Motions to Reopen: Reopening a Removal Order or Immigration Case

Where to file: the immigration judge or the BIA

A motion to reopen goes to whichever body issued the last decision in the case.

• If the immigration judge's order was the final decision (no appeal was taken), the motion is filed with the immigration court that has administrative control over the record of proceedings (8 CFR 1003.23(b)(1)(ii)).
• If the BIA decided an appeal, a motion to reopen or reconsider the Board's decision is filed directly with the BIA (8 CFR 1003.2(g)(2)(i)).
• Once an appeal is filed with the BIA, the immigration judge no longer has jurisdiction, and a motion to reopen filed while the appeal is pending may be treated as a motion to remand and considered with the appeal (8 CFR 1003.2(c)(4)).

If a case was only administratively closed, the Practice Manual says the proper motion is a motion to recalendar, not to reopen. For how the Board handles these filings, see our explainer on motions under 8 CFR 1003.2 and the 8 CFR 1003.2 topic page.

Motion to reopen an immigration case: the 90-day and one-motion limits

As a general rule, a noncitizen may file one motion to reopen, and it must be filed within 90 days of the date of entry of the final administrative order of removal (INA § 240(c)(7)(A) and (C)(i); 8 CFR 1003.23(b)(1); 8 CFR 1003.2(c)(2)).

What the motion must contain

• New facts and evidence. The motion must state the new facts to be proven at a reopened hearing and be supported by affidavits and other evidentiary material.
• Previously unavailable. It will not be granted unless the evidence is material and was not available and could not have been discovered or presented at the former hearing.
• The application for relief. If the motion seeks to apply for relief, it must be accompanied by the appropriate application and all supporting documents (8 CFR 1003.23(b)(3); 8 CFR 1003.2(c)(1)).
• Required statements. The motion must say whether the order is or was the subject of any judicial proceeding and whether the person faces a pending criminal proceeding under the Act. It must be signed and in English or with a certified translation.

Even when every element is met, the decision is discretionary: the judge or the Board may deny a motion to reopen even if a prima facie case for relief has been shown.

Exceptions to the deadline

The statute and regulations list specific exceptions. Outside them, a late or second motion is generally barred.

Changed country conditions (asylum, withholding, CAT)

There is no time or number limit if the motion is to apply for asylum, withholding of removal, or protection under the Convention Against Torture and is based on changed country conditions in the country of nationality or the country of removal, where the evidence is material and was not available and could not have been discovered or presented earlier (INA § 240(c)(7)(C)(ii); 8 CFR 1003.23(b)(4)(i)). Filing this motion does not automatically stay removal, and a person whose earlier asylum application was found frivolous cannot use it.

Orders entered in absentia

An order entered because the person did not appear can be rescinded only through a motion to reopen under INA § 240(b)(5)(C):

• within 180 days of the order, if the failure to appear was because of exceptional circumstances, which the statute defines as circumstances beyond the person's control such as battery or extreme cruelty, serious illness, or the serious illness or death of a spouse, child, or parent (INA § 240(e)(1)); or
• at any time, if the person did not receive the required notice of the hearing, or was in federal or state custody and the failure to appear was through no fault of their own.

Only one such motion is allowed (8 CFR 1003.23(b)(4)(ii)), and no written notice of a changed hearing is required if the person failed to provide the required address.

Joint motions and VAWA motions

A motion to reopen agreed to by all parties and filed jointly is not subject to the time and number limits (8 CFR 1003.23(b)(4)(iv)). INA § 240(c)(7)(C)(iv) also sets a special rule for battered spouses, children, and parents seeking certain VAWA-based relief or cancellation: the usual limits do not apply if the motion includes the application or self-petition, is filed within one year of the final order (waivable in some cases), and the person is in the United States.

Reopening on the judge's or the Board's own motion

An immigration judge or the Board may also reopen a case on its own motion (8 CFR 1003.23(b)(1); 8 CFR 1003.2(a)). This is a discretionary power, not a right, and not a substitute for a timely motion.

Departure from the United States

The regulations bar a motion by or for a person who has left the United States and treat a departure after filing as a withdrawal (8 CFR 1003.2(d)). How far this bar can be applied has been contested in the federal courts.

Stays of removal while a motion is pending

Filing a motion to reopen generally does not stop removal unless a stay is specifically granted by the immigration judge, the BIA, or an authorized Department of Homeland Security (DHS) officer (8 CFR 1003.23(b)(1)(v); 8 CFR 1003.2(f)).

