Motions to Reopen Immigration Cases

What a Motion to Reopen Is

A motion to reopen is a formal request asking an immigration court or the Board of Immigration Appeals to reconsider a case based on facts or circumstances that were not part of the original record. The idea is that something important was missing the first time: new evidence, a changed situation, or a procedural problem that prevented a fair hearing.

A motion to reopen is not the same as saying the judge was wrong. That is what an appeal is for. An appeal argues that the law or the facts in the record were evaluated incorrectly. A motion to reopen says that the record itself was incomplete, or that there is now information that changes the picture.

If a motion to reopen is granted, the case goes back to the immigration court or Board that entered the order. The previous order is vacated. The case is placed back on the active docket and proceeds as if it had not yet been decided. Granting a motion to reopen does not mean the person wins their immigration case. It means they get to have the case heard again with the new information or corrected procedure in place.

How It Differs From an Appeal

An appeal to the Board of Immigration Appeals challenges the legal reasoning or factual findings of an immigration judge based on the record that already exists. If the appeal succeeds, the Board either reverses the decision outright or sends the case back to the immigration judge with instructions.

A motion to reopen introduces something new. It might be new country condition evidence that was not available at the time of the original hearing. It might be new facts about a pending legal matter, such as a family petition or a criminal case that has since been resolved. Or it might be evidence that the original hearing never should have happened in the way it did, because the person was not properly notified or was not properly represented.

Both tools can be used, sometimes in the same case. But the legal standards are different, the evidence required is different, and the consequences of timing a mistake are different.

The 90-Day Deadline and Its Exceptions

Under federal regulations, a motion to reopen must generally be filed within 90 days of the final order of removal. This deadline appears in 8 C.F.R. 1003.2 for Board of Immigration Appeals proceedings and in 8 C.F.R. 1003.23 for immigration court proceedings.

Ninety days passes faster than people expect. If someone is trying to gather evidence, track down a prior attorney, or simply understand what happened, the deadline can slip. And once it does, the options narrow significantly.

There are recognized exceptions to the 90-day deadline. They are not easy to use, but they exist.

Changed country conditions. A motion to reopen based on changed conditions in the country of removal has no time limit under 8 C.F.R. 1003.2(c)(3)(ii). If conditions have materially worsened since the original hearing, a motion can be filed years or even decades later. The key is showing that the change is genuine, that the evidence is new and not previously available, and that it would affect the outcome if the case were reheard. This is the most commonly available exception for older cases.

In absentia orders and lack of notice. If someone was ordered removed because they did not appear at a hearing, and they did not appear because they were never properly notified, a motion to rescind the in absentia order can be filed regardless of when the order was entered. The regulations and the statute treat this as a separate category from the standard 90-day motion to reopen.

Joint motions. When both the person in proceedings and the Department of Homeland Security agree to reopen a case, there is no time limit. Joint motions to reopen are relatively rare but do happen, particularly when DHS has concluded that removal is not appropriate in a given case or when the agency is correcting its own error.

Sua sponte reopening. An immigration judge or the Board of Immigration Appeals has the power to reopen a case on its own motion, without anyone filing a request, in extraordinary circumstances. This authority exists but is rarely exercised. It cannot be relied upon as a primary strategy.

In Absentia Deportation Orders

An in absentia removal order is an order entered when the person in proceedings did not appear for their scheduled hearing. These orders can be entered quickly and without the person ever knowing the case went forward.

Many families discover that a family member has an in absentia order only when ICE arrests them years or decades after the original hearing date. The order may be from a hearing in the 1990s or early 2000s, when immigration court procedures were different, when families had moved, and when notice was sent to an address no one lived at anymore.

The statute, INA section 240(b)(5)(C), allows a motion to rescind an in absentia order if the person can show that they did not receive proper notice of the hearing, or that they failed to appear due to exceptional circumstances beyond their control, such as a serious illness or a death in the immediate family. For lack of notice motions, there is no time limit. For exceptional circumstances, the motion must be filed within 180 days of the order.

Notice is determined by what the immigration court records show. If notice was sent by mail to the last address the person provided, the court will presume it was received unless evidence shows otherwise. Returned mail, a history of address changes communicated to the court, and records showing no receipt of the notice are all relevant. These cases require digging through old immigration court files and postal records, which is why early legal involvement matters so much.

Ineffective Assistance of Counsel: Matter of Lozada

When a prior attorney's serious mistakes contributed to a bad outcome, a motion to reopen may be available on the ground of ineffective assistance of counsel. This is one of the more demanding types of motions to reopen, because the standard requires specific procedural steps in addition to showing that the attorney's conduct was seriously deficient and that it affected the outcome.

The framework comes from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and it has three requirements.

First: the motion must be supported by an affidavit from the person in proceedings. The affidavit must describe the agreement with the former attorney, what the attorney was retained to do, and specifically how the attorney failed to carry out that agreement.

Second: the former attorney must be informed of the allegations and given an opportunity to respond. The former attorney's response, or a record showing they were notified and chose not to respond, must be part of the record presented to the court.

Third: the motion must include a statement about whether a complaint has been filed with the appropriate bar disciplinary authority. If a complaint has not been filed, the motion must explain why. Courts have accepted explanations such as the person being unable to locate the attorney or the conduct not rising to the level of a bar violation, but the explanation must be there.

In addition to satisfying all three Lozada requirements, the motion must show that the attorney's conduct was so deficient that it amounted to a failure of the right to counsel, and that there is a reasonable likelihood the outcome would have been different with competent representation. Showing prejudice is often the hardest part.

