8 CFR 1003.23: Motions to Reopen, Deadlines, and Appeals

Under 8 CFR 1003.23, motions to reopen and reconsider let a party ask the immigration judge who issued a removal, deportation, or exclusion order to revisit that decision. A motion to reconsider argues the judge made a legal or factual error on the existing record and must be filed within 30 days. A motion to reopen introduces new, previously unavailable evidence and must be filed within 90 days. Each party gets one of each per case, the filing fee is $1,065, and several exceptions can lift the deadlines or the numerical cap.¹²

Which Motion Fits Your Case

The two motions do different work, and choosing the wrong one usually ends the effort before the merits are ever considered.

A motion to reconsider argues that the judge got something wrong the first time — misread the evidence, misapplied a legal standard, or overlooked a controlling statute or decision. The motion must identify the specific error and cite the legal authority showing why the ruling was incorrect. No new evidence is allowed. The entire argument rests on the record that already exists.³

A motion to reopen is for new facts. It must describe evidence that has surfaced since the original decision, explain why the evidence matters, and show that it was genuinely unavailable during the earlier proceedings. Affidavits or other supporting documents have to accompany the motion.⁴ Evidence that existed at the time of the original hearing but simply was not submitted does not satisfy this standard.

Deadlines and the One-Motion Cap

Both motions are timed from the date the final administrative order was entered. Motion to reconsider: 30 days. Motion to reopen: 90 days.¹ The deadlines are enforced strictly. Late filings are rejected without regard to the merits.

On top of the clock, each party gets one motion to reconsider and one motion to reopen per case. This numerical cap is designed to stop the serial filings that could indefinitely delay a final order from being carried out.

When the Deadlines and Cap Don’t Apply

Several situations sit outside the standard limits, and for many respondents these exceptions are the only remaining path.

In Absentia Orders

If a removal order was entered because you did not appear, you can move to rescind that order within 180 days by showing the absence resulted from exceptional circumstances beyond your control. The statute reads that phrase narrowly. Qualifying examples include serious illness of the respondent, serious illness or death of an immediate family member, or being the victim of battery or extreme cruelty.⁵ If you can show you never received proper notice of the hearing, the motion may be filed at any time with no deadline.¹

Changed Country Conditions

There is no time limit on a motion to reopen based on changed conditions in the country of removal. The evidence must be material, must not have been available at the earlier proceeding, and must support an application for asylum or withholding of removal.⁶ These motions are heavily litigated and require strong documentation of the shift.

Joint Motions

If the respondent and DHS both agree the case should be reopened, they can file a joint motion. Joint motions are exempt from both the time and numerical limits.⁴ They are relatively uncommon but do come up when both sides recognize a procedural defect or a significant change in circumstances.

DHS Motions

The time and numerical limits do not apply to motions filed by DHS in removal proceedings. In deportation or exclusion cases, DHS can also file outside the limits when the basis is fraud in the original proceeding or a crime that would support termination of asylum.¹

Sua Sponte Reopening

An immigration judge may reopen or reconsider a case on the judge’s own initiative at any time, unbound by the time or numerical limits that apply to party-filed motions. In practice, judges rarely act on their own. Attorneys sometimes ask the judge to invoke this authority when a client has no other procedural avenue left, but there is no mechanism to compel the judge to do so.

Ineffective Assistance of Counsel

A common basis for reopening is that the respondent’s prior attorney performed so poorly the original proceeding was fundamentally unfair. The Board of Immigration Appeals set procedural requirements for these claims in Matter of Lozada. The motion must include three things:

A detailed affidavit from the respondent describing the agreement with the prior attorney, what the attorney was supposed to do, and what the attorney actually did or failed to do.
Proof that the prior attorney was notified of the allegations and given a chance to respond. Any response, or a report that the attorney refused to respond, must be submitted with the motion.
A statement about whether a complaint has been filed with the appropriate bar disciplinary authority, and if not, why not.

