Motion to Reopen: Deadlines, New Evidence, and Exceptions

EOIR’s current Policy Manual explains that a motion to reopen asks the immigration court to reopen proceedings after a decision so the Immigration Judge can consider new facts or evidence. The motion must identify the facts to be proven and support them with affidavits or other evidentiary material.

Reopening is therefore evidence driven. It is not simply a request that the judge rethink the same record.

Under INA §240(c)(7) and 8 C.F.R. §1003.23, the general rule is one motion to reopen filed within 90 days of the final order, subject to statutory and regulatory exceptions. The procedural posture matters because motions after a BIA decision may belong before the Board under 8 C.F.R. §1003.2 instead.

Calculate the deadline from the correct final administrative order and confirm which tribunal currently has motion jurisdiction.

Section 1003.23 requires material evidence that was not available and could not have been discovered or presented at the earlier proceeding. A motion that merely repackages evidence already in the record is vulnerable.

Explain when the evidence arose, when counsel obtained it, why it could not reasonably have been submitted earlier, and how it changes the result.

EOIR instructs that when reopening is sought to pursue relief, the motion ordinarily should include the application and supporting documents when an application is required. This allows the judge to evaluate prima facie eligibility rather than reopen for a speculative future filing.

Address fees, biometrics, bars, and discretionary issues as appropriate.

Time and numerical limitations do not apply in the same way to qualifying motions seeking asylum, withholding, or CAT protection based on materially changed country conditions that arose after the prior proceeding and could not previously have been presented.

Distinguish changed country conditions from changed personal circumstances and provide comparative evidence showing what actually changed.

Matter of Lozada supplies the familiar administrative framework for ineffective-assistance claims, including affidavit requirements, notice to prior counsel, and complaint-related steps or explanation. Federal courts also apply equitable tolling principles where diligence and extraordinary circumstances are established.

Do not treat ineffective assistance as a bare allegation. Build both the deficiency record and prejudice or material consequence.

Courts recognize equitable tolling in appropriate motion-to-reopen cases where the respondent pursued rights diligently and an extraordinary circumstance prevented timely filing. The precise standard is governed by circuit law and the type of motion.

Provide a dated diligence chronology rather than relying on conclusory statements that the respondent acted quickly.

A conviction vacated for a qualifying procedural or substantive defect may undermine a removal ground or relief bar. The reopening motion should include the complete post-conviction record and explain the federal immigration effect under Matter of Pickering or related precedent.

Do not assume the state order speaks for itself.

Motions to reopen an in absentia order are governed by INA §240(b)(5)(C) and specific regulations, with different time rules for exceptional circumstances, lack of notice, or custody. EOIR addresses those motions separately in Policy Manual §4.9.

Use the specialized rule rather than the ordinary 90-day framework when seeking rescission of an in absentia order.

Certain time and number restrictions do not apply in the same manner when DHS joins reopening. A request for DHS joinder should present the equities, legal change, relief eligibility, procedural history, and reason reopening serves efficient adjudication.

DHS agreement should be documented clearly.

Immigration Judges and the BIA have regulatory authority to reopen on their own motion, but that extraordinary mechanism is distinct from meeting the statutory reopening requirements and has significant limits on reviewability.

A filing should lead with available statutory or equitable grounds rather than treat sua sponte reopening as a substitute for an otherwise untimely motion.

A pending motion to reopen does not universally create an automatic stay. EOIR’s current Policy Manual separately describes discretionary stays in matters within Immigration Judge or BIA jurisdiction.

Evaluate stay procedure at the same time as reopening, especially where DHS may execute a final order quickly.

If the Immigration Judge issued the final order and no BIA appeal changed that posture, the motion may belong with the immigration court. If the BIA last decided the case, motion practice generally shifts to the Board.

Misfiling can consume critical time and does not guarantee protection from a deadline.

