Reopening an Immigration Case? Start With the Right Steps

Getting a removal order can feel like the end of the case, but it is not always the final word. If you have a final order, you may be able to ask the immigration judge to reopen the case, unless jurisdiction is vested with the Board of Immigration Appeals, since the judge may reopen upon motion of DHS or the alien (reopening rule for immigration judges).

To reopen an immigration case, you file a written motion asking the immigration court or the Board of Immigration Appeals (BIA) to hear the case again. In most cases, the motion must be filed within 90 days of the final order, and it must state new facts or grounds.

This guide covers the main routes, the deadlines, and what to gather. It gives general rules, and each motion depends on the facts of its own case.

What It Means to Reopen an Immigration Case

A motion to reopen asks the court to review a decided case because of new facts that were not available at the earlier hearing.

An immigration judge may reopen a case on the judge’s own motion, or on a motion from the Department of Homeland Security (DHS) or the person in the case. The judge can do this unless the Board of Immigration Appeals has jurisdiction over the case (reopening rule for immigration judges).

A motion to reconsider is different. It argues that the judge made an error of fact or law in the decision. It must name those errors and be supported by legal authority.

Administrative closure is another route. The case is taken off the active calendar, but no final decision is made. That is not the same as reopening a final order.

There is also a limit on how many motions you can file. A party may file only one motion to reconsider and one motion to reopen, subject to the rule’s exceptions (reopening rule for immigration judges).

Deadlines to Reopen a Removal Order

A motion to reopen generally must be filed within 90 days of the final order of removal. A motion to reconsider generally must be filed within 30 days.

The Board follows a similar rule. A motion to reopen must be filed no later than 90 days after the final administrative decision, except as provided in paragraph (c)(3) of this section (Board reopening rule).

There are exceptions. A motion based on changed country conditions is not held to those time limits when it seeks asylum or withholding of removal, and the evidence is material and was not available earlier.

Deadlines are strict. If a filing is not made within the time the judge sets, the opportunity to file it is deemed waived (filing rules).

Because the limit turns on the type of order and the ground you raise, find the date of the final order first and write it down.

Reopening After an In Absentia Removal Order

An in absentia order is a removal order entered when a person does not attend a hearing.

For an order of deportation entered in absentia, a motion may be filed within 180 days after the order if the failure to appear was due to exceptional circumstances beyond the person’s control, such as serious illness of the person, or serious illness or death of an immediate relative. Less compelling reasons do not count (reopening rule for immigration judges).

Notice matters. Written notice sent to the most recent address the person gave is sufficient (in absentia rule).

The stakes are high. If you were given written notice of the time and place of the hearing and written notice of the consequences of failure to appear, and you fail to appear, the immigration judge shall order you removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence that you are removable and that written notice of the time and place of proceedings and of the consequences of failure to appear was provided to you or your counsel of record (immigration removal proceedings statute).

Start gathering proof now. Keep mail records, address history, and any notice you did or did not receive. Collect documents that show why you could not attend.

Grounds for Reopening: New Facts and New Eligibility

A motion to reopen must state new facts that were not available and could not have been presented at the earlier hearing. Those facts must also be material, meaning they matter to the case.

If the motion is for the purpose of submitting an application for relief, it must include the application for that relief and all supporting documents (Board reopening rule). 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.”

There is a catch with discretionary relief. The motion will not be granted if you were told about that relief and had a chance to apply at the first hearing. The exception covers circumstances that arose after that hearing. A family petition approved after the hearing may be one such circumstance.

If you are in removal proceedings, the immigration judge generally has exclusive jurisdiction over any adjustment of status application you file, unless you are an arriving alien, in which case different rules apply (adjustment jurisdiction rule).

Adjustment has limits. The statute bars adjustment for a person who has not kept a lawful status since entry, unless the failure came through no fault of their own or for technical reasons. The statute has other exceptions too (adjustment of status statute).

Reopening Based on Changed Country Conditions

A changed country conditions motion asks the court to consider evidence that conditions in the home country have materially changed since the hearing. That evidence must not have been available earlier.

