A motion to reopen or reconsider before the BIA is the main way to challenge a Board of Immigration Appeals decision without going straight to federal court. Under 8 CFR 1003.2, the Board can revisit any case it has decided, either on its own or because a party asks it to. Which motion you file, and when, depends entirely on what went wrong: a motion to reconsider argues the Board misapplied the law to the record it already had, while a motion to reopen introduces new evidence that wasn’t available before. Both are discretionary. The Board can deny even a strong motion.
Which Motion Fits Your Situation
A motion to reconsider asks the Board to take a second look using only the record already in front of it. No new evidence. You argue that the Board misread the law, misstated a fact already in the record, or applied the wrong legal standard. The motion has to identify the errors with precision and cite the legal authority (case law, statutes, regulations) that supports your position. Vague disagreement won’t survive initial review.1United States Department of Justice. Board Practice Manual 4.7 – Motions to Reconsider If the argument is that the law itself changed after the Board ruled, the motion should say what changed and attach copies of the new authority when possible.
A motion to reopen is a different animal. Rather than arguing about how the Board handled existing facts, you’re bringing in new ones. The motion has to describe the new evidence and include supporting documentation: affidavits, medical records, updated country condition reports, or other proof.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals That evidence has to clear two hurdles. It must be material, meaning likely to change the outcome, and it must not have been available or discoverable at the time of the earlier hearing.
Most motions to reopen fail on the second hurdle. People submit documents that existed during the original proceedings but weren’t gathered, and the Board treats that as waived. A motion to reopen is not a second chance to present the same case with better preparation. Something has to have genuinely surfaced since the Board decided.
Deadlines and How Many You Get
Both motions run on tight clocks set by 8 CFR 1003.2 and by 8 U.S.C. ยง 1229a(c)(7).
- A motion to reconsider must be filed within 30 days after the Board mails its decision. You get one per decision. A second motion to reconsider after a denial is not allowed.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals
- A motion to reopen must be filed within 90 days of the final administrative decision. You get one per case.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals
The limits apply to both the noncitizen and the government. The Board treats them as jurisdictional, so a late filing usually gets denied without any look at the substance.
When the Deadlines Don’t Apply
Several exceptions exist, and for anyone who has already missed the standard window, they are often the only route left.
Changed Country Conditions
A motion to reopen based on asylum or withholding of removal has no time limit and no numerical limit if it relies on changed conditions in your home country. The evidence still has to be material and still has to be something that wasn’t available at the earlier hearing.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals
Joint Motions
When you and the government both agree that reopening is warranted and file a joint motion, neither the time limits nor the numerical limits apply.3Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings These are uncommon but do happen when DHS agrees new circumstances justify another look.
In Absentia Removal Orders
If you were ordered removed in your absence, different rules apply. You have 180 days to move to reopen if you can show your failure to appear was caused by exceptional circumstances, which the statute defines narrowly: serious illness, the death of a close family member, or battery or extreme cruelty. Ordinary hardship doesn’t qualify.3Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
You can move to reopen an in absentia order at any time if you never received proper notice or if you were in federal or state custody and your absence wasn’t your fault. A motion to reopen an in absentia order is one of the very few that carries an automatic stay of removal while pending.3Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
VAWA Self-Petitioners and Domestic Violence Cases
Time and number limits don’t apply to a motion based on a Violence Against Women Act self-petition or an application for cancellation of removal tied to domestic violence. The motion must be filed within one year of the final removal order (the Attorney General can waive that deadline for extraordinary circumstances or extreme hardship to a child), and you must be physically present in the United States when you file.3Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
Ineffective Assistance of Counsel
One of the most common bases for a late motion to reopen is a claim that your prior attorney’s deficient performance sank your case or caused you to miss a deadline. The Board’s framework comes from Matter of Lozada and requires three things:4United States Department of Justice. Matter of Lozada, Interim Decision 3059
- A sworn affidavit from you describing what you hired the attorney to do and what went wrong.
- Notice to the former attorney of the allegations, with an opportunity for them to respond; any response should be filed with the motion.
- A statement about whether you filed a disciplinary complaint with the appropriate bar authority, and if you didn’t, why not.
Where the attorney’s errors caused you to miss the 90-day window, federal courts have recognized equitable tolling. To qualify you generally need to show the attorney’s errors prevented timely filing, that you exercised due diligence in figuring out the problem, and that you satisfied Lozada. Courts examine the timeline closely, and delay in acting once you learned something was wrong will sink the argument.
The Board Acting on Its Own
The Board can reopen or reconsider any case on its own initiative at any time, with no time or number limits.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals In practice this happens rarely, and most circuit courts have held the Board’s refusal to act on its own is unreviewable, so counting on this route is a mistake.
Filing the Motion
All motions before the BIA must be filed electronically through the EOIR Courts and Appeals System. ECAS has been mandatory since February 2022.5United States Department of Justice. EOIR Courts and Appeals System (ECAS) – Online Filing Attorneys and accredited representatives have to register through eRegistry before they can file.6United States Department of Justice. ECAS – Attorneys and Accredited Representatives
The filing fee is $1,030. As of February 23, 2026, EOIR no longer accepts checks or money orders; payment goes through the EOIR Payment Portal.7United States Department of Justice. Types of Appeals, Motions, and Required Fees If you cannot afford it, you can request a waiver using Form EOIR-26A.8Executive Office for Immigration Review. Forms and Fees
Every motion needs proof of service on the opposing party, which for a noncitizen means DHS through the Office of the Chief Counsel. The proof of service has to list the party served, their complete address, the date and method of service, and the documents served. When both sides are on ECAS, the proof should note that filing was electronic and no separate service was made. Without proof of service, the Board rejects the motion.9Executive Office for Immigration Review. Board Practice Manual 2.2 – Service The motion itself must include your full name, A-number, and the Board’s case number.
Getting a Stay So You Aren’t Removed While Waiting
Filing a motion does not stop your removal. The regulation is explicit that removal proceeds unless a stay is specifically granted by the Board, an immigration judge, or an authorized DHS officer.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals The one exception, again, is a motion to reopen an in absentia order.
If removal is imminent, the Board can consider an emergency stay request, but only when DHS has confirmed a specific removal date, you’re in DHS custody, and a case or motion is pending before the Board. The request must be in writing, and filing it doesn’t pause anything on its own. The stay must actually be granted before it takes effect.10United States Department of Justice. BIA Emergency Stay Requests
This is where people get caught out. A perfectly valid motion can be pending while you’re being put on a plane. If you want to stay in the country during review, filing a separate stay request alongside the motion isn’t optional.
If the Board Says No
If the Board denies your motion, you can challenge the denial in a federal circuit court by filing a petition for review. The deadline is 30 days from the Board’s denial. It is mandatory and jurisdictional. Courts have no power to hear a late petition, and equitable tolling does not apply. The clerk’s office must actually receive the petition within 30 days; a postmark before the deadline isn’t enough.3Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
A petition challenging the motion denial is separate from any petition challenging the underlying removal order. If you want the circuit court to review both, you have to file separate petitions for each BIA decision. File only one and the court’s review is limited to whichever decision you actually challenged.
The Post-Departure Bar
One boundary worth flagging: under 8 CFR 1003.2(d), a motion to reopen or reconsider cannot be filed by or on behalf of someone who has already left the United States. If you file and then depart before a decision, your departure is treated as withdrawing the motion.2eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals Several circuit courts have struck this regulation down as exceeding statutory authority; others have upheld it or applied it more narrowly. The BIA still enforces it, so whether the bar blocks you depends on the circuit your case comes from.