Current BIA precedent in Matter of D-E-B-, 29 I&N Dec. 83 (BIA 2025), treats a supplemental filing raising fundamentally different claims from the original reopening motion as a separate motion. That can trigger independent time and number problems.

Plan the theory comprehensively before filing and do not assume every later supplement relates back.

Include a procedural timeline, final orders, proof of service, affidavits, new evidence, legal authority, relief application where required, and proposed disposition. Explain materiality and procedural exceptions expressly.

A complete packet reduces the risk that the court denies reopening because eligibility remains speculative.

When reopening is requested to pursue relief, the motion should establish more than the existence of a new application. Address the threshold statutory requirements, major bars, and facts supporting a favorable result sufficiently to show that reopening would not be futile.

The depth required depends on the relief and governing precedent, but conclusory eligibility assertions are risky.

For discretionary relief, address serious negative factors that the government or judge is likely to raise. A motion that ignores convictions, prior fraud, missed hearings, or other adverse history may fail to demonstrate that reopening serves a meaningful purpose.

Pair rehabilitation and positive equities with candid treatment of the adverse record.

Confirm when and how the final order was served, whether counsel remained of record, and whether there was a mailing problem. Timeliness calculations and equitable tolling arguments often turn on the respondent’s actual procedural history.

Preserve envelopes, ECAS notices, counsel correspondence, and declarations.

Ineffective-assistance claims can require an affidavit describing the agreement with prior counsel, notice to former counsel, and a disciplinary complaint or explanation. Those steps can take time and should begin immediately when ineffective assistance is discovered.

Where circuit law modifies strict Lozada application, cite that controlling authority.

For equitable tolling, list when the respondent learned of the problem, sought records, consulted attorneys, obtained the file, pursued post-conviction relief, and prepared the motion. Explain gaps with evidence.

A chronological exhibit can make the diligence showing easier to assess.

Current country reports alone do not establish that conditions changed. Compare conditions at the time of the original hearing with the new evidence and identify the material development that creates or strengthens the protection claim.

Personal developments should be linked to genuine country changes where the statutory exception requires changed country conditions.

Modern motion practice can involve respondents who have already been removed. The effect of departure and the tribunal’s authority depend on governing statutes, regulations, and circuit precedent.

Do not assume removal makes reopening impossible without checking current law in the relevant jurisdiction.

Specify whether the case should return for a new merits hearing, consideration of a particular application, termination based on changed conviction status, or another defined purpose. Attach the application or key evidence needed for the next step.

A focused requested disposition helps distinguish reopening from a request for indefinite reconsideration.

When the Board issued the last administrative decision, reopening is generally governed by 8 C.F.R. §1003.2 and the Board Practice Manual rather than the Immigration Judge provision. The concepts are similar but filing location, procedural history, and motion captions must match the tribunal.

Confirm where the record is located before filing.

The regulations can bar reopening for relief that was fully explained and could have been sought earlier unless circumstances later changed. A motion should address prior advisals, eligibility at the earlier stage, and the event that made the application newly available.

This is especially important for adjustment, cancellation, and protection claims that appear facially similar to options discussed before the original order.

A motion based on ineffective assistance, missed notice, or overlooked evidence should be grounded in the actual EOIR record. Request the file or electronic record promptly and compare it with counsel’s file and the client’s recollection.

An accurate record can reveal that a deadline was different, an application was never filed, or a notice was served in a manner the client did not know.

Untimely or number-barred motions often fail because the filing spends pages on merits but only a paragraph on why the tribunal may reach them. Identify the statutory exception, equitable tolling theory, joint posture, or in absentia rule at the beginning.

Once the procedural gateway is established, explain the new merits evidence.

A motion to reopen is a new-evidence mechanism governed by strict time, number, jurisdiction, and evidentiary rules. The ordinary Immigration Judge rule is generally one motion within 90 days, but important exceptions exist for changed country conditions, in absentia cases, joint motions, equitable tolling, and other circumstances.

Identify the correct tribunal, exception, new evidence, and requested relief before filing.