Immigration Court or BIA
Form EOIR-28 / Form EOIR-27
Notice of Entry of Appearance as Attorney before the Immigration Court or BIA
Underlying Application for Relief
Copy of the completed application for relief (e.g., Form I-485, Form EOIR-42B, or approved I-130/waiver)
4. Supporting Evidence & Documentation Checklist
In immigration proceedings, the applicant carries the burden of proof. A complete evidentiary packet must include:
- Proof of 'exceptional situation' under *Matter of J-J-*, 21 I&N Dec. 976 (BIA 1997) and *Matter of G-D-*, 22 I&N Dec. 1132 (BIA 1999)
- Proof of newly available, previously unavailable relief (e.g., approved Form I-130 with an immediately current priority date, approved U-visa, or grant of TPS)
- Certified court orders vacating or modifying the underlying criminal conviction on constitutional grounds or substantive legal defects
- Comprehensive proof of positive discretionary equities: 10+ years of continuous U.S. residence, family ties, birth certificates of citizen children, property ownership, steady tax compliance, and business ownership
- Evidence of genuine rehabilitation and clean background checks (FBI Identity History Summary, local police clearances)
Before filing, you must audit your entire background for statutory bars, criminal inadmissibility, and prior immigration violations. Any of the following issues can lead to immediate denial, forfeiture of filing fees, or removal proceedings:
- Lack of 'Exceptional Situation': Ordinary hardship, common family separation, or standard passage of time does not meet the exceptional standard required for sua sponte discretion.
- Serious Criminal Convictions or Public Safety Concerns: Discretion will not be exercised in favor of individuals with violent crimes or significant criminal records.
- Failure to Overcome Barred Relief: Inability to establish prima facie eligibility for the underlying green card or relief.
- Recent Federal Case Law (*Patel v. Garland*): Severe limitations on federal circuit court jurisdiction to review discretionary denials of sua sponte motions.
6. Government Filing Fees
Government filing fees are strictly non-refundable and set by federal regulation (USCIS, EOIR, and Department of State fee schedules):
Note: Government fees are subject to periodic regulatory updates. Fee waivers (Form I-912 or EOIR-26A) may be available for qualifying indigent applicants on select forms.
7. Possible Adjudication Outcomes
Upon review by the adjudicating agency, asylum office, or court, this process can lead to the following formal outcomes:
- Motion Granted: Previous removal order is vacated; proceedings are reopened and either reset for an individual hearing or terminated without prejudice.
- Motion Denied: Court declines to exercise its sua sponte authority; final removal order remains in full legal effect.
- Opposition by DHS: ICE OPLA files an opposition brief urging the court to deny the motion.
8. What Can Be Done If Your Outcome Is Negative?
Under binding Supreme Court and Circuit Court precedent, an Immigration Judge's or the BIA's decision declining to exercise sua sponte authority is committed to agency discretion and is generally unreviewable by federal courts of appeals, except for colorable constitutional claims or where the BIA misapprehended its own legal authority. If sua sponte reopening is denied, counsel can: (1) Approach ICE OPLA to negotiate a Joint Motion to Reopen; (2) Apply for an administrative stay of removal on Form I-246 with ICE ERO; or (3) Pursue prosecutorial discretion.
9. Range of Legal Fees Charged by Lawyers
$4,000 to $8,000+ typical attorney fee due to the extraordinary evidentiary standard, equity compilation, and intensive procedural brief drafting.
At JBC Law Office, attorney Joseph B. Caraccio provides transparent flat-fee representation with written retainer agreements, personalized evidentiary assembly, and direct attorney communication at every step.