A motion to reopen asks an Immigration Judge or the Board of Immigration Appeals to reopen a case that has already been decided, based on new facts supported by new evidence. It is generally due within 90 days of the final administrative order, and a person is generally limited to one. Several exceptions to those limits exist, and the most important ones involve changed country conditions and orders entered in absentia. A motion to reopen is not an appeal. It does not argue that the decision was wrong on the record that existed. It argues that facts have emerged which the adjudicator never had before it.
WHERE THE MOTION IS FILED
Jurisdiction follows the last decision. If an Immigration Judge decided the case and no appeal was taken, the motion goes to the immigration court under 8 CFR 1003.23(b). If the Board decided an appeal, the motion goes to the Board under 8 CFR 1003.2(c). Filing in the wrong forum wastes time that the deadline does not give back.
THE DEADLINE AND THE NUMERICAL LIMIT
Section 240(c)(7) of the Immigration and Nationality Act sets the framework. A motion to reopen must be filed within 90 days of the date of entry of the final administrative order of removal, and only one such motion may be filed. Both restrictions are real, and both have exceptions. If you are not sure how much time is left in your own case, the case review sets out the deadlines that generally govern after each kind of decision.
The most significant exception is for changed country conditions. Under INA 240(c)(7)(C)(ii), a motion to reopen to apply for asylum, withholding of removal, or CAT protection based on changed conditions in the country of removal is subject to neither the time limit nor the numerical limit. The evidence of the change must be material and must not have been available and could not have been discovered or presented at the prior hearing. Changed personal circumstances alone do not satisfy this exception in most circuits, which is why the country conditions evidence has to do the work.
A second exception applies to orders entered in absentia and is discussed below. A third arises where the parties file a joint motion, which is not subject to the time and number limits. And both the Immigration Judge and the Board retain limited authority to reopen a case on their own motion under 8 CFR 1003.23(b)(1) and 8 CFR 1003.2(a), an avenue reserved for exceptional situations and not something to be relied upon.
ORDERS ENTERED IN ABSENTIA
A removal order entered because the respondent did not appear is governed by a separate rule at INA 240(b)(5)(C). A motion to reopen based on exceptional circumstances must be filed within 180 days of the order. A motion to reopen based on a failure to receive proper notice may be filed at any time, with no deadline at all.
This distinction matters more than almost anything else in this area, because the notice question turns on whether the Notice to Appear and any subsequent hearing notice complied with the statute and actually reached the respondent at the address of record. It also matters because, under the same provision, the filing of a motion to reopen an in absentia order stays removal pending the adjudicator's decision. That automatic stay does not exist for ordinary motions to reopen.
WHAT THE MOTION MUST CONTAIN
The regulations require that a motion to reopen state the new facts to be proved and be supported by affidavits or other evidentiary material. A motion resting on argument alone will not succeed. Beyond the evidence itself, the movant generally must show prima facie eligibility for the relief sought, meaning that if the new facts are accepted, there is a realistic prospect of qualifying. Where the relief sought is discretionary, the motion should also address why the discretion should be exercised favorably.
The evidence must be new. Under 8 CFR 1003.2(c)(1), a motion will not be granted where the evidence sought to be offered was available and could have been presented at the former hearing. Assembling documents that existed and were obtainable at the time of the hearing does not satisfy this requirement, however compelling those documents are.
MOTIONS BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL
Where the basis for reopening is that prior counsel failed the respondent, the Board's decision in Matter of Lozada sets out what must accompany the motion. The respondent must submit an affidavit describing the agreement with former counsel and what was and was not done, must inform former counsel of the allegations and give an opportunity to respond, and must indicate whether a complaint has been filed with the appropriate disciplinary authority and if not, why not.
These requirements are procedural and adjudicators enforce them. A motion that describes serious failures by prior counsel but omits the notification or the bar complaint discussion is frequently denied without reaching the merits.
THE MOTION IS DISCRETIONARY EVEN WHEN THE REQUIREMENTS ARE MET
This is the point most often misunderstood. Satisfying the deadline, the numerical limit, and the evidentiary requirements does not entitle anyone to reopening. The Supreme Court has made clear in INS v. Abudu and INS v. Doherty that motions to reopen are disfavored and that an adjudicator may deny one as a matter of discretion even where a prima facie case has been established. A well-prepared motion therefore argues not only that reopening is permitted but that it is warranted.
FILING DOES NOT STOP A REMOVAL
Outside the in absentia context, filing a motion to reopen does not automatically stay removal. A separate request for a stay must be made, and it is granted at the adjudicator's discretion. Anyone with an outstanding order of removal should treat the stay request as part of the filing rather than an afterthought.
Departure from the United States raises a further complication. Under 8 CFR 1003.2(d) and 8 CFR 1003.23(b)(1), a motion filed by a person who has departed is subject to a departure bar. Federal courts of appeals have divided on the validity of that regulation, and the answer depends on the circuit. This is a question to resolve before anyone leaves the country, not after.
FEES AND FORMALITIES
EOIR charges a filing fee for motions to reopen, subject to exceptions including motions to reopen in absentia orders and motions filed jointly with the Department of Homeland Security. Immigration court fee amounts changed in 2026, so confirm the current amount and the current payment mechanism on the EOIR website before filing rather than relying on a figure from an older source. A motion filed without the correct fee or fee waiver request can be rejected on that basis alone.
WHAT HAPPENS AFTER FILING
The Department of Homeland Security may file an opposition. The adjudicator may grant the motion, deny it, or in some circumstances grant it in part. If the motion is granted, the case returns to the posture it was in before the decision, and proceedings resume, which usually means a new hearing at which the new evidence is presented. If it is denied, the denial may be appealable depending on where it was filed, and a petition for review in the appropriate court of appeals may be available on a separate timetable.
WHEN LEGAL REPRESENTATION MATTERS
Motions to reopen are unforgiving in ways that are not obvious from the outside. The deadline is short, the number is limited, the evidentiary standard excludes anything that could have been produced earlier, the exceptions have their own separate requirements, and a motion that fails on a procedural point generally cannot simply be refiled. Identifying which exception applies, deciding whether the case belongs before the Immigration Judge or the Board, preserving the stay question, and assembling country conditions evidence that is genuinely new are all decisions that shape whether the motion has a realistic chance.
If you have a final removal order, have missed a hearing, have new evidence that was not available when your case was decided, or believe your prior attorney mishandled your case, Malouche Law Firm can review your record and the timing of your order and discuss whether a motion to reopen is available to you. Consultations can be scheduled here.
This article is provided for general informational purposes only and does not constitute legal advice. It reflects the law as of August 21, 2026. The availability of a motion to reopen depends on the procedural history of the individual case, the applicable circuit law, and current filing requirements. Reading this article does not create an attorney-client relationship with Malouche Law Firm PLLC.