5.6 - Motions to Reopen

(a) Purpose — A motion to reopen asks the Board to reopen proceedings in which the Board has already rendered a decision in order to consider new facts or evidence in the case.

(b) Requirements — 

          (1) Filing — Motions to reopen must comply with the general requirements for filing a motion.  See Chapter 5.2 (Filing a Motion).  Depending on the nature of the motion, a filing fee may be required.  See Chapter 3.4 (Filing Fees).

          (2) Content — A motion to reopen must state the new facts that will be proven at a reopened hearing, and the motion must be supported by affidavits or other evidentiary material.  8 C.F.R. § 1003.2(c)(1).

A motion to reopen will not be granted unless it appears to the Board that the evidence offered is material and was not available and could not have been discovered or presented at an earlier stage in the proceedings.  See 8 C.F.R. § 1003.2(c)(1).

A motion to reopen based on an application for relief will not be granted if it appears the respondent’s right to apply for that relief was fully explained and the respondent had an opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief is sought on the basis of circumstances that have arisen subsequent to that stage of the proceedings).  See 8 C.F.R. § 1003.2(c)(1).

(c) Time Limits — As a general rule, a motion to reopen must be filed within 90 days of the Board’s final administrative decision.  8 C.F.R. § 1003.2(c)(2).  (For cases decided by the Board before July 1, 1996, the motion to reopen was due on or before September 30, 1996.  8 C.F.R. § 1003.2(c)(2).)  There are few exceptions.  See subsection (e), below.

(d) Number Limits — A party is permitted only one motion to reopen.  8 C.F.R. § 1003.2(c)(2).  There are few exceptions.  See subsection (e), below.

(e) Exceptions to the Limits on Motions to Reopen — A motion to reopen may be filed outside the time and number limits in very specific circumstances.  See 8 C.F.R. § 1003.2(c)(3).

          (1) Changed circumstances — When a motion to reopen is based on a request for asylum, withholding or removal, or relief under the Convention Against Torture, and it is premised on new circumstances, the motion must contain a complete description of the new facts that comprise those circumstances and articulate how those circumstances affect the party’s eligibility for relief.  See 8 C.F.R. § 1003.2(c)(3)(ii).  Motions based on changed circumstances must also be accompanied by evidence of the changed circumstances alleged.  See 8 C.F.R. § 1003.2(c).

          (2) In absentia proceedings — There are special rules pertaining to motions to reopen following a respondent’s failure to appear for a hearing.  An “in absentia” order (an order entered when the respondent did not come to the hearing) cannot be appealed to the Board.  Matter of Guzman, 22 I&N Dec. 722 (BIA 1999).  If a respondent misses a hearing and the immigration judge orders the respondent removed from the United States, the respondent must file a motion to reopen with the immigration judge, explaining why they missed the hearing. (Unlike the in absentia order, the immigration judge’s ruling on the motion can be appealed.)  Such motions are subject to strict deadlines under certain circumstances.  See 8 C.F.R. §§ 1003.2(c)(3)(i), 1003.23(b)(4)(ii), 1003.23(b)(4)(iii).

          (3) Joint motions — Motions that are agreed upon by all parties and are jointly filed are not limited in time or number.  See 8 C.F.R. § 1003.2(c)(3)(iii).

          (4) DHS motions — For cases in removal proceedings, DHS may not be subject to time and number limits on motions to reopen.  See 8 C.F.R. § 1003.2(c)(2), (3).  For cases brought in deportation or exclusion, DHS is subject to the time and number limits on motions to reopen, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.  See 8 C.F.R. § 1003.2(c)(3)(iv).

          (5) Pre-9/30/96 motions — Motions filed before September 30, 1996, do not count toward the one‑motion limit.

          (6) Battered spouses, children, and parents — There are special rules for certain motions to reopen by battered spouses, children, and parents.  See Immigration and Nationality Act § 240(c)(7)(C)(iv).

          (7) ECAS system outage (electronic filing) — System outages may occur that make electronic filing through ECAS unavailable and may impact filing deadlines for a case where electronic filing is mandatory.  If EOIR determines that an unplanned outage has occurred, filing deadlines that occur on the last day for filing in a specific case will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday.  See 8 C.F.R. § 1003.2(g)(5).  Note that planned system outages will not impact filing deadlines since these can be proactively addressed by the parties.  EOIR will maintain an ECAS Outage Log that will note planned and unplanned ECAS system outages.

          (8) Fee waiver denied — If a fee waiver request does not establish the inability to pay the required fee, the Board will grant 15 days to re-file the rejected motion with the filing fee or new fee waiver request.  Any applicable filing deadlines will be tolled during this 15-day period.  See 8 C.F.R. § 1003.8(a)(3).  See Chapter 3.4 (Filing fees).

          (9) Other — In addition to the regulatory exceptions for motions to reopen, exceptions may be created in accordance with special statutes, published case law, directives, or other special legal circumstances.  The Board may also reopen proceedings at any time on its own initiative.  8 C.F.R. § 1003.2(a).

(f) Evidence — A motion to reopen must be supported by evidence.  See Chapter 5.2(f) (Evidence).

(g) Motions Filed While an Appeal is Pending — Once an appeal is filed with the Board, the immigration judge no longer has jurisdiction over the case.  See Chapter 4.2(a)(2) (Appeal to the Board vs. motion before the immigration judge).  Thus, motions to reopen should not be filed with an immigration judge after an appeal is taken to the Board.  A motion to reopen that is filed with the Board during the pendency of an appeal is generally treated as a motion to remand for further proceedings before an immigration judge.  8 C.F.R. § 1003.2(c)(4).  See Chapter 5.8 (Motions to Remand).

(h) Administratively Closed Cases — When proceedings have been administratively closed, the proper motion is a motion to recalendar, not a motion to reopen.  See Chapter 5.9(h) (Motion to Recalendar).

(i) Automatic Stays — A motion to reopen that is filed with the Board does not automatically stay an order of removal or deportation.  See Chapter 6 (Stays and Expedite Requests).

(j) Criminal Convictions — A motion claiming that a criminal conviction has been overturned, vacated, modified, or disturbed in some way must be accompanied by clear evidence that the conviction has actually been disturbed.  Thus, neither an intention to seek post-conviction relief nor the mere eligibility for post-conviction relief, without more, is sufficient to reopen proceedings.