Reconsider, Appeal or Reopen? Choose the Right Filing After an Immigration Decision

You’ve lost in immigration court, or the Board of Immigration Appeals (BIA) has ruled against you. Now you’re weighing a motion to reconsider vs BIA appeal, and the two options sound alike.

The short answer: a motion to reconsider points to an error in the decision. A BIA appeal asks the Board to review the immigration judge’s ruling. Which one fits depends on why you lost and on the deadline already running.

Motion to Reconsider or BIA Appeal: The Short Answer

A motion to reconsider argues the decision got the law or the facts wrong. A BIA appeal asks the Board to review the decision itself. A motion to reopen is different again, because it brings new evidence.

Each tool has its own rules. They overlap less than the names suggest. Our parent guide on post-decision options after losing lays out the full set of choices. This page focuses on the three filings people most often compare.

Keep one question in mind as you read: what went wrong in the decision? The answer points toward the right filing.

What a Motion to Reconsider Asks the Board to Do

A motion to reconsider asks the deciding body to re-examine its ruling for an error of law or fact. It works from the record that already exists.

Before an immigration judge, the motion must state the reasons for it. It must specify the errors of fact or law in the judge’s prior decision, and it must be supported by pertinent authority (8 CFR 1003.23).

Before the Board, the request must be a written motion. That rule applies when a party asks the Board to reopen or reconsider a case it has decided (8 CFR 1003.2).

A legal error might be a rule applied to facts it doesn’t fit. A factual error might be a date or event the decision got wrong. The motion must point to the specific error.

One limit catches people off guard. A motion to reconsider can’t attack a decision that denied an earlier motion to reconsider (8 CFR 1003.23).

What a Motion to Reopen Asks the Board to Do

A motion to reopen asks the decision-maker to hear new facts. Those facts were not available earlier. This tool fits when your case turns on material evidence that was not available and could not have been discovered or presented at the first hearing.

The motion must state the new facts that will be proven at a hearing. It must be backed by affidavits or other evidence (8 CFR 1003.2).

The evidence must be material. It also must have been unavailable, and it could not have been found or presented at the earlier hearing. Without both, the motion won’t be granted (8 CFR 1003.2).

If the motion seeks relief, the application for that relief must come with it. 8 C.F.R. § 1003.2 reads: “A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” All supporting documents go with it too.

Many people miss this point. Even a well-supported motion can be denied. The Board may deny a motion to reopen even when the moving party makes a basic case for relief (8 CFR 1003.2).

Immigration courts apply a similar test. The evidence must be material and must not have been available earlier (8 CFR 1003.23). 8 C.F.R. § 1003.23 reads: “A motion to reopen will not be granted unless the immigration judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”

What a BIA Appeal Asks the Board to Review

A BIA appeal asks the Board to review an immigration judge’s decision. You file a Notice of Appeal (Form EOIR-26) directly with the Board.

Timing is strict. The clock runs from the date the judge states an oral decision. It also runs from the mailing or electronic notice of a written decision. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day (8 CFR 1003.38). The practitioner must identify themselves by name, accompanied by their signature, on any document filed or intended to be filed with the Board pursuant to an appearance under paragraph (g)(1) or (2) of this section (8 CFR 1003.38).

Common mistakes sink appeals. The notice must come with the fee or a fee waiver request (Form EOIR-26A). If the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is not filed within the specified time period indicated in paragraph (b) of this section, the appeal is not properly filed and the judge’s decision becomes final (8 CFR 1003.38). Any issue left out of the notice is deemed waived (8 CFR 1003.38).

The notice must say what you challenge. If you raise a legal question, cite your authority. An appeal is not properly filed unless it is received at the Board, along with all required documents, fees or fee waiver requests, and proof of service, within the time specified in the governing sections of this chapter (8 CFR 1003.3).

The Board does not gather new facts on appeal. If you need more fact-finding, you must file a motion for remand (8 CFR 1003.1).

Where no transcript is needed, briefs are due from both sides within 20 days of the Board’s briefing order. They can’t be due more than 35 days after the appeal was filed (8 CFR 1003.3).

Side-by-Side: Deadlines, Evidence, and What the Board Reviews

A reconsideration motion argues errors of fact or law in the immigration judge’s prior decision. A reopening motion adds new evidence. An appeal challenges specific findings in the judge’s decision.

Reconsideration stays within the existing record. Reopening and appeal follow different evidence rules: the Board does not engage in factfinding on appeal, and new evidence submitted on appeal may be deemed a motion to remand.

How to Choose Based on Why You Lost

Start with the reason the case was lost. That reason points toward the filing.

The decision got the law or facts wrong. A motion to reconsider or a BIA appeal can fit. Reconsideration targets specific errors in the ruling. An appeal lets the Board review the findings you challenge.

The judge never saw key evidence. A motion to reopen fits this situation. The evidence must be material, and it could not have been presented earlier.

DHS appealed a decision in your favor. DHS can appeal too. Both sides then file briefs under the Board’s schedule (8 CFR 1003.3).

One case can support more than one filing. Which filing fits depends on the facts of your case and on the deadline already running.

Timing Traps and What Filing Does Not Do

A filing does not automatically pause removal in every situation. The rules depend on the type of decision.

For a decision that can be appealed, it can’t be carried out during the time to appeal. It also can’t be carried out while an appeal is pending. Exceptions are provided under § 236.1 of this chapter, § 1003.19(i), and paragraph (b) of this section, and a waiver of the right to appeal is one such exception (8 CFR 1003.6). 8 C.F.R. § 1003.6 reads: “(b) The provisions of paragraph (a) of this section shall not apply to an order of an Immigration Judge under § 1003.23 or § 242.22 of 8 CFR chapter I denying a motion to reopen or reconsider or to stay deportation, except where such order expressly grants a stay or where the motion was filed pursuant to the provisions of § 1003.23(b)(4)(iii).”

Denials of motions to reopen or reconsider work differently. 8 C.F.R. § 1003.6 reads: “(b) The provisions of paragraph (a) of this section shall not apply to an order of an Immigration Judge under § 1003.23 or § 242.22 of 8 CFR chapter I denying a motion to reopen or reconsider or to stay deportation, except where such order expressly grants a stay or where the motion was filed pursuant to the provisions of § 1003.23(b)(4)(iii).” The Board may, in its discretion, stay deportation while an appeal from such an order is pending if no stay has been granted by the Immigration Judge or a Service officer (8 CFR 1003.6).

Except when certified to the Board, the immigration judge’s decision becomes final when appeal is waived or when the appeal time runs out with no appeal filed, whichever comes first (8 CFR 1003.39).

Order and timing matter. A late or incomplete filing can close off options you would otherwise have.

Common Questions

Talk Through Your Decision With Our Team

If you’re weighing a motion to reconsider against a BIA appeal, bring your decision and filing dates to a conversation with our team. Those two documents show which deadline is running and what the judge actually ruled.

Adriana Gomez is the lawyer responsible for this page. Our team handles removal defense and BIA appeals, along with adjustment of status, family petitions, naturalization, and waivers. Consultations with the firm are paid.

To start, send your removal order and key dates through our contact form, or call the office or message us on WhatsApp.