What Is a Motion to Reopen in Immigration Court?
A motion to reopen is an important legal option in U.S. immigration proceedings when a person wants the Immigration Court to look at a case again because of new facts or evidence. It is generally filed after an Immigration Judge has already issued a decision.
For someone who has received an unfavorable immigration decision, the words “motion to reopen” can sound simple, but the legal requirements are specific. A motion is not automatically granted merely because a person has new information or wants another opportunity to present a case.
Under federal immigration regulations, a motion to reopen generally must identify the new facts that would be presented if the case were reopened and must be supported by affidavits or other evidence. The evidence generally must be material and must not have been available, or reasonably discoverable or presentable, at the earlier proceeding.
What Does a Motion to Reopen Mean?
A motion to reopen asks the Immigration Court to reopen previously decided proceedings so that the Immigration Judge can consider new facts or evidence.
This is different from a motion to reconsider. A motion to reconsider generally argues that the Immigration Judge made an error of law or fact based on the existing record. A motion to reopen, by contrast, is generally based on new facts or evidence that were not previously available.
The distinction matters because the two motions have different purposes and deadlines. EOIR generally states that a motion to reopen must be filed within 90 days of an Immigration Judge's final administrative order, while a motion to reconsider generally must be filed within 30 days.
When Can Someone File a Motion to Reopen?
A motion to reopen may be appropriate when important new facts or evidence have become available after the immigration case was decided.
For example, a person may seek reopening when circumstances have materially changed, when new evidence becomes available, or when another legally recognized basis for reopening exists.
However, simply obtaining additional evidence is not always enough. The evidence generally must be material to the case and must not have been available or discoverable at the time of the earlier proceeding.
The Immigration Judge also has discretion when deciding whether to grant a motion to reopen. Meeting a basic evidentiary requirement does not necessarily guarantee that the motion will be granted.
Is There a 90-Day Deadline?
Yes. As a general rule, a motion to reopen before the Immigration Court must be filed within 90 days of the Immigration Judge's final administrative order.
There are important exceptions, however. Federal regulations recognize several circumstances in which the ordinary time and numerical limits may not apply.
Because the deadline can depend on the type of case and the legal basis for reopening, a person should not assume that missing the 90-day period automatically ends every possibility of reopening.
What About Asylum Cases?
There is an important exception involving certain asylum, withholding of removal, and Convention Against Torture claims.
Under the regulations, the ordinary time and numerical restrictions may not apply when a motion to reopen is based on changed circumstances arising in the country of nationality or the country to which removal has been ordered, provided the required legal and evidentiary conditions are satisfied.
The changed circumstances must be material and supported by evidence.
This can be particularly important in immigration cases where conditions in a person's home country have significantly changed after the original case was decided.
What If the Person Missed an Immigration Court Hearing?
Special rules apply when an Immigration Judge entered an in absentia removal order, meaning the person was ordered removed after failing to appear for the scheduled hearing.
In certain circumstances, a motion to reopen an in absentia order may be filed within 180 days when the person can establish that the failure to appear resulted from exceptional circumstances.
There is also a separate rule allowing a motion to reopen at any time in certain cases where the person did not receive the required notice of the hearing or was in federal or state custody and the failure to appear was through no fault of the person.
These cases are highly fact-specific, so the reason for the missed hearing and the available evidence can be extremely important.
How Many Motions to Reopen Can a Person File?
As a general rule, a party may file only one motion to reopen before the Immigration Court.
However, federal regulations provide exceptions to the ordinary numerical limitation. For example, certain motions involving changed country conditions, in absentia proceedings, and jointly filed motions can be treated differently under the regulations.
This is one reason why filing a motion without carefully determining the legal basis can create serious problems.
What Evidence Is Needed?
A motion to reopen should explain the new facts that the person wants the Immigration Judge to consider.
Depending on the circumstances, supporting evidence may include affidavits, official records, country-condition evidence, identity or family documents, medical or other records, or documents supporting the particular form of immigration relief being requested.
