A motion to reopen is a request asking an immigration court to reopen proceedings after an Immigration Judge has already issued a decision, so that the judge can consider new facts or evidence in the case. Under rules set by the Executive Office for Immigration Review (EOIR), such a motion is granted only under certain conditions, and filing is subject to both time limits and numerical limits.

How It Works

As EOIR describes, a motion to reopen is filed with a cover page marked "MOTION TO REOPEN" and must satisfy applicable requirements and deadlines. The motion itself generally sets out the new facts intended to be established at a reopened hearing and is supported by affidavits or other evidence (8 C.F.R. § 1003.23(b)(3)).

EOIR notes that a motion to reopen is not granted unless the judge is satisfied that the evidence offered is material and was not available and could not have been discovered or presented at an earlier stage of the proceedings (8 C.F.R. § 1003.23(b)(3)). Where the motion is based on eligibility for a form of relief, it is not granted when the respondent's opportunity to apply for that relief was fully explained and an opportunity to apply existed earlier — except where the relief is sought based on circumstances that arose after that earlier stage.

Under EOIR rules, documents commonly filed alongside a motion to reopen include: Form EOIR-28 or EOIR-61 — when the respondent is represented by, or received assistance from, a practitioner; a change-of-address form (EOIR-33/IC) — so the court has a current address on file; and, where applicable, a filing fee or a fee waiver request, depending on the nature of the motion. Where the motion is based on eligibility for relief, a copy of the underlying application together with all supporting documents is generally attached, if such an application is ordinarily required. Broader context on how immigration court proceedings operate is covered in the section on immigration court and removal proceedings.

Deadlines, Numerical Limits, and Exceptions

As a general rule under EOIR, a motion to reopen is filed within 90 days of the date of the Immigration Judge's final order (8 C.F.R. § 1003.23(b)(1)). Responses to a motion are filed within 10 days of the court's receipt of the motion, unless the judge sets a different schedule. Each party is ordinarily limited to one motion to reopen (8 C.F.R. § 1003.23(b)(1)), though several exceptions to both the time limit and the numerical limit exist (8 C.F.R. § 1003.23(b)(4)).

EOIR identifies the following exceptions, among others:

  • Changed country conditions. The time and numerical limits do not apply to a motion based on asylum, withholding of removal, or protection under the Convention Against Torture when the motion is grounded in changed conditions in the country of removal and the evidence is material and was not previously available (8 C.F.R. § 1003.23(b)(4)(i)).
  • Joint motions. Motions agreed upon by all parties and filed jointly are not subject to time or numerical limits (8 C.F.R. § 1003.23(b)(4)(iv)).
  • DHS motions. In removal proceedings, the Department of Homeland Security (DHS) is not subject to time or numerical limits; in deportation or exclusion proceedings, DHS is subject to those limits except where the basis is fraud in the original proceeding or a crime providing grounds to terminate asylum (8 C.F.R. § 1003.23(b)(1)).
  • Motions filed before September 30, 1996 do not count toward the one-motion limit.
  • Battered spouses, children, and parents. Separate rules apply to certain motions filed by these individuals (INA § 240(c)(7)(C)(iv)).

What is a motion to reopen?

As EOIR defines it, a motion to reopen is a request asking an immigration court to reopen proceedings following an Immigration Judge's decision so that the judge can consider new facts or evidence in the case. The motion must set out those new facts and be supported by affidavits or other evidentiary materials (8 C.F.R. § 1003.23(b)(3)).

What is the deadline to file a motion to reopen?

As EOIR explains, the general rule is that a motion to reopen is filed within 90 days of the date of the Immigration Judge's final order (8 C.F.R. § 1003.23(b)(1)). For cases decided by a judge before July 1, 1996, the motion was required to be filed no later than September 30, 1996. Separate exceptions to this deadline exist.

How many motions to reopen are allowed?

Under EOIR rules, each party is ordinarily limited to one motion to reopen (8 C.F.R. § 1003.23(b)(1)). A number of exceptions apply — among them, joint motions and motions based on changed country conditions are not subject to a numerical limit (8 C.F.R. § 1003.23(b)(4)).

Does a motion to reopen stop removal?

EOIR describes an automatic stay in connection with a specific type of motion — a motion to reopen to rescind an order entered in absentia in removal proceedings. In that situation, the respondent's removal is automatically stayed until the judge rules on the motion (INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii)). For a motion to rescind an in absentia order on the basis of exceptional circumstances, the filing period is 180 days from the order; for motions based on lack of proper notice or on the respondent's detention by federal or state authorities through no fault of their own, the motion may be filed at any time.