Section 5: Motions to Reopen A. Motions to Reopen Where a stateless individual has a strong asylum claim that was not properly considered during her removal hearing, or she discovered after a final order of removal that she was stateless, the next step may be to file a motion to reopen to present these additional factors.180 Prevailing on a motion to reopen can be difficult. According to the EOIR bench book, a motion to reopen will not be granted unless the IJ or BIA is satisfied that the evidence sought to be offered is material, was not available, and could not have been discovered or presented at the former hearing.181 Furthermore, with limited exceptions, motions to reopen are subject to time and numerical limitations. Specifically, a party may file only one motion to reopen and it must be filed within 90 days of a final order of removal.182 If the motion is not filed within 90 days, there are certain scenarios under which a motion to reopen is nonetheless valid: (a) the individual intends to apply for asylum, Withholding or CAT relief and the basis for the claim is a result of changed conditions in the country of removal;183 (b) an in absentia order was due to exceptional circumstances; 184 or (c) the underlying order was due to ineffective assistance of counsel.185 In reference to stateless cases, motions to reopen based on changed country conditions may be the most frequently relevant ground. Particularly where an individual’s country rendered her stateless after her arrival in the United States, a showing of a change in country conditions is clearly a possibility. Such was the case in Jourbina v. Holder,186 where a family formerly from Kazakhstan was denationalized several years after they had entered the United States and had already received an order of removal. After their citizenship was revoked by the Kazakh government, the Jourbinas filed a motion to reopen their case on the basis of changed country conditions. After an initial denial at the BIA, the Jourbinas arguments –based on their newlyimposed statelessness - found success before the Second Circuit Court of Appeals. Counsel’s opening brief in the Jourbina case can be found in the Appendix to the present manual. If none of these bases for motioning to reopen is supported by the facts and circumstances of a stateless individual’s case, or the motion is time or number-barred, other options include requesting that ICE join a motion to reopen and requesting that either ICE or EOIR grant a motion to reopen sua sponte. B. Joint Motions to Reopen and Motions to Reopen Sua Sponte For additional information on motions in general, see VIKRAM K. BADRINATH, HELEN PARSONAGE, & JENNA PEYTON, AMERICAN IMMIGRATION LAWYERS ASSOCIATION (AILA) DOC. NO. 14072246b., TIME-BARRED MOTIONS TO REOPEN- TIPS AND TRICKS FOR SUCCESS, 795 ( May 17, 2016), available at http://www.aila.org/File/Related/14072246b.pdf. 181 See EOIR IMMIGRATION JUDGE BENCHBOOK MOTIONS, ¶6, available at https://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/Motions_to_Reopen_Guide.pdf. 182 8 C.F.R. § 1002.239(b)(1), (4). 183 8 C.F.R § 1003.23(b)(4)(i). 184 8 C.F.R. § 1003.23(b)(4)(ii). 185 The procedural and substantive standards for raising a claim of ineffective assistance of counsel are contained in a Practice Advisory prepared by the American Immigration Council. See AMERICAN IMMIGRATION COUNCIL, SEEKING REMEDIES FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN IMMIGRATION CASES (Jan. 19, 2016), available at https://www.americanimmigrationcouncil.org/research/seeking-remedies-ineffective-assistance-counsel-immigration-cases. 186 Jourbina, 532 Fed. Appx. 1. 180 40