Motion to Reopen Removal Proceedings: Grounds, Deadlines, Filing

A motion to reopen removal proceedings asks the immigration judge or the Board of Immigration Appeals to restart your closed deportation case because new evidence has surfaced or a specific legal problem tainted the original result. You generally get one motion, and you generally have 90 days from the final removal order to file it. Several exceptions can extend or eliminate that deadline, and one regulation, the departure bar, can quietly wipe out your ability to file at all.

Reopen or Reconsider: Pick the Right Motion First

These are two different filings, and confusing them wastes your one shot. A motion to reopen is built on new facts or evidence that weren’t available at your original hearing. A motion to reconsider argues the judge or the Board applied the law incorrectly to the evidence already in the record. You cannot introduce new evidence through a motion to reconsider. If something has changed or new proof has surfaced, you need to reopen. If the judge got the law wrong on what was already before them, you need to reconsider.

Grounds That Can Actually Reopen a Case

Disagreeing with the outcome is not a ground. You need a recognized legal basis, and most successful motions fall into one of four categories.

New and Material Evidence

Evidence that wasn’t available during the original hearing and that could change the decision. “Material” means significant enough to potentially alter the outcome, not just another document on a point the judge already weighed.¹ Resubmitting what was already in the record will not work.

Changed Country Conditions

If you are seeking asylum, withholding of removal, or protection under the Convention Against Torture, you can reopen based on changed conditions in the country of removal. The changes must be substantial and directly relevant to your fear of persecution or torture, and you must describe them in detail and connect them to your eligibility.¹ This ground is powerful because it is exempt from both the 90-day deadline and the one-motion limit.

Ineffective Assistance of Counsel

If your previous attorney’s performance fell below professional standards and harmed the outcome, you can seek reopening. The BIA’s decision in Matter of Lozada set three requirements you must meet:²

A detailed sworn affidavit describing what your former attorney agreed to do, what they did or failed to do, and what they told you about your case.
Notice to the former attorney of the allegations, with a chance to respond. Include the response, or evidence that they refused to respond.
A statement on whether you filed a complaint with the appropriate bar or disciplinary authority, and if you did not, why not.

The third requirement is often misread. The motion must address whether a complaint was filed, but several courts have held that actually filing one is not always mandatory as long as you explain why you did not.

In Absentia Removal Orders

If you were ordered removed because you did not appear at a hearing, the ground you claim controls your deadline. If you never received proper notice, or you were in federal or state custody and could not appear through no fault of your own, you can file at any time. If your absence was due to exceptional circumstances such as a serious medical emergency or a natural disaster, you have 180 days from the date of the order.³

The 90-Day Deadline and Who Escapes It

The default rules are strict. One motion, 90 days from the final removal order.⁴ Miss the deadline or use up your motion and the court will likely reject any later filing without reaching the merits. The exceptions, though, are broader than many filers realize.

Changed country conditions. No time limit and no numerical limit. More than one motion is possible if each rests on genuinely new conditions.⁵
Joint motions. When you and the DHS attorney agree to reopen, no time or numerical limit applies.⁵
In absentia orders based on lack of notice or custody. No time limit.
Battered spouses, children, and parents. The normal time and numerical limits do not apply if you are filing to pursue a VAWA self-petition or VAWA-based cancellation of removal. You must file within one year of the removal order, though the Attorney General can waive that in extraordinary circumstances, and you must be physically present in the United States when you file.⁴
Sua sponte reopening. An immigration judge can reopen a case at any time on their own initiative regardless of the normal limits. You can ask, but there is no right to it. Courts treat this as discretionary and rarely reviewable.⁵

Equitable Tolling for Late Motions

Outside the statutory exceptions, courts have recognized that the 90-day clock can be equitably tolled when extraordinary circumstances prevented timely filing. You have to show two things: that you pursued your rights diligently, and that some extraordinary obstacle stood in your way. Attorney fraud or abandonment is the classic scenario. If your lawyer disappeared with your file or lied to you about your case status, and you acted quickly once you discovered the problem, a court may forgive the late filing. The bar is high, and you will need strong documentation of both the obstacle and your diligence.

The Departure Bar: The Rule That Ends Cases Quietly

You cannot file a motion to reopen if you have already left the United States, whether voluntarily or through deportation. That is the rule at the BIA⁶ and the same rule applies at the immigration court.⁷

Just as important: if you file a motion and then leave the country while it is pending, that departure is treated as a withdrawal of your motion. The motion does not pause. It is gone. If you are weighing voluntary departure against fighting the case, understand that leaving likely closes the door on reopening.