Where the original asylum application was denied on a finding that it was frivolous, the alien is ineligible to file either a motion to reopen or reconsider, or for a stay of removal (reopening rule for immigration judges). Under the general rule, a motion to reopen is due 90 days after entry of a final administrative order of removal, deportation, or exclusion, or by September 30, 1996, whichever is later, subject to the exceptions in the regulation (8 C.F.R. § 1003.23).

That exception covers those forms of protection. It does not remove the time limit from every motion based on country conditions. 8 C.F.R. § 1003.23 reads: “The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply if the basis of the motion is to apply for asylum under section 208 of the Act or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.”

The evidence has to be material. It must also be something that could not have been discovered or presented at the earlier proceeding.

Your evidence should be material and show facts that were not available and could not have been discovered or presented at the former hearing, not what was already in your file (Board reopening rule). Board motions must be supported by affidavits or other evidentiary material (Board reopening rule).

How to Prove New Evidence and Support Your Motion

Your motion needs written support: a clear statement of the new facts, affidavits, and documents that back each one (Board reopening rule).

Organize your exhibits so each one matches a specific claim. Label them, date them where you can, and keep copies. Explain in plain words how each document connects to your ground.

Hardship evidence matters when the relief you want depends on it. Useful records often include family documents, work records, medical records, and proof of community ties.

The Board may deny a motion even when it seems to meet the basic requirements. The decision is within the Board’s discretion (Board reopening rule).

Your motion must also say whether the order is part of any court case, and whether a criminal case is pending against the person (Board reopening rule).

Filing Steps, Stays of Removal, and Ignoring a Removal Order

File your written motion with the court or Board that has the case, before the deadline. Ask for a stay if you need one.

Documents for the immigration court go to the court that has administrative control over the record (filing location rule). Attorneys and accredited representatives of record must file electronically in cases eligible for e-filing (filing rules).

Under 8 C.F.R. § 1003.24, a motion to reopen or reconsider must include a filing fee or a fee waiver request, except in these situations: the case is still pending before the Immigration Court; the motion asks only for a stay of removal, deportation, or exclusion; the motion seeks to reopen a deportation or removal order entered in absentia and is filed under section 240(b)(5)(C)(ii) of the Act (or section 242B(c)(3)(B) as it existed prior to April 1, 1997); the Department of Homeland Security files the motion; all parties agree to the motion and file it jointly; or a law, regulation, or directive specifically does not require a filing fee for it (fee rule). If you cannot pay a required fee, the judge may waive it. You must file an affidavit or unsworn declaration showing that you cannot pay.

A filing fee is not required for a motion requesting only a stay of removal, deportation, or exclusion. Whether a changed country conditions motion fits your case depends on the facts of each matter, so contact our office to discuss how this issue may apply to you. A motion does not automatically stop removal. For a motion to apply for asylum or withholding of removal based on changed country conditions, you may request a stay, and if the immigration judge grants it, you may not be removed while the motion is pending (reopening rule for immigration judges).

Leaving the country can end the motion. A motion cannot be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings after departing from the United States, and a departure after filing counts as a withdrawal (reopening rule for immigration judges). 8 C.F.R. § 1003.23 reads: “The time and numerical limitations set forth in this paragraph (b)(1) do not apply to motions by DHS in removal proceedings pursuant to section 240 of the Act.”

If you have received a court order, contact our office promptly to discuss your options. Deadlines run from the date of the final order: a motion to reconsider must be filed within 30 days, and a motion to reopen within 90 days, of the date of entry of a final administrative order, so waiting can close routes that a timely motion would have kept open.

Rules on forms, fees, and filing locations change. Confirm the current instructions before you file.

Talk With Our Office About Your Case

If a removal order, a missed hearing, or a closed case is hanging over your family, you don’t have to sort out the deadlines alone.

Readers often look up this topic for a spouse, parent, or child who is facing it. Before you call, gather the final order, any hearing notices, your address history, and documents showing why you missed a hearing or what has changed since then.

Consultations with our office are paid appointments.

You can reach our office by phone, through the contact form, or on WhatsApp. Some matters may need to be referred to another lawyer or firm, and our office will tell you if that applies.

Adriana Gomez is the lawyer responsible for this page.