Cases where ineffective assistance claims are most common include situations where the prior attorney failed to file a timely appeal, failed to present available evidence, gave wrong advice about the risks of proceeding without counsel, or failed to appear at a critical hearing.

What Reopening Actually Means in Practice

When a court grants a motion to reopen, it is not granting immigration relief. It is not saying the person can stay in the United States. It is taking the case back from a closed state and putting it back on the active docket. The case then proceeds from the point at which the original error or missing information became relevant.

In practical terms, this usually means: the removal order is vacated, the person is again in removal proceedings, and the case works toward a new merits hearing. That hearing will apply current law and the current facts. Whatever changed since the original order, whether the country conditions, a new family petition, a criminal record that has since been cleared, or a legal argument that was not available before, is now part of the case.

This also means that reopening a case can take a significant amount of time. Immigration courts have long dockets. A case that is reopened may not get to a final hearing for months or years, depending on the court's calendar and the complexity of the issues.

In the meantime, if a stay of removal is in place, the person typically remains in the United States while the reopened case works through the system. If no stay is in place, the person may be removed even while the motion to reopen is pending before the court. This is why every motion to reopen case requires an immediate assessment of the removal risk and, if necessary, an emergency stay request filed alongside the motion.

Why These Cases Are Document-Intensive and Time-Sensitive

A strong motion to reopen is not a short letter. It is a legal brief supported by a substantial documentary record. The court is being asked to take back a case it has already decided. That requires a compelling reason, and compelling reasons need to be shown with evidence, not just described.

For changed country conditions, that means current country condition reports, news articles, human rights organization reports, and often expert declarations about the situation in the specific country or region at issue.

For in absentia orders, it means the original immigration court file, postal records, a record of the addresses the person lived at during the relevant period, and any other documentation showing what notice was sent and whether it was received.

For ineffective assistance of counsel claims, it means the full record of the prior representation, the prior attorney's file if it can be obtained, the Lozada affidavit, and the correspondence with the prior attorney giving them notice of the allegations.

All of this takes time to gather. When the 90-day clock is running, or when a removal date has been set, there is very little of it. The earlier an attorney gets involved, the more complete the record that can be built.

Frequently Asked Questions

Can a deportation order from the 1990s be reopened?

Sometimes, yes. Age alone does not close the door. If you were ordered removed in absentia because you never received notice of your hearing, there is no strict time limit on a motion to rescind the order. If country conditions have changed significantly since the order was entered, a motion to reopen based on changed circumstances also has no time bar. What matters is whether the facts of your specific case fit one of the recognized exceptions to the 90-day deadline. An attorney has to review the original order, what court entered it, why the order was entered, and what has changed since.

What if I never received notice of my hearing?

An in absentia order entered because someone did not appear at a hearing they were never properly told about can be rescinded. The law requires that notice of a hearing be sent to the last address the person provided to the immigration court. If that notice was returned undelivered, or if you moved and the address on file was wrong through no fault of your own, that record may support a motion to rescind. You will need to show the court that you did not receive proper notice and that you did not knowingly fail to appear. This is a fact-intensive argument that requires the immigration court file and any postal records.

What if my old lawyer failed me and I missed my hearing or my deadline?

Attorney error is a recognized basis for a motion to reopen, but the standard is demanding. The Board of Immigration Appeals requires that ineffective assistance claims follow the procedures set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988): a detailed affidavit about the agreement with the prior attorney, notice to that attorney giving them an opportunity to respond, and a statement about whether a bar complaint has been filed or an explanation of why not. Simply saying the old lawyer made a mistake is not enough. The motion must follow the procedural framework carefully, document the harm caused by the error, and explain how the outcome would have been different with competent representation.

Does filing a motion to reopen stop a deportation from happening?

No. Filing a motion to reopen does not automatically stay removal. A separate emergency motion for a stay of removal must be filed alongside the motion to reopen, and the court must actually grant that stay. If ICE has scheduled a removal and you file a motion but do not have a stay in place, removal can still proceed. This is one of the most important practical points about motions to reopen: the stay request is not automatic, and acting before the scheduled removal date is essential.

What is the difference between a motion to reopen and an appeal?

An appeal asks a higher court or the Board of Immigration Appeals to review whether the immigration judge made a legal error in the decision that was entered. A motion to reopen asks the court or the Board to consider new facts or evidence that were not part of the original record, or to correct a procedural problem like an in absentia order or ineffective assistance. Appeals generally cannot rely on new evidence. Motions to reopen are specifically for situations where something important was missing or went wrong. In some cases both may be available; in others only one of the two paths applies.

How long does a motion to reopen take?

It depends on which court received the motion, the complexity of the case, and the court's current docket. The Board of Immigration Appeals generally takes longer than a single immigration judge to rule on a motion. There is no fixed timeline. During that period, if a stay of removal is in place, the person typically remains in the country or in detention while waiting. This uncertainty is one of the hardest parts of the process, and it is why building the strongest possible motion from the start matters.

Working With Our Firm

Harry Asatrian handles motions to reopen before New Jersey immigration courts and the Board of Immigration Appeals. These cases require a fast review of the original order, the procedural history, and the current facts to determine which path, if any, is open and how much time remains.

Call (973) 735-2716 or use the contact form. If a removal has been scheduled, call rather than write. Our office is at 72 South Maple Avenue, 1st Floor, Ridgewood, NJ 07450.