What Goes in the Filing

Federal law requires the motion to “state the new facts that will be proven at a hearing” and to be “supported by affidavits or other evidentiary material.”⁴ In practice, your package needs several pieces.

The Written Motion

Your core legal document. It should identify the legal basis for reopening, describe the new facts or changed circumstances, and explain why the evidence is material. The EOIR Practice Manual calls for a cover page labeled “MOTION TO REOPEN.”⁵ If you are also requesting a stay of removal, include that request as a separate motion in the same filing.

Supporting Evidence

What you attach depends on your ground:

New facts: witness affidavits, medical records, police reports, or other documents that were not available during the original proceedings.
Changed country conditions: human rights reports, news articles, State Department advisories, or expert declarations documenting the deterioration.
Ineffective assistance: your detailed affidavit, notice to your former attorney and their response or proof of non-response, and documentation about any disciplinary complaint.²
Lack of notice for in absentia orders: evidence that the court’s address records were wrong or that you never received the hearing notice.

Proof of Service

Serve a copy of the complete motion on the DHS ICE Office of the Principal Legal Advisor attorney assigned to your case, and include a proof of service showing how and when you delivered it.

Change of Address

If your address has changed since your last filing, submit Form EOIR-33 to the immigration court, or EOIR-33/BIA if your case is at the Board. The court sends all official correspondence to the address on file and will not update your information based on what appears in the motion itself. You are required to file this form within five business days of any address change.⁸

Where to File

File with whichever body issued the final order. If the immigration judge’s order was the last decision, file with that court. If you appealed and the BIA issued the final decision, file with the BIA.¹

Attorneys and accredited representatives must file electronically through the EOIR Courts and Appeals System, which has been mandatory since February 2022.⁹ Pro se filers may be able to use the Respondent Access Portal, but access is being rolled out in phases. Until you receive an official notice of eligibility, file by mail or in person.

Fees and Fee Waivers

A motion to reopen before the BIA costs $1,030. Before an immigration judge, the fee is $1,065.¹⁰ No fee is required if you are reopening solely to apply for asylum, or because you did not receive notice of the hearing that led to your in absentia removal order.

If you cannot afford the fee, request a waiver from the immigration court or BIA. EOIR runs its own fee waiver process; Form I-912 is for USCIS filings and does not apply here. You will need to show inability to pay with documentation such as tax returns, pay stubs, or proof that you receive means-tested public benefits.

Filing the Motion Does Not Stop Your Deportation

This catches people off guard. While your motion sits in the queue, ICE can still carry out the removal order unless you have obtained a stay.

Two situations produce an automatic stay. If you are reopening an in absentia removal order, the removal is automatically stayed from the moment you file until the judge rules.¹¹ Motions filed by battered spouses, children, and parents under the VAWA exception also receive an automatic stay.⁴

Everyone else needs to file a separate request for a stay of removal alongside the motion. If the stay is not granted and you are removed, the departure bar kicks in and your removal is treated as a withdrawal of the pending motion. That makes the stay request functionally as important as the motion itself.

After the Ruling

If the motion is granted, the previous removal order is vacated and your case reopens for a new hearing where you can present your evidence and seek relief.

If the motion is denied, the original removal order stays in effect. Where you go next depends on where you filed. A denial by the immigration judge can be appealed to the BIA. A denial by the BIA, whether of the motion itself or of your appeal from the judge’s denial, can be challenged by petition for review with the federal circuit court of appeals covering your case. Petitions for review have their own strict deadlines, typically 30 days from the BIA’s final order, so move quickly.

1
Executive Office for Immigration Review. EOIR Policy Manual – 4.6 – Motions to Reopen
2
U.S. Department of Justice. Matter of Lozada, 19 I&N Dec. 637
3
Executive Office for Immigration Review. Immigration Court Practice Manual – 5.9 – Motions to Reopen In Absentia Orders
4
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
5
Executive Office for Immigration Review. Immigration Court Practice Manual – 4.7 – Motions to Reopen
6
eCFR. 8 CFR 1003.2 – Reopening or Reconsideration Before the Board of Immigration Appeals
7
eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court
8
EOIR Respondent Access. Change of Address Form (EOIR-33/IC)
9
Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing
10
Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees
11
Executive Office for Immigration Review. EOIR Policy Manual – 5.2 – Automatic Stays