EOIR states that a motion to reopen must be supported by affidavits or other evidentiary material. If the motion is being filed to pursue a form of relief that requires an application, the appropriate application and supporting documents generally must also accompany the motion.
The evidence should not simply be attached without explanation. The motion should connect the evidence to the legal reason why reopening is justified.
Where Is the Motion Filed?
A motion to reopen an Immigration Judge's decision generally must be filed with the Immigration Court that has administrative control over the Record of Proceeding, subject to the jurisdictional rules that apply to the case.
If an appeal has already been filed with the Board of Immigration Appeals, the Immigration Judge generally no longer has jurisdiction over the case. EOIR specifically warns that a motion to reopen should not be filed with the Immigration Court after an appeal has been taken to the Board.
This makes it important to determine where the case is currently pending before filing anything.
Does Filing a Motion to Reopen Automatically Stop Removal?
Generally, no.
Under the regulations, filing a motion to reopen normally does not automatically stay execution of a removal order, except for specific situations such as certain in absentia cases.
A separate request for a stay may be necessary when the person needs protection from removal while the motion is being considered.
A person who has a pending motion should therefore not assume that the motion itself prevents removal.
Motion to Reopen vs. Motion to Reconsider
Although the names sound similar, the two motions serve different purposes.
A motion to reopen generally asks the Immigration Judge to consider new facts or evidence.
A motion to reconsider generally asks the Immigration Judge to reconsider a decision because of an error of law or fact, based on the existing record and applicable legal authority.
The general deadline for a motion to reopen is 90 days, while the general deadline for a motion to reconsider is 30 days.
Choosing the correct type of motion can therefore be critical.
What Happens After the Motion Is Filed?
After a motion is properly filed, the opposing party may have an opportunity to respond. EOIR's Immigration Court Practice Manual states that responses to motions to reopen are generally due within 10 days after the motion is received by the Immigration Court, unless the Immigration Judge specifies otherwise.
The Immigration Judge then considers the motion, the evidence, and the applicable law.
Granting or denying a motion to reopen is within the Immigration Judge's discretion, subject to applicable law and review procedures.
What Happens If the Motion Is Granted?
If the Immigration Judge grants the motion, the immigration proceedings are reopened so that the court can address the matters identified in the motion.
Reopening does not necessarily mean that the person automatically wins the underlying immigration case. It generally means that the case can move forward again for consideration of the relevant facts, evidence, and requested relief.
The outcome of the reopened proceedings will depend on the particular immigration claim and the evidence presented.
Can a Motion to Reopen Be Filed After an Appeal?
The answer depends on where the case is pending and which decision is being challenged.
If the Board of Immigration Appeals has already acquired jurisdiction because an appeal was filed, the Immigration Judge generally does not retain jurisdiction over the case. A motion to reopen involving a BIA decision is governed by the rules applicable to motions before the Board. EOIR states that a motion to reopen before the BIA generally must be filed within 90 days of the Board's final administrative decision, subject to exceptions.
Therefore, checking the procedural history of the case is essential before preparing the motion.
Conclusion
A motion to reopen can provide an important opportunity to ask an Immigration Court or the Board of Immigration Appeals to consider new facts or evidence after an immigration case has been decided.
But it is not simply a request for another chance. The person filing the motion generally must identify a legally sufficient basis for reopening, provide supporting evidence, comply with applicable filing requirements, and address the relevant deadline or exception.
The 90-day general deadline, the one-motion limitation, the special rules for in absentia orders, changed country conditions, jointly filed motions, and cases pending before the BIA can all affect whether reopening is available.
Because immigration deadlines can have serious consequences, anyone considering a motion to reopen should carefully review the final order, the procedural history, the available evidence, and the applicable regulations before filing.
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Legal Disclaimer
This article is provided for general educational and informational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. U.S. immigration law and court procedures can change, and individual cases may involve different deadlines, exceptions, and procedural requirements. Readers should consult a qualified U.S. immigration attorney or accredited representative for advice concerning their specific circumstances.
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