The main exception is the in absentia motion: filing a motion to rescind an in absentia removal order automatically stays removal until the immigration judge decides it (INA § 240(b)(5)(C)); certain VAWA motions also carry a statutory stay. If an immigration judge denies a motion to reopen, the order is not automatically stayed during an appeal of that denial unless a stay is granted (8 CFR 1003.6(b)).

In other cases, a stay has to be requested. The Practice Manual describes a written motion to stay removal, with an emergency version when removal is imminent (Immigration Court Practice Manual, ch. 7). A stay may also be requested from DHS on Form I-246 (8 CFR 241.6), and a DHS denial does not prevent an immigration judge or the BIA from granting one in connection with a pending motion (8 CFR 1241.6). In 2026 the BIA said it expects people to ask DHS first; see our article on Matter of Herrera-Nunez and stays of removal.

Ineffective assistance of counsel: Matter of Lozada

A motion to reopen can be based on a claim that a prior lawyer's performance was so deficient that it denied a fair hearing. In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the Board held that such a motion requires:

1. an affidavit from the person setting out in detail the agreement with former counsel about what would be done and what counsel did or did not represent;
2. proof that former counsel was informed of the allegations and given an opportunity to respond, with any response (or the failure to respond) submitted with the motion; and
3. a statement of whether a complaint was filed with the appropriate disciplinary authorities, and if not, why not.

The decision also discusses the need to show prejudice from the lawyer's performance.

Filing mechanics: service, fees, and electronic filing

• Service on DHS. The motion and all attachments must be served on the opposing party. When the moving party is not DHS, service goes to the ICE Office of the Principal Legal Advisor for the field location where the case was completed (8 CFR 1003.23(b)(1)(ii); 8 CFR 1003.2(g)).
• Electronic filing. EOIR's Courts & Appeals System (ECAS) is available at all immigration courts and the BIA, and attorneys and accredited representatives must use it in eligible cases.
• Fees. Most motions to reopen require a filing fee unless an exception or waiver applies (8 CFR 1003.24(b); 8 CFR 1003.8(a)). No fee is required for a stay-only motion, a joint motion, or an in absentia motion based on lack of notice or custody. Amounts are in 8 CFR 1103.7(b), are paid through the EOIR Payment Portal, and are adjusted for inflation, most recently by a rule effective October 1, 2026; check the current figure before filing.
• Fee waivers. At the BIA, a waiver is requested on Form EOIR-26A; before an immigration judge, with an affidavit or unsworn declaration showing inability to pay. If a waiver is denied, there are 15 days to re-file, with the deadline tolled.

What happens after the decision

If a motion to reopen is granted, the case returns to the immigration court for further proceedings, where the new evidence or application is heard (8 CFR 1003.2(i)).

If an immigration judge denies the motion, the decision can generally be appealed to the BIA. The notice of appeal (Form EOIR-26) must be received by the Board within 30 calendar days of the decision. An interim final rule effective March 9, 2026 rewrote 8 CFR 1003.38(b) to shorten that deadline to 10 days, but a federal court vacated the shorter deadline and EOIR Policy Memorandum 26-02 confirms it is not in effect, so the printed regulation alone can mislead. See our guide to BIA appeals.

If the BIA denies a motion to reopen, federal review is by petition for review in a U.S. court of appeals, filed within 30 days of the final order (INA § 242(b)(1), 8 U.S.C. 1252(b)(1)). Filing the petition does not automatically stay removal unless the court orders otherwise. See our judicial review hub and the article on petitions for review. For a plain-language overview of both motions, read motions to reopen and reconsider explained.

How Carlos Maury Law helps

Carlos Maury is a former U.S. Immigration Judge who served at the Van Nuys Immigration Court (appointed in 2015). If you are considering a motion to reopen a removal order, speak with an attorney as early as possible: the deadlines are short, and the evidence and application must be ready when the motion is filed.

To have a former immigration judge handle your own case, in court or on a motion to reopen, see our deportation defense lawyer page.

To have a former U.S. Immigration Judge prepare a motion to reopen or reconsider, see our immigration appeals lawyer page.

Sources

• 8 U.S.C. 1229a (INA § 240); 8 U.S.C. 1252 (INA § 242)
• 8 CFR 1003.23, 1003.2, 1003.6, 1003.8, 1003.24, 1003.38, 1103.7, 1241.6; 8 CFR 241.6
• Immigration Court Practice Manual, ch. 4 and ch. 7; BIA Practice Manual, ch. 5
• Matter of Lozada, 19 I&N Dec. 637 (BIA 1988); EOIR ECAS
• 91 FR 5267 (Feb. 6, 2026); 91 FR 54211 (Aug. 21, 2026); EOIR Policy Memorandum 26-02 (March 13, 2026)