Motion to Reopen in Immigration Court: When to Reopen, When to Reconsider

The distinction turns on one question: are you bringing new facts, or are you arguing the tribunal got the law wrong on the existing record?

A motion to reopen asks the immigration judge (IJ) or the Board of Immigration Appeals (BIA) to reexamine a case in light of new, material evidence or changed circumstances that were not part of — and generally could not have been presented in — the original proceeding. Think of a vacated criminal conviction, a new basis for relief, a marriage that creates a new petition, or deteriorating conditions in the country of removal. The motion must be supported by affidavits or other evidentiary material and must show that the new evidence is material and was previously unavailable.

A motion to reconsider, by contrast, takes no new evidence at all. It argues that the decision was legally or factually wrong based on the record that already exists — a misapplied statute, an overlooked precedent, a clear error in how the facts in the record were weighed. A motion to reconsider must specify the errors of law or fact in the prior decision and be supported by pertinent authority. If you find yourself attaching new declarations, you almost certainly want a motion to reopen, not a motion to reconsider.

A common trap: when a criminal conviction has been vacated, modified, or otherwise disturbed, the correct vehicle is a motion to reopen (new fact), not a motion to reconsider. Getting this wrong wastes one of your limited motions.

Both motions are governed by tight numerical and time limits, and these limits are enforced strictly — tribunals routinely deny motions filed even a day late.

As a general framework, a motion to reconsider is due within 30 days of the final administrative order and a motion to reopen within 90 days of it. Before the Board, 8 CFR 1003.2(b)(2) counts the 30 days from the mailing of the Board's decision and 8 CFR 1003.2(c)(2) counts the 90 days from the date the final administrative decision was rendered; before the Immigration Judge, 8 CFR 1003.23(b)(1) counts both periods from the date of entry of the final administrative order. A party is generally limited to one motion to reconsider and one motion to reopen. The February 2026 rule changes that reshaped BIA briefing left these windows alone, so the numbers above are the ones to calendar; the exceptions in the next section are where they bend. Confirm the exact date against the regulations and any controlling order in your case the moment an adverse decision issues.

A critical practice point: the Board calculates timeliness by date of receipt at the clerk's office, not the date you mail or dispatch the filing. The 'mailbox rule' does not save a late motion. Build in buffer time.

Several well-established exceptions can lift the deadline or the one-motion limit, and identifying them is often where a motion is won or lost.

Changed country conditions. A motion to reopen to apply for asylum, withholding of removal, or protection under the Convention Against Torture is not subject to the standard time and numerical limits if it is based on changed conditions in the country of nationality or removal, where the supporting evidence is material and was not available and could not have been presented at the earlier hearing. This is the single most important exception in asylum-driven practice — but it demands a rigorous, side-by-side showing of what changed and why the evidence is new.

In absentia orders. A motion to reopen to rescind an in absentia removal order has its own rules, including reopening based on lack of proper notice or exceptional circumstances, with deadlines that differ from the ordinary motion to reopen.

Other carve-outs. Joint motions agreed to by DHS, certain VAWA-related motions, sua sponte reopening by the tribunal, and equitable tolling of the deadline in appropriate circumstances can each provide a path when the ordinary bars would otherwise apply. Each has its own evidentiary and procedural demands, so the threshold legal analysis matters as much as the underlying facts.

A persuasive motion is not a letter — it is a brief with a record. At minimum, a strong motion to reopen pairs a clear statement of the new, material, previously unavailable evidence with the affidavits and exhibits that prove it, and it ties that evidence to a specific, viable form of relief. It anticipates the discretionary question — why the tribunal should exercise its discretion to reopen — not just the legal eligibility question.

A strong motion to reconsider does the opposite: it stays inside the existing record and shows, with precise citations, where the decision misread the statute, ignored binding precedent, or made a clear factual error. Vague disagreement with the outcome is not enough; you must identify the error and supply the controlling authority that compels a different result.

For both, accurate citation is non-negotiable. A tribunal that catches a miscited or mischaracterized case loses confidence in the entire motion. This is exactly where attorney workload and motion quality collide — the research and assembly are time-consuming, and the margin for citation error is zero.

Motions and appeals are not interchangeable, and the strategic choice depends on where the case stands.

If the IJ's decision is recent and you believe the judge erred, a direct appeal to the BIA may be the stronger move, and filing a motion does not pause the appeal clock. If you are past the appeal window but have genuinely new evidence, a motion to reopen may be your remaining avenue. If the legal error is plain on the existing record and the deadline is still open, a motion to reconsider can be faster and cheaper than a full appeal. In some postures, attorneys file in combination or in sequence — but each filing consumes a limited allotment, so sequencing should be deliberate.

Because the analysis is fact-specific, map the procedural posture first: identify the last final order, the body that issued it (IJ, BIA, or USCIS), the available deadlines, and whether any exception applies — then pick the instrument.

ImmAppeal does not draft motions to reopen or motions to reconsider, whether they are filed with the Immigration Judge or with the Board. ImmAppeal drafts one kind of brief: the respondent's brief in an appeal to the Board of Immigration Appeals (BIA) from an Immigration Judge's decision in removal proceedings, before the Board has decided that appeal. If an Immigration Judge has denied a motion to reopen, the appeal of that denial to the Board is an appeal ImmAppeal drafts; the motion itself is not.

If the appeal can still be filed on time and an appeal is the right vehicle, ImmAppeal can draft that brief typically in under 30 minutes, with its citations checked against our library of published decisions and a verification report that flags anything the check cannot confirm. If the case needs a motion instead (for example, because the time to appeal has passed, the Board has already decided, or new evidence must be presented; while an appeal is pending, new evidence goes to the Board by a motion to remand), the motion has to be drafted another way.

Choosing the vehicle, confirming the deadline, and reviewing any draft remain the attorney's work. ImmAppeal produces a draft only and is not legal advice.