Motions to Reopen in Immigration Court: A Practitioner’s Overview

Date of Information: 11/24/2025

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What is a Motion to Reopen?

A motion to reopen is the mechanism for asking an immigration judge or the BIA to re-examine a case based on new evidence or changed circumstances that were not available and could not reasonably have been discovered or presented at the prior hearing. The legal standard is strict: the new facts must be material and must be supported by evidence. See INA § 240(c)(7); 8 U.S.C. § 1229a(c)(7). Motions to Reopen are permissible in both the Immigration Courts and before the Bureau of Immigration Appeals. See 8 C.F.R. § 1003.23(b), c.f. 8 C.F.R. § 1003.2(c). The Supreme Court has emphasized that motions to reopen are disfavored and reviewed under a deferential abuse-of-discretion standard. INS v. Abudu, 485 U.S. 94, 107–10 (1988).

When a Motion to Reopen Is Appropriate?

A motion to reopen is appropriate when:

  • New, previously unavailable evidence exists that could change the outcome of the case, see 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3) (requiring that reopening be based on material evidence that was “not available and could not have been discovered or presented at the former hearing”), see also Matter of Coelho, 20 I&N Dec. 464, 471–73 (BIA 1992) (Movants for a motion to reopen bear a heavy burden to show a prima facie case for desired relief plus previously unavailable, material evidence);

  • Country conditions have materially changed since the original merits hearing (particularly for asylum, withholding, or relief under the Convention Against Torture, see INA § 240(c)(7)(C)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i); Matter of S-Y-G-, 24 I&N Dec. 247, 253–57 (BIA 2007); see also the Charles International Law (“CIL”) Guide to What Constitutes Torture in U.S. Immigration Law);

  • Ineffective assistance of counsel:

    • A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires: (1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not, see Matter of Lozada, 19 I&N Dec. 637 (BIA 1988);

    • Counsel's acceptance of responsibility for the error does not discharge the disciplinary authority complaint obligation under Matter of Lozada, particularly where the ineffective assistance allegation is rendered by the same attorney against himself. see Matter of Melgar, 28 I&N Dec. 169 (BIA 2020).

  • In absentia removal orders may be reopened, but only pursuant to notice defects and “exceptional circumstances,” see INA § 240(b)(5)(C); 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4) (regarding exceptions to filing deadlines in certain cases, including in absentia proceedings);

  • New eligibility for relief (e.g., family, humanitarian, or status-based relief), but the motion must establish a prima facie case for the new form of relief, see INA § 240(c)(7)(B); 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3);

  • Joint motions to reopen: Statutory one-motion/90-day limits in INA § 240(c)(7)(A), (C) are relaxed where DHS joins the motion; regulations recognize exceptions to time/number limits for joint motions. 8 C.F.R. §§ 1003.2(c)(3)(iii), 1003.23(b)(4)(iv).

  • The government has exercised prosecutorial discretion and the respondent must reopen the underlying proceedings to accept relief.

  • Client circumstances have changed (e.g., new persecution-related facts, new qualifying relatives for relief, new eligibility for adjustment or TPS).

  • In absentia removal orders were entered and the respondent can show:

    • lack of notice;

    • exceptional circumstances; or

    • DHS error that caused the absence.

Other Circumstances in Which a Case Can Be Reopened

Joint motions to reopen

The statutory and regulatory limits on the timeframe and number of motions to reopen are relaxed where DHS joins the motion. See INA § 240(c)(7)(A), (C); 8 C.F.R. §§ 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). For that reason, a joint motion to reopen might be the only feasible option for a respondent facing a manifest injustice if that respondent is beyond the filing deadline or has already attempted a motion to reopen previously.

Sua sponte reopening (“on the court’s own motion”)

Both BIA and the Immigration Courts have the authority to reopen or reconsider their own motions at any time. See 8 C.F.R. §§ 1003.2(a); 1003.23(b)(1). However, BIA precedent stresses that sua sponte reopening is reserved for “exceptional situations,” and that the Board’s discretion is extremely broad. See, e.g., Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002); Matter of L-V-K-, 22 I&N Dec. 976 (BIA 1999).

Deadlines for Motions to Reopen

The deadline for a motion to reopen varies with the case theory. The following chart should be used as a quick reference, but analyze your case carefully to be sure that you adhere to the proper deadline for the nature of your case.

General Practitioner Checklist – What You Must Do

Pre-filing legal analysis

  • Confirm timeliness and identify exceptions. Reference the chart above.

  • Identify the proper forum (BIA vs. IJ)

  • Evaluate prima facie eligibility and burden

    • Bear in mind that “a party who seeks a remand or to reopen proceedings to pursue relief bears a 'heavy burden' of proving that if proceedings before the immigration judge were reopened, with all the attendant delays, the new evidence would likely change the result in the case.” See Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992)

Factual investigation and evidence

  • New and material evidence requirement

    • You must present affidavits or other evidentiary material showing new facts; evidence must be “material and was not available and could not have been discovered or presented at the former hearing.” See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).