Skipping any of the three steps is a common reason these motions are denied, even when the underlying claim of bad lawyering has merit.⁷

What Goes in the Motion and What It Costs

There is no specific EOIR form for a motion to reopen or reconsider before an immigration judge. The motion is submitted in writing, signed by the respondent or their attorney, and must include:¹

The Alien Registration Number (A-Number) and the date of the final order being challenged.
A statement about whether the removal order is currently the subject of any court proceeding, with details and status if so.
If a removal order is in effect, a declaration about whether the respondent is the subject of any pending criminal proceeding under the Immigration and Nationality Act.
For motions to reopen, affidavits and documentary evidence supporting the new facts. For motions to reconsider, citations to the legal authority showing the error in the prior decision.
Form EOIR-28 (Notice of Appearance) if the respondent is represented.

Any document in a foreign language needs a certified English translation. The translator signs a certification stating they are competent to translate the document and that the translation is true and accurate.⁸

The filing fee is $1,065.² It does not apply to motions to reopen in absentia orders that meet the statutory requirements. A respondent who cannot afford the fee may request a waiver on Form EOIR-26A.⁹ If your address or contact information has changed since the last hearing, file Form EOIR-33 to update the court’s records.¹⁰

How to File and Serve the Motion

Represented parties file through the EOIR Courts and Appeals System (ECAS), which has been mandatory since February 2022.¹¹ Unrepresented individuals may still file on paper by mailing or delivering the motion to the immigration court that issued the original decision.

A complete copy of the motion has to be served on the opposing party. For a respondent, that means DHS — typically the Chief Counsel or a designated Assistant Chief Counsel at the local office.¹² When both parties use ECAS in the same case, electronic filing satisfies service automatically. Otherwise, proof of service must accompany the motion. Failing to prove service can get the motion rejected before the judge reaches the merits.

Whether Removal Is Paused

Filing a motion does not automatically stop the government from carrying out the removal order. In most cases you have to request a stay of removal, and the immigration judge decides whether to grant it. Removal can proceed while the motion is pending unless a stay is specifically ordered.

The exception is in absentia orders. When a respondent files a motion to rescind an in absentia removal order, the filing itself automatically stays removal until the judge rules.¹ The automatic protection reflects the due process concern in cases where someone was ordered removed without being present.

The Voluntary Departure Trap

Respondents who accepted voluntary departure face a specific hazard. Filing a motion to reopen or reconsider during the voluntary departure period automatically terminates the voluntary departure grant, and the alternate order of removal takes effect immediately. The voluntary departure clock is not paused or extended. Immigration judges and the BIA cannot toll, stay, or reinstate voluntary departure except in narrow circumstances where the case is successfully reopened before the original departure period expires. Anyone considering a motion after receiving voluntary departure should weigh this carefully, because once the grant terminates, the penalties for failure to depart — including a multi-year bar on certain forms of relief — may apply.

Jurisdiction and Appealing a Denial

An immigration judge can act on a motion only if the judge still has jurisdiction. If an appeal is pending before the Board of Immigration Appeals, the immigration judge has lost jurisdiction, and any motion to reopen or reconsider has to be filed with the BIA under its own parallel regulation. Filing with the wrong tribunal wastes time that is often impossible to recover given how tight the deadlines are.

If the immigration judge denies the motion, the respondent can appeal that denial to the BIA. The appeal is a separate proceeding with its own deadlines and filing requirements. Decisions come through ECAS or by mail to the address on file, which is another reason to keep the EOIR-33 address information current. A denial is not necessarily the end of the road, but each layer of review narrows the remaining options.

1
eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court
2
Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees
3
United States Department of Justice. EOIR Policy Manual – 4.8 Motions to Reconsider
4
United States Department of Justice. EOIR Policy Manual – 4.7 Motions to Reopen
5
United States Department of Justice. Motions to Reopen In Absentia Orders
6
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
7
U.S. Department of Justice. Matter of Lozada, Interim Decision 3059
8
Government Publishing Office. 8 CFR 1003.33 – Translation of Documents
9
Executive Office for Immigration Review. EOIR Forms and Fees
10
United States Department of Justice. Change of Address Form EOIR-33/IC
11
Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing
12
United States Department of Justice. EOIR Practice Manual – 2.2 Service on the Opposing Party