Motions to Reopen and Reconsider in Immigration Proceedings

Motions to reopen and motions to reconsider are two distinct procedural tools that allow parties in immigration proceedings to challenge orders issued by immigration judges and the Board of Immigration Appeals. These mechanisms are governed by federal regulations and the Immigration and Nationality Act, and they serve as critical checkpoints before a case proceeds to federal court review. Understanding the differences between them — and the strict procedural limits each carries — is essential to evaluating what post-order options remain in a given case.

Definition and scope

A motion to reopen asks a tribunal to reconsider its prior order based on new facts, new evidence, or changed circumstances that were not part of the original record. A motion to reconsider asks the same tribunal to correct a legal or factual error in the original decision, based entirely on the existing record — no new evidence is introduced.

Both motions are authorized under 8 C.F.R. § 1003.23 (for Immigration Courts) and 8 C.F.R. § 1003.2 (for the Board of Immigration Appeals). The Executive Office for Immigration Review (EOIR), the federal agency that administers the immigration court system, oversees both processes.

The scope of these motions extends to removal proceedings, asylum adjudications, bond decisions, and other matters arising within the EOIR framework. Motions filed with USCIS in non-adversarial proceedings follow a separate regulatory structure under 8 C.F.R. § 103.5, administered by the USCIS adjudication process.

How it works

The procedural mechanics for motions filed before an Immigration Judge or the BIA follow a structured framework:

1. Filing deadline — Motion to Reopen: Must be filed within 90 days of the final administrative order, per 8 C.F.R. § 1003.23(b)(1). The BIA's parallel rule under 8 C.F.R. § 1003.2(c)(2) also sets a 90-day limit.
2. Filing deadline — Motion to Reconsider: Must be filed within 30 days of the final order at the Immigration Court level, and within 30 days at the BIA under 8 C.F.R. § 1003.2(b)(2).
3. Numerical limits: Generally, 1 motion to reopen and 1 motion to reconsider are permitted per party per proceeding, absent exceptional circumstances.
4. Content requirements — Reopen: The filing must include affidavits, documentary evidence, or other material establishing that the new evidence is material and was not available or discoverable at the time of the original hearing.
5. Content requirements — Reconsider: The filing must specify the errors of fact or law in the prior decision and cite supporting legal authority. New evidence cannot be submitted.
6. Automatic stay: Filing a motion does not automatically stay a removal order. A separate request for a stay of removal must typically accompany the motion, and the tribunal has discretion to grant or deny it.
7. Decision: The tribunal issues a written order granting or denying the motion. A denial is itself appealable — a denied BIA motion may be challenged via petition for review in the appropriate federal circuit court.

Common scenarios

Motions to reopen arise in a range of recurring factual and legal contexts:

• In absentia removal orders: When a respondent failed to appear at a hearing, a motion to reopen may be filed if the respondent demonstrates lack of notice or exceptional circumstances beyond their control (8 U.S.C. § 1229a(b)(5)(C)). This is among the most frequently litigated grounds.
• Changed country conditions: For individuals who received adverse asylum or withholding of removal decisions, evidence of materially changed conditions in the country of origin can support reopening. The 90-day deadline is waived when changed country conditions form the basis of the claim (8 C.F.R. § 1003.23(b)(4)(i)).
• New relief eligibility: A respondent who becomes eligible for a new form of relief after the original order — such as an approved immediate relative petition — may seek reopening to apply for adjustment of status.
• Ineffective assistance of counsel: Under the BIA's framework established in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), a respondent may move to reopen based on deficient performance by a prior representative. The motion must meet specific procedural requirements, including filing a bar complaint or explaining why one was not filed.
• Motions to reconsider — Legal error: If the original decision misapplied the categorical approach to crimes involving moral turpitude or aggravated felony classifications, a motion to reconsider on legal grounds may be appropriate.

Decision boundaries

The distinctions between these two motions carry significant practical consequences, particularly when evaluating what relief is available after an order has become final.

Reopen vs. Reconsider — Core contrast:

Sua sponte reopening — where the Immigration Judge or BIA acts on its own initiative — exists as a residual authority under 8 C.F.R. § 1003.23(b)(1) and 8 C.F.R. § 1003.2(a), but federal circuit courts have generally held that sua sponte decisions are discretionary and unreviewable, as articulated in cases across multiple circuits addressing the limits of federal court immigration jurisdiction.

The due process rights framework under the Fifth Amendment applies to these proceedings, but it does not guarantee a favorable outcome — it requires only that the process itself comport with minimum procedural standards. Respondents who are detained face additional constraints, as immigration detention legal standards affect practical access to filing deadlines and evidence gathering.

Joint motions to reopen — filed by both the respondent and the government — are treated more favorably and are often filed when prosecutorial discretion is exercised to terminate or administratively close proceedings.

References

• 8 C.F.R. § 1003.2 — Motions before the Board of Immigration Appeals
• 8 C.F.R. § 1003.23 — Motions before Immigration Judges
• 8 C.F.R. § 103.5 — USCIS Motions to Reopen or Reconsider
• 8 U.S.C. § 1229a — Removal Proceedings (INA § 240)
• Executive Office for Immigration Review (EOIR) — U.S. Department of Justice
• Board of Immigration Appeals Practice Manual — EOIR
• Immigration Court Practice Manual — EOIR
• [Immigration and Nationality Act — U.S. House Office of the Law Revision Counsel](https://uscode.house.gov/browse/prelim@