Introduction to Motions in Removal Proceedings

Individuals who have received an adverse decision from an immigration judge, the Board of Immigration Appeals (BIA), or the Department of Homeland Security (DHS) are not without recourse. Two of the most powerful—yet procedurally demanding—tools available are the motion to reopen and the motion to reconsider. These filings offer a statutory avenue for challenging final orders of removal, deportation, or denial of relief, but they operate under strict deadlines, high evidentiary standards, and a legal landscape that is constantly shifting. For someone facing removal, understanding the differences between these motions, their respective requirements, and the strategic implications of each can mean the difference between a second chance and a final departure order.

Immigration courts handled over half a million cases in a single fiscal year, and the backlog continues to grow. Motions to reopen and reconsider are not merely procedural formalities; they are substantive legal arguments that often determine whether a noncitizen obtains the relief they never had the opportunity to present. This article provides a comprehensive examination of each motion, explains the timing rules, and offers insight into how attorneys and advocates can use these tools effectively in deportation defense.

Understanding the Motion to Reopen

A motion to reopen is a request that the immigration court or the BIA revisit a final order because of new facts, changed circumstances, or evidence that was not available at the time of the original decision. The purpose is not to relitigate the entire case, but to correct an outcome that would have been different if the new information had been considered. The motion must state the new facts and be supported by affidavits or other documentary evidence.

Time Limits and Exceptions

The general rule is that a motion to reopen must be filed within 90 days of the final administrative order. For a motion filed with the BIA, the 90-day period runs from the date of the BIA decision. If the motion is filed with an immigration judge after a final order has been entered and no appeal was taken, the clock starts from the date the judge’s order became final. There are important exceptions: motions to reopen based on changed country conditions, ineffective assistance of counsel, or certain humanitarian reasons may be filed beyond the 90-day limit, though the motion must still be timely in the sense that it is filed within a reasonable time after the new circumstances arise.

What Qualifies as New Evidence?

To succeed on a motion to reopen, the new evidence must be material, not previously available, and likely to change the outcome of the case. Courts have defined “material” as evidence that would alter the result—for example, a new asylum claim based on a documented change in country conditions, or evidence that a prior marriage was bona fide. The evidence cannot merely be cumulative or corroborative of previously presented facts. Additionally, the movant must demonstrate that the evidence was not available and could not have been discovered or presented at the prior hearing. The standard is strict, and a mere change in personal circumstances—such as a new family relationship—is generally insufficient unless it is tied to a qualifying basis for relief.

Number Limit

Under long-standing regulations, a noncitizen is generally limited to one motion to reopen and one motion to reconsider. This “number bar” is a critical strategic consideration. Filing a weak or premature motion may waste the single opportunity. The BIA may accept a successive motion only if it is filed jointly with DHS or if it falls within a narrow exception, such as a motion to rescind an in absentia order based on exceptional circumstances. Attorneys therefore counsel clients to wait until strong, case-dispositive evidence is available before pulling the trigger.

Effect on Removal Proceedings

Filing a motion to reopen does not automatically stay removal. Unless the immigration judge or the BIA expressly grants a stay, DHS may execute the removal order at any time. Because 8 CFR § 1003.2 governs BIA motions and does not provide an automatic stay, a separate motion for a stay of removal is typically required. This is a critical tactical step, and the failure to request a stay can result in removal before the motion is even adjudicated.

Understanding the Motion to Reconsider

A motion to reconsider asks the authority that issued the decision to review it for legal error. Unlike a motion to reopen, it does not rely on new facts. Instead, it asserts that the decision was based on an incorrect interpretation of law, a misapplication of precedent, or a failure to address a key legal argument. The motion must specify the errors of law or fact and must be supported by appropriate legal authority. The BIA has held that a motion to reconsider is not a vehicle to reargue the same points that were already rejected.

Filing Deadline and Number Limits

The deadline for a motion to reconsider is even tighter: it must be filed within 30 days of the final order. The same number limit applies—generally only one such motion is permitted. If a party has already filed a motion to reconsider, they cannot file a second one unless it is a joint motion or falls within a specific regulatory exception. Because of the short timeline, it is essential that counsel promptly review the decision and draft the motion as soon as possible. Missing the 30-day window is almost always fatal; the BIA has no authority to accept a late motion unless there is a manifest injustice or a clear regulatory basis for reopening the time period.

