What is a motion to reopen?

A motion to reopen is a formal request asking the immigration court or the Board of Immigration Appeals to reopen a concluded immigration case. It is usually based on new facts or evidence that were not available during the original proceedings and that could affect the outcome.

The legal framework for motions to reopen is outlined in INA § 240(c)(7), which permits a noncitizen to file a single motion to reopen removal proceedings, subject to deadlines and exceptions.

A motion to reopen is different from an appeal. An appeal argues that the immigration judge made a legal or factual error based on the record that already existed. A motion to reopen asks the court to consider new evidence, changed facts, or a procedural problem that was not fully addressed in the original case.

Motions before immigration courts are governed by 8 C.F.R. § 1003.23, while motions before the Board of Immigration Appeals are governed by 8 C.F.R. § 1003.2. Where you file depends on which body last had jurisdiction over the case.

Grounds for filing a motion to reopen

A motion to reopen must be based on a recognized legal ground. It is not enough to say the original decision was unfair or that the person wants another hearing.

New evidence not previously available

One common basis is new evidence that was not available and could not reasonably have been presented at the original hearing. The evidence must be material, meaning it could affect the result of the case.

For example, new medical records, newly obtained identity documents, updated expert reports, or evidence that became available only after the hearing may support reopening if they relate directly to eligibility for relief.

Changed country conditions

A motion to reopen may also be based on changed conditions in the country of removal. This is especially important in asylum, withholding of removal, and Convention Against Torture cases.

Changed country conditions motions can sometimes be filed outside the usual 90-day deadline. The key is that the change must relate to the country conditions, not just a change in the person’s personal life. The evidence should show that conditions have materially changed since the original hearing and that those changes now affect the person’s risk if returned.

Ineffective assistance of prior counsel

A person may be able to file a motion to reopen if their prior attorney made serious mistakes that affected the outcome of the case. These claims often follow the requirements set out in Matter of Lozada, which generally require an affidavit explaining the agreement with prior counsel, notice to the prior attorney with an opportunity to respond, and a bar complaint or an explanation of why one was not filed.

This type of motion is technical. It is not enough to show that the prior lawyer made a mistake. The respondent must also show prejudice, meaning the error likely affected the outcome or denied them a meaningful opportunity to present their case.

Failure to receive notice of hearing

If someone was ordered removed in absentia because they did not appear at a hearing, they may be able to file a motion to reopen if they did not receive proper notice. EOIR explains procedures for reopening in absentia removal orders, including motions based on lack of notice.

This ground is different from simply missing a hearing. If the respondent failed to keep the court updated with their current address, that can make the motion much harder. Immigration court respondents are responsible for keeping their address current with the court.

Serious procedural problems

In some cases, reopening may be based on a serious procedural defect, such as a lack of meaningful notice, inability to present evidence, or a due process issue that affected the outcome. These arguments require careful legal analysis because not every unfair or difficult circumstance rises to the level required for reopening.

The 90-day deadline and its exceptions

The general rule is that a motion to reopen must be filed within 90 days of the final removal order. The EOIR Immigration Court Practice Manual explains this timing rule in its section on motions to reopen.

There are important exceptions. For example, motions based on changed country conditions may be filed outside the 90-day deadline if they meet the required standard. Motions to reopen in absentia orders based on lack of notice are also treated differently. Ineffective assistance claims may involve equitable tolling arguments if the person acted diligently after discovering the prior attorney’s error.

Deadline analysis is one of the most important parts of a motion to reopen. A strong underlying case can still be denied if the motion is late and no valid exception or tolling argument applies.

The motion to reopen process: Step by step

The process depends on whether the motion is filed with immigration court or the Board of Immigration Appeals, but the main steps are similar.

Step 1: Assess grounds and deadline

The first step is determining whether there is a valid basis to reopen and whether the motion is timely. This usually requires reviewing the prior court record, the removal order, appeal history, hearing notices, prior applications, and any new evidence.

This step is essential because filing the wrong type of motion, filing in the wrong place, or filing outside the deadline without an exception can lead to denial.

Step 2: Gather and prepare supporting evidence

A motion to reopen must be supported by evidence. Depending on the basis for the motion, this may include affidavits, country conditions reports, court records, medical documents, expert opinions, proof of changed circumstances, or evidence connected to prior counsel’s errors.

The evidence should not simply repeat what was already submitted. It should explain what is new, why it matters, and why it could change the outcome.

Step 3: Draft the motion

The motion should clearly explain the legal basis for reopening, the facts supporting it, the evidence attached, and the relief the person plans to seek if the case is reopened.

If the motion is late, it must also explain why it fits within an exception or why equitable tolling should apply. Motions that do not address timeliness directly are often denied before the court reaches the merits.

Step 4: File the motion and pay the fee

The motion must be filed with the correct court or agency. If the immigration judge issued the final order and the case was not appealed, the motion is usually filed with the immigration court. If the Board of Immigration Appeals issued the final administrative decision, the motion is usually filed with the BIA.

A filing fee may apply unless the person qualifies for a fee waiver. Current procedures, addresses, and fee requirements should be confirmed before filing because EOIR rules and filing systems can change.

Step 5: Request a stay of removal if needed

Filing a motion to reopen usually does not automatically stop removal. If the person is at risk of being removed while the motion is pending, they may need to file a separate request for a stay of removal.

A stay asks the court or agency to pause removal proceedings while the motion is pending. This is especially important in urgent cases where ICE may execute the removal order before the court rules on the motion.

What happens after the motion is filed

After the motion is filed, the immigration court or the BIA reviews it and issues a decision. Processing times vary depending on the court, the complexity of the motion, whether the person is detained, and whether removal is imminent.

If the motion is granted, the case is reopened. That does not automatically mean the person wins the underlying immigration relief. It means the case returns to active proceedings so the new evidence or legal issue can be considered.

If the motion is denied, the original removal order remains in effect. Depending on where the motion was filed and how it was decided, the person may be able to appeal or seek review in federal court. These options are deadline-sensitive and should be assessed immediately.

Motions to reopen filed from outside the United States

Some people who have already been removed may still be able to file a motion to reopen from outside the United States, depending on the facts, the jurisdiction, and the legal basis for the motion.

These cases can be difficult because the person is outside the country, evidence may be harder to gather, and the legal rules around post-departure motions have been heavily litigated. Changed country conditions motions can be especially relevant where the person can now document danger or changed circumstances in the country of removal.

Because the law in this area can vary by circuit and case history, anyone considering a motion from outside the U.S. should get case-specific legal advice before filing.

How a family or immigration lawyer can help

A motion to reopen is one of the more technical filings in immigration law. It requires a strong legal basis, careful deadline analysis, persuasive evidence, and often a separate stay strategy.

An immigration attorney can review the original court record, identify possible grounds for reopening, assess deadline exceptions, prepare affidavits and evidence, draft the motion, and file any stay request needed to reduce the risk of removal while the motion is pending.

Marble’s immigration attorneys handle motion to reopen matters with transparent flat-fee pricing and practical guidance. If you are considering reopening a case, it is usually best to seek legal advice as early as possible because deadlines and removal risks can move quickly.

Final thoughts

A motion to reopen can be powerful, but it is not simple. It can create a path back into immigration proceedings when new evidence, changed country conditions, lack of notice, ineffective assistance, or another serious issue justifies reopening the case.

The strongest motions are specific, well-documented, timely, and grounded in a recognized legal basis. Because a denied motion may leave the removal order in place, preparation matters. If you or someone in your family is considering a motion to reopen, getting legal guidance early can help determine whether the motion is realistic and how to protect against removal while it is pending.