  • Changed country conditions cases

    • Must compare “then vs. now” – conditions at the time of the original hearing vs. current conditions. Matter of S-Y-G-, 24 I&N Dec. at 253–57.

  • IAC cases – Lozada compliance

    • Matter of Lozada sets out three core requirements: affidavit from the respondent, notice to prior counsel with opportunity to respond, and a statement whether a bar complaint has been filed (and if not, why not).

Technical and procedural compliance

  • Service requirements

  • Fees / fee waivers

    • EOIR uses a fixed fee schedule; motions to reopen are subject to a filing fee unless a fee waiver is granted by EOIR (see EOIR Forms EOIR-26A and EOIR policy guidance).

  • Post-departure bar issues

    • 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1) purport to bar motions to reopen after departure; there is ongoing litigation about the regulatory bar vs. the statutory right to one motion.

Documents to Assemble

All motions to reopen require the documents listed here. However, each of the various case theories will require additional documents listed in the CIL guide to that type of motion to reopen.

  • Motion to Reopen (legal brief). Must state new facts and be supported by affidavits or other evidence. 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).

  • Respondent’s declaration/affidavit. Standard practice to satisfy the requirement to present new facts “supported by affidavits or other evidentiary material.”

  • Supporting evidence

  • Filing fee or fee-waiver request

  • Certificate of service on DHS. See 8 C.F.R. §§ 1003.2(g), 1003.23(b)(1)(ii).

Practical Notes

  • Expect a high bar – Abudu and Coelho together give the government and the BIA wide discretion and characterize reopening as exceptional, not routine.

  • Country-conditions motions live or die on comparative analysis – S-Y-G- is the controlling BIA template for assessing whether conditions have “changed” vs. simply “continued.”

  • IAC claims are technical traps – failure to follow Lozada formalities is a common reason for denial, even where underlying performance was objectively deficient.

  • Sua sponte is not a strategy; it’s a last resort – the BIA’s precedent (G-C-L-, L-V-K-) and circuit law treat sua sponte authority as essentially unreviewable and reserved for “truly exceptional” situations.

  • Voluntary departure + reopening must be handled carefully. A respondent must be allowed to withdraw voluntary departure to preserve the right to move to reopen, but timing and strategy still matter. See Dada v. Mukasey, 554 U.S. 1 (2008)

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Frequently Asked Questions About Motions to Reopen

1. What is a motion to reopen in immigration court?

A motion to reopen is a formal request asking an immigration judge or the BIA to review a closed case based on new, previously unavailable, material evidence that could change the outcome. It is governed by INA § 240(c)(7), 8 C.F.R. §§ 1003.2 and 1003.23.

2. How long do I have to file a motion to reopen?

The default deadline is 90 days from the date of the final removal order. However, several important exceptions exist, including changed country conditions, in absentia rescission based on lack of notice, certain VAWA cases, joint motions, and equitable tolling.

3. What are the most common reasons to file a motion to reopen?

Common reasons include new evidence of persecution, changed country conditions, ineffective assistance of counsel, new eligibility for relief (such as adjustment or asylum), or rescission of an in absentia order.

4. Can I file a motion to reopen if I was ordered removed in absentia?

Yes. You may seek rescission within 180 days if “exceptional circumstances” caused the absence, or at any time if lack of proper notice can be shown. Different standards apply depending on the reason.

5. Does leaving the United States affect my ability to file?

The “post-departure bar” in 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1) complicates motions filed after leaving the country, and its enforceability varies by circuit. You should obtain legal advice immediately if you have already departed.

6. What evidence is required in a motion to reopen?

You must include new, material evidence—such as declarations, country reports, medical records, police documents, expert assessments, or proof of new family or humanitarian circumstances—plus a clear explanation of why this evidence could not have been presented earlier.

7. Can I file more than one motion to reopen?

Generally, no. The statute allows one motion to reopen, but exceptions exist for joint motions, changed country conditions, certain VAWA cases, and DHS-initiated motions.

8. What is equitable tolling, and can it help me?

Equitable tolling can extend the 90-day filing deadline where extraordinary circumstances—such as ineffective assistance of counsel or fraud—prevented timely filing, and the respondent acted with due diligence.

9. How long does it take for the court or BIA to decide a motion to reopen?

Processing times vary widely. Immigration courts may take several months; the BIA often takes 6–18 months, depending on docket backlog and case complexity.

10. Does filing a motion to reopen stop deportation?

Not automatically. You may need to file a separate request for a stay of removal. The BIA has discretionary authority to grant or deny stays.

11. What are my chances of winning a motion to reopen?

Success depends entirely on the strength of the new evidence, the legal basis for reopening, adherence to procedural rules, and the credibility of the underlying claim. Motions to reopen are legally disfavored, but strong, well-supported filings are regularly granted.

12. Should I get a lawyer to file a motion to reopen?

Yes. Motions to reopen involve technical legal standards, strict deadlines, and complex evidentiary requirements. An attorney can evaluate eligibility, prepare supporting evidence, and ensure compliance with procedural rules.

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