Grounds for Reconsideration

Common grounds include: the immigration judge applied the wrong legal standard for asylum (e.g., using a “clear probability” instead of “well-founded fear”), the judge ignored binding circuit precedent, or the decision failed to consider a statutory eligibility factor. A motion to reconsider can also point out errors in the balancing of equities in a cancellation of removal case. The movant should cite to the specific portion of the decision that is allegedly erroneous and supply legal authority that contradicts that portion. It is not enough to claim the result was wrong; the motion must demonstrate how the decision deviates from controlling law.

Relation to Appeals

A motion to reconsider is distinct from an appeal to the BIA. An appeal must be filed within 30 days of the immigration judge’s oral or written decision, and it triggers a de novo review of the record. A motion to reconsider, on the other hand, is typically filed after an appeal has already been taken, or in lieu of an appeal when the time for appeal has passed. If a party has already appealed and the BIA has issued a decision, a motion to reconsider of that BIA decision must be filed within 30 days of the BIA’s order. Many practitioners advise that if the appeal is still viable, filing an appeal is generally preferable because it provides a broader review. However, if the deadline for appeal has passed, a motion to reconsider may be the only available remedy for correcting an obvious legal error.

Key Differences Between Motions to Reopen and Reconsider

The distinction between these motions is more than semantic—it drives the entire strategy of post-order relief. Below is a summary of the critical differences:

  • Basis for relief: Reopen requires new, material facts that were not available at the time of the hearing; reconsider requires a legal error in the decision itself.
  • Deadline: Reopen must generally be filed within 90 days; reconsider within 30 days.
  • Number limit: Both are generally limited to one motion each, though exceptions exist for changed country conditions, ineffective assistance of counsel, or joint motions.
  • Evidence: Reopen must include supporting affidavits and documentation; reconsider is focused on legal arguments and citations.
  • Standard of review: The BIA reviews a motion to reopen under a “clear error” standard regarding the new evidence, while a motion to reconsider is evaluated based on whether the original decision contained an error of law or fact.
  • Effect on removal: Neither motion automatically stays removal, but a stay request is particularly important when filing a motion to reopen because of the potential for new evidence to change the outcome.

Understanding these differences is essential because mixing up the legal basis can lead to a futile filing. A motion that seeks to reopen but relies on legal arguments without evidence will almost certainly be denied; a motion that seeks to reconsider but attempts to introduce new facts will be rejected as improperly styled.

Strategic Importance in Deportation Defense

Combining Motions

In some cases, the movant may seek to both reopen and reconsider the same decision. When appropriate, a single motion can be filed that includes alternative arguments: first, that the decision contained a legal error, and second, that new evidence warrants reopening. However, the BIA and courts treat each request separately, so the motion must clearly delineate the two. For example, a noncitizen who lost an asylum case because of a misunderstanding of the refugee definition may simultaneously argue that the legal standard was misapplied (reconsider) and that new country conditions evidence now shows a well-founded fear (reopen). Filing a “combined motion” preserves both arguments and maximizes the chance of relief.

Ineffective Assistance of Counsel Claims

A common basis for filing a motion to reopen is ineffective assistance of counsel. The BIA has recognized that incompetent or negligent representation by an immigration attorney can violate due process. To succeed on such a claim, the movant must comply with the strict requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), which requires: (1) an affidavit setting forth the agreement with counsel and the details of the alleged ineffectiveness; (2) proof that counsel was notified of the claim and given an opportunity to respond; and (3) evidence that a complaint was filed with the appropriate disciplinary authority. This is a high bar, but it can overcome the time and number bars if the movant can demonstrate that they were prejudiced by the attorney’s incompetence. Because the deadline for a motion to reopen is 90 days, it is critical to file such a motion as soon as the ineffectiveness is discovered. The Executive Office for Immigration Review’s (EOIR) guidance outlines the specific requirements for Lozada-based motions.

Changed Country Conditions

One of the most powerful exceptions to the time and number limits is for motions to reopen based on changed country conditions. If the noncitizen can demonstrate that conditions in their home country have materially changed since the time of their hearing, and that those changes are central to their claim for relief (such as asylum, withholding of removal, or relief under the Convention Against Torture), they may file a motion to reopen at any time. The BIA has emphasized that the change must be country-wide or at least region-specific, and it cannot be a change in personal circumstances. The evidence must be objective, such as human rights reports, news articles, or expert affidavits. A motion relying on changed country conditions must still be filed within a reasonable time after the change becomes known, but there is no fixed 90-day limit. This exception has become increasingly important in cases involving political upheaval, gang violence, or changes in government policy.

