Motion to Reconsider: Correcting Legal or Factual Error

A motion to reconsider asks the Immigration Judge or BIA to reexamine a prior decision because of an error of law or fact, or an intervening change in law. Unlike reopening, reconsideration is based on the existing record and does not seek a new hearing to present previously unavailable facts.

Choosing the wrong motion can trigger deadline and number problems.

INA §240(c)(6) and 8 C.F.R. §1003.23 generally require a motion to reconsider an Immigration Judge’s final administrative order within 30 days. The regulations also generally limit the party to one reconsideration motion.

Calculate the deadline from the correct order and tribunal.

EOIR’s current Policy Manual requires the motion to state the errors of fact or law in the prior decision with appropriate citation to authority and the record. A generic assertion that the judge reached the wrong result is insufficient.

Organize the filing by specific holding, record citation, legal error, and requested correction.

New affidavits and newly discovered evidence generally belong in reopening, not reconsideration. If both new evidence and legal error exist, separate the theories and comply with each motion’s independent time and number limits.

EOIR warns that compound motions remain subject to the rules governing each component.

If a Supreme Court, circuit, Attorney General, or BIA decision changes the controlling legal rule, identify the old holding, new authority, why the new law applies, and the precise portion of the decision affected.

Do not merely attach the new case; explain the legal path from the precedent to the requested disposition.

A decision may misstate testimony, overlook an admitted exhibit, confuse dates, or attribute a concession that was never made. Cite the hearing transcript, audio timestamp where appropriate, exhibit, or filing that demonstrates the error.

If the correcting fact was not previously in the record, reopening may be necessary instead.

Identify the statute, regulation, or precedent the Immigration Judge applied incorrectly. Explain the standard of proof, legal test, or burden allocation and then show how the existing record produces a different result under the correct rule.

Focused legal analysis is stronger than rearguing every point from the merits brief.

After an Immigration Judge decision with no BIA appeal, reconsideration can belong before the immigration court. After a BIA decision, the corresponding motion ordinarily belongs before the Board under 8 C.F.R. §1003.2.

Confirm jurisdiction before filing because a timely motion sent to the wrong tribunal can create serious deadline risk.

A party dissatisfied with an Immigration Judge decision should separately evaluate the 30-day BIA appeal deadline. Filing a reconsideration motion does not necessarily extend the appeal deadline or preserve issues that should have been appealed.

Coordinate both deadlines from the decision date.

Reconsideration corrects legal or factual error in the existing record. Reopening presents material new evidence. A case can justify one, the other, or both, but each component must independently comply with governing requirements.

Label the filing accurately and avoid an evidentiary appendix that silently turns reconsideration into reopening.

Because a party generally receives one reconsideration motion, counsel should identify all preserved dispositive errors before filing. A rushed motion on a minor point can consume the numerical opportunity before a more important legal error is recognized.

Review the full decision and record immediately.

Current EOIR procedures provide response time for motions unless the Immigration Judge specifies otherwise. Anticipate DHS’s likely response on waiver, preservation, harmless error, and procedural bars.

Address obvious procedural defenses in the opening motion rather than saving them for reply.

Like reopening, reconsideration and a stay of removal are separate procedural questions. EOIR allows discretionary stays in matters within adjudicator jurisdiction under specified circumstances.

Assess removal risk immediately when a final order is executable.

A precise reconsideration motion can give the agency an opportunity to correct a misstatement or apply intervening precedent and can sharpen the administrative record. But counsel should not rely on reconsideration to cure a missed appeal unless governing law actually permits that result.

Track appellate and motion deadlines independently.

Grant or denial of reconsideration can produce new appeal or motion issues depending on procedural posture. Record the decision date, service method, and current final order.

Do not assume the procedural clock returns to its original posture automatically.

Even where a decision contains a legal or factual mistake, the government may argue the error was harmless because another independent ground supports the same result. A reconsideration motion should explain why correcting the identified error changes removability, relief eligibility, discretion, or the disposition.

This prevents the court from denying on harmlessness without confronting the consequence.

If reconsideration concerns an argument raised before decision, cite the filing or hearing point where it was presented. If an intervening change in law creates a new argument, explain why reconsideration is procedurally proper despite the issue not previously existing.

Preservation analysis is especially important if later federal-court review is anticipated.

When the Immigration Judge issues an oral decision, counsel should obtain or carefully note the reasoning immediately because the reconsideration clock runs quickly. Confirm the exact factual findings, cited authorities, and alternative holdings.

A motion based on memory rather than the recorded decision risks attacking a rationale the judge did not actually use.

Do not merely state that a new BIA or circuit case changed the law. Identify which element, burden, standard, or discretionary rule changed and apply it to findings already made in the record.

This distinguishes reconsideration from a request to reopen for a new factual showing.

EOIR treats reopening and reconsideration components according to their own limits even when filed together. A motion submitted on day 60 may be timely for reopening but untimely for reconsideration absent an applicable doctrine.

State each basis, deadline, and exception independently.

Because the ordinary rule permits only one motion to reconsider, counsel should review the entire decision and recent law before spending that opportunity. Later discovery of another legal error does not automatically create a second motion right.

Where an exception or sua sponte request is invoked, distinguish it expressly from the ordinary statutory motion.

A strong structure is: prior holding, controlling rule, record fact, error, and requested correction. Repeat that sequence for each independent error. This allows the adjudicator to reconsider discrete holdings without rereading the full merits brief.

Attach only authorities or record materials genuinely needed.

If a direct appeal is already pending, jurisdiction may lie with the Board rather than the Immigration Judge. If reconsideration is filed before appeal, counsel should understand how the subsequent appeal affects motion jurisdiction.

Consult current EOIR filing guidance before making parallel submissions.

The reconsideration deadline is short. Keep the Immigration Judge’s written order, certificate or record of mailing, and hearing notes showing the date of any oral decision. If there is a dispute about service, document it immediately rather than waiting until the deadline has passed.

Good internal docketing should create the reconsideration and appeal deadlines on the same day the decision is issued.

Reconsideration is especially appropriate where the adjudicator overlooked binding precedent or a new decision changes the legal rule. Verify that the cited authority remains controlling and has not been limited, vacated, superseded by regulation, or displaced by a later Attorney General decision.

Currentness matters more than volume of citations.

If the Immigration Judge denied relief on both statutory eligibility and discretion, correcting only one holding may not alter the outcome. Identify every alternative ground that independently supports the decision and explain why reconsideration changes each necessary component.

Otherwise the adjudicator can deny the motion even after accepting one claimed error.

When alleging that the decision misstated testimony or overlooked evidence, cite the exhibit page, transcript line, filing page, or hearing segment as precisely as possible. This permits the judge to verify the error without reconstructing the entire case.

A reconsideration motion should be easier to check than the original merits submission.

A motion should focus on holdings contained in the decision under review. Asking the judge to reconsider an issue never reached, or to decide a new claim requiring additional evidence, can blur the distinction between reconsideration, reopening, and a new application.

Quote or accurately summarize the challenged holding before explaining the error.

Ask the adjudicator to vacate a particular finding, reconsider a charge, reopen briefing, grant relief, or issue another legally available disposition. A motion that identifies error without explaining the requested correction leaves the practical result uncertain.

Connect each claimed error to the order that should replace the prior ruling.

Reconsideration is a narrow existing-record remedy for specified legal or factual error and changes in controlling law. The general Immigration Judge deadline is 30 days and the numerical limit is usually one.

Use precise record citations and controlling authority, and keep reconsideration distinct from reopening and direct appeal.