Motion to Reopen

A person subject to a final order of removal has the statutory right to file one motion to reopen. The general rule is that a motion to reopen must be filed within 90 days of the final removal order. However, there are no time limits to filing a motion to reopen to apply for asylum based on changed country conditions. Additionally, there is not a time limit for filing a motion to reopen to rescind an in absentia order of removal where the foreign national does not appear for court if the motion is based on lack of notice. A motion to reopen to rescind an in absentia order has a 180-day time limit if it is based on exceptional circumstances for failing to appear. The Board of Immigration Appeals or an immigration judge can reopen a case sua sponte at any time. Additionally, there are no time or number limits for filing if the motion to reopen is agreed upon by both parties.

To file a motion to reopen, a foreign national must present new, material, and previously unavailable evidence. If the foreign national is applying for relief that was not previously available, the application for relief must be filed along with the motion. The applicant must establish prima facie eligibility for the relief.

A foreign national can also file a motion to reconsider within 30 days of the decision in his or her case. The motion must set forth the errors of fact or law in the decision and be supported by pertinent authority.

It is important to understand that filing a motion to reopen or a motion to reconsider does not toll the time for filing a petition for review in the federal appeals court.

MJB Immigration represents individuals seeking to reopen their cases. We also represent those who want to file a motion to reconsider based on material errors of law or fact in the decisions. Scott Bratton has extensive experience in filing all types of motions to reopen and reconsider with the Immigration Court and Board of Immigration Appeals. He has also spoken on the topic of motions to reopen at the national American Immigration Lawyers Association (AILA) Conferences in New Orleans (2017) and San Francisco (2018).