Judicial Review and Federal Court Options

If the BIA denies a motion to reopen or reconsider, the noncitizen may seek review in the appropriate United States Court of Appeals. Under the Immigration and Nationality Act, such review must be filed within 30 days of the BIA’s denial. However, the court’s standard of review is highly deferential; the BIA’s decision will be upheld unless it is arbitrary, capricious, an abuse of discretion, or contrary to law. Because of this narrow standard, motions to reopen and reconsider are often better positioned as a final administrative remedy before turning to litigation. Federal courts have also recognized that the BIA may not deny a motion to reopen solely on procedural grounds when there are constitutional concerns. Attorneys should consider the likelihood of success on merits before committing resources to a federal petition.

Practical Considerations for Filing

Gathering Evidence and Documenting Diligence

The success of a motion to reopen hinges on the quality of the new evidence. Affidavits must be detailed, sworn, and signed, and they should explain why the evidence was not available earlier. Supporting documents should be organized and clearly referenced in the motion. For a motion to reconsider, the legal arguments must be precise and well-cited, including mentioning controlling precedent from the circuit where the case arises. Both motions should include a cover page, a table of contents, and a certificate of service. Many pro se litigants fail because they do not understand the formatting requirements; it is advisable to consult the USCIS regulations for motions filed with DHS or the BIA practice manual for motions filed with the immigration courts.

Stays of Removal

Because removal can occur at any time after a final order, a separate motion for a stay of removal should be filed concurrently with the motion to reopen or reconsider. The BIA may grant a stay if it finds that the motion raises a substantial case on the merits and that there is a likelihood of success. The request for a stay must be specific and not merely form language. If the noncitizen is in detention, the stay must be filed quickly, and the immigration court may even issue a temporary administrative stay pending a decision on the motion. Failure to request a stay is one of the most common strategic errors, and it can result in the client being removed while the motion is pending.

Number Bar and Exceptions

As noted, a party is generally limited to one motion to reopen and one motion to reconsider. The BIA will not entertain a second motion unless it arrives through a joint filing with DHS, or it falls within a regulatory exception: a motion to reopen based on changed country conditions, a motion to rescind an in absentia order, or a motion based on ineffective assistance of counsel that meets the Lozada requirements. Some circuit courts have recognized additional exceptions, such as a motion filed while a petition for review is pending before the federal court, but the BIA’s regulations are strict. Before filing any motion, it is imperative to confirm that the number bar has not been exhausted.

Common Pitfalls and How to Avoid Them

Misidentifying the motion type. A motion that attempts to reopen on legal error grounds will fail because it lacks the required new evidence. Conversely, a motion that asks for reconsideration of facts will be denied because it does not identify a legal error. Attorneys must carefully analyze the underlying decision to determine the proper avenue.

Missing the deadline. The 90-day and 30-day deadlines are absolute, subject to only a few exceptions. Even one day late can be fatal. It is best to file early and to use courier or electronic filing if available. Do not rely on mail delivery alone.

Not requesting a stay. As stated, the filing of a motion does not automatically stay removal. A separate written motion for a stay must be submitted. If DHS has already scheduled removal, an emergency stay request may be filed with the immigration court or the BIA, or even with the circuit court if removal is imminent.

Failing to appeal simultaneously. If the 30-day deadline for an appeal has not yet passed, it may be more advantageous to file an appeal rather than a motion to reopen. An appeal triggers a broader review and does not count against the single-motion limit. Counsel should evaluate whether the appeal deadline is still open before filing a motion.

Conclusion

Motions to reopen and reconsider are indispensable tools in the arsenal of immigration defense, offering a statutory safety net for individuals who have been ordered removed. While both procedures require strict adherence to deadlines, evidence rules, and number limits, they provide the only administrative mechanism to correct errors or present new facts after a final order. Success depends on a thorough understanding of the regulations, strategic timing, and meticulous preparation of the motion with supporting evidence or legal arguments. Given the high stakes—removal from the United States, separation from family, and potential return to dangerous conditions—no motion should be filed without careful consideration and, whenever possible, the guidance of experienced immigration counsel. The stakes are too high for anything less than a fully informed, well-crafted submission. For those who meet the requirements, these motions can be a lifeline, opening the door to renewed consideration of their case and the possibility of a just outcome.