Motions to Reopen and Reconsider in Immigration Court

If an immigration judge has already ruled against you, you generally have only 90 days to file a motion to reopen (based on new facts or evidence) or 30 days to file a motion to reconsider (based on a legal or factual error) - and in most cases you only get one of each. An order made when you missed a hearing (an "in absentia" order) has its own rule, often 180 days if the reason was an exceptional circumstance, or no deadline if you never received proper notice. These clocks are short, they are calculated from the date of the order, and courts enforce them strictly. If you are facing this situation, contact a licensed immigration attorney or a Department of Justice (DOJ)-accredited representative immediately - do not wait to see what happens next.

What a motion to reopen does

A motion to reopen asks the immigration judge, or the Board of Immigration Appeals (BIA) if the case is already on appeal, to look at new facts or new evidence that were not available and could not have been discovered or presented at the earlier hearing. Common reasons people file include:

• New evidence that supports a claim for relief (for example, a marriage to a U.S. citizen, a new asylum claim, or new proof of eligibility for a waiver).
• A missed hearing that led to an order of removal "in absentia" (see below).
• A claim of ineffective assistance of a prior attorney or representative, where specific procedural requirements must be met.
• Changed conditions in the person's home country that support an asylum, withholding of removal, or Convention Against Torture claim.

A motion to reopen must be supported by affidavits or other evidence, and it must show the new material could not have been presented earlier. It is governed by Immigration and Nationality Act (INA) section 240(c)(7) and the regulations at 8 C.F.R. §§ 1003.2 and 1003.23.

What a motion to reconsider does

A motion to reconsider is different: it does not introduce new evidence. It argues that the judge or the BIA got something wrong in the existing record - a misapplication of the law, an error in the facts already presented, or a legal argument that was overlooked. Because no new hearing or new evidence is involved, the deadline is much shorter, and the standard is aimed at correcting a specific, identifiable error rather than reopening the whole case. Motions to reconsider are governed by INA section 240(c)(6) and 8 C.F.R. §§ 1003.2(b) and 1003.23(b)(2).

The deadlines and numerical limits

• Motion to reopen: generally must be filed within 90 days of the date of the final administrative order of removal, deportation, or exclusion. As a general rule, you are permitted only one motion to reopen in a case.
• Motion to reconsider: generally must be filed within 30 days of the date of entry of the final order. As a general rule, only one motion to reconsider is permitted, and there is generally no exception to this time and number limit when the motion is filed by the individual in proceedings.
• In-absentia removal order (you missed your hearing): If your failure to appear was due to "exceptional circumstances" (for example, a serious illness or death of a close family member, or comparably compelling reasons beyond your control), you generally have 180 days from the order to file a motion to reopen. If you can show you never received proper notice of the hearing, or that you were in federal or state custody and your absence was not your fault, there is generally no fixed deadline to move to reopen on those grounds.
• Asylum-related changed country conditions: A motion to reopen based on new asylum, withholding of removal, or Convention Against Torture eligibility premised on changed conditions in the country of removal is generally not subject to the normal 90-day deadline or the one-motion limit, if the evidence is material and was not available earlier.

Because rules like these are applied strictly and have been the subject of litigation and regulatory changes over time, always confirm the exact current deadline and any exceptions that may apply to your situation directly with the immigration court, the BIA, or a qualified attorney. The Executive Office for Immigration Review (EOIR), part of the Department of Justice, publishes its current policy manual and practice guidance at justice.gov/eoir.

Other paths outside the normal limits

• Joint motions: If Immigration and Customs Enforcement (ICE) or the DHS attorney agrees to join your motion to reopen, the case can sometimes be reopened outside the usual time and number limits.
• Sua sponte reopening: An immigration judge or the BIA has discretionary authority to reopen or reconsider a case on its own motion in truly exceptional situations. This is granted rarely and only at the adjudicator's discretion; it is not a right you can force by simply asking.
• Equitable tolling: Courts have recognized limited circumstances where a deadline can be paused or extended - for example, where an attorney's serious error prevented a timely filing - but this requires a specific, well-documented showing and is not automatic.

Filing a motion usually does not stop removal on its own

A critical point people often misunderstand: for most cases, simply filing a motion to reopen or reconsider does not, by itself, pause or cancel a scheduled removal. Under the regulations, the general rule is that the filing does not stay removal. There is one narrow exception worth knowing: a motion to reopen an in-absentia order does, by regulation, stay removal while it is pending before the immigration judge. Do not assume that exception applies to you - confirm it with an attorney, and in every other situation you (through your attorney) must separately request a stay of removal from the immigration judge, the BIA, or in some circumstances a federal court, which is granted at that adjudicator's discretion. If you are detained, have already received a bag-and-baggage letter, or have a removal date, this request needs to be filed immediately alongside the motion - do not assume you have time.

What to do

1. Note the exact date of your order - the deadline clock generally starts running from that date, not from when you found out about it or when you can get a lawyer.
2. Contact a licensed immigration attorney or a DOJ-accredited representative right away. Find a nonprofit legal service provider or check your status and next steps at justice.gov/eoir. If you are detained, ask staff for the facility's legal orientation program or list of free/low-cost legal services.
3. Gather any new evidence that supports your motion - documents, records, medical or country-condition evidence, or proof of notice problems - as early as possible, since the motion must generally be supported when filed, not later.
4. Ask specifically about a stay of removal if you are detained or have a scheduled removal date; this is a separate request from the motion itself and time-sensitive.
5. File with the correct decision-maker - the immigration judge if the case is still with the court, or the BIA if the case has already been appealed - since filing in the wrong place can waste precious time.

Beware of notario and unauthorized-practice fraud

Because these deadlines are so short and unforgiving, this is exactly the situation scammers target. A "notario," immigration "consultant," or unlicensed preparer cannot practice law and cannot properly represent you in these motions, no matter what they promise. Filing the wrong type of motion, missing a deadline, or leaving out required evidence because of bad advice can permanently end your ability to reopen your case. Only a licensed attorney or a representative accredited by the DOJ through a recognized organization can properly advise you and appear on your behalf. You can find accredited representatives and verify a person's authorization through EOIR at justice.gov/eoir.

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Immigration deadlines are strict and unforgiving of mistakes - consult a qualified immigration attorney or DOJ-accredited representative as soon as possible, and verify current deadlines, forms, and procedures directly with the Executive Office for Immigration Review (justice.gov/eoir).