Lost Your Immigration Hearing? Let's Talk About Reopening Your Case

A removal order after a lost hearing can feel sudden. Many readers are working out what to file next, often for a parent, spouse, or friend.

After a loss in immigration court, you can appeal to the Board of Immigration Appeals (BIA), file a motion to reconsider, or file a motion to reopen. An appeal and a motion to reconsider challenge the ruling for an error. A motion to reopen brings new facts to the court. The right choice depends on what went wrong at the hearing and whether new facts exist. Filing does not always stop removal, so timing matters.

This guide explains when a motion to reopen an immigration case after losing a hearing fits, and how it compares to the other routes.

The Three Main Options After an Immigration Judge Rules Against You

You have three main routes, and each one fits a different problem. A BIA appeal asks the Board to review the judge’s conclusions. A motion to reconsider asks the judge to re-examine the ruling. A motion to reopen asks the court to hear facts it did not have before.

The judge’s decision can be oral or written. It must include a finding on whether the person is inadmissible or deportable, and the reasons for the ruling, under 8 C.F.R. § 1240.12.

Each route has its own clock and its own rules. The first step is to pin down the date of the decision. A motion to reopen is also limited to one filing, with exceptions. Two questions decide the route: what went wrong, and do you have new facts?

When a BIA Appeal Is the Right Route

A BIA appeal fits when the judge applied the law wrong or made a finding the record does not support.

The appeal starts with Form EOIR-26, the Notice of Appeal, filed directly with the Board. Under 8 C.F.R. § 1003.3, the appeal is not properly filed unless the Board receives it, with all required documents, fees or fee waiver requests, and proof of service, within the time the rules set.

The notice must say what is wrong. It must identify the findings of fact or conclusions of law being challenged. If the issue is legal, it must cite supporting authority. For discretionary relief, it must say whether the error concerns eligibility or how the judge used discretion.

The deadline runs from the oral decision, or from the mailing or electronic notice of a written decision. If the last day is a Saturday, Sunday, or legal holiday, it moves to the next business day, per 8 C.F.R. § 1003.38.

A common mistake is a vague notice. Under the same section, any issue not raised in the Notice of Appeal is deemed waived. A short notice can close off an argument before the Board reads the record.

Motion to Reconsider: Challenging a Legal Error

A motion to reconsider asks the court to look again at its ruling because the ruling contains an error.

This route fits when the judge got the law or the facts wrong based on the record already before the court. The motion goes to the immigration judge who decided the case, unless jurisdiction is vested with the Board of Immigration Appeals, under 8 C.F.R. § 1003.23.

The statute limits how many times a person may ask. For a decision that the person is removable, the alien may file one motion to reconsider, per 8 U.S.C. § 1229a.

A motion to reconsider does not add new facts. It asks the decision-maker to fix an error in what it already decided.

Timing matters here too. How long a case takes depends on many factors, and every case is different. Courts move at their own pace. Check the deadline for your specific order before you rely on any date, and confirm the order date and any mailing date on the paperwork.

Motion to Reopen: Bringing New Facts or Circumstances to the Court

A motion to reopen fits when new facts or evidence were not available at the earlier hearing.

Under 8 C.F.R. § 1003.23, the motion must state the new facts that would be proven at a hearing if it is granted. It must be supported by affidavits and other evidence.

The court will not grant it unless the evidence is material. The evidence must also have been unavailable and could not have been presented at the first hearing. Changed conditions in a home country can be one kind of new fact. The evidence must show what changed.

If the motion asks for relief, the application and its supporting documents must come with it. The judge may deny a motion even after a basic showing for relief.

The general deadline is 90 days after the final administrative decision, under 8 C.F.R. § 1003.2. The regulation sets exceptions. For the broader court process, read our removal defense overview.

Deadlines and Exceptions for In Absentia Orders

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

The judge may enter one only if the government shows, by clear, unequivocal, and convincing evidence, that the person is removable. Written notice of the hearing and its consequences must also have been provided. See 8 C.F.R. § 1003.26. Written notice sent to the most recent address the person gave is considered sufficient, under the same section.

This track has its own rules. Under 8 C.F.R. § 1003.23, a motion to reopen exclusion hearings based on the immigration judge’s improper entry of an order of exclusion in absentia must include evidence that the alien had reasonable cause for failing to appear. This exclusion-hearing rule does not set the deadline or grounds for reopening a removal order entered in absentia.

Oral notice carries a heavy cost. If, at the time of the written notice of the hearing, the person was also given oral notice, in a language the person understands, of the time and place of the proceedings and of the consequences of failing to attend, and the person did not attend for reasons other than exceptional circumstances, the person is not eligible for certain forms of relief for 10 years after the final order of removal is entered (8 U.S.C. § 1229a(b)(7)). See 8 U.S.C. § 1229a.

So the first question is whether notice was proper. The address on file matters. Review the notice paperwork closely before you choose a route.

Where Each Motion Is Filed and What It Must Include

A motion goes to the court that holds the record. If the Board made the last decision, the motion goes to the Board.

Under 8 C.F.R. § 1003.2, a request to reopen a case the Board decided must be a written motion to the Board. Filing requirements for the immigration court appear in 8 C.F.R. § 1003.31.

A complete filing usually includes:

• The motion, stating the grounds and the relief sought.
• Affidavits, declarations, and copies of evidence.
• The application for relief, when the motion asks for one.
• The filing fee, or a fee waiver request.

Fees follow 8 C.F.R. § 1003.24. A fee is generally required for a motion to reopen or reconsider, with listed exceptions. The judge may waive a fee on a showing of inability to pay, supported by an affidavit or declaration.

Attorneys must file electronically in eligible cases, under 8 C.F.R. § 1003.31.

Stay rules matter. Under 8 C.F.R. § 1003.6, a decision generally cannot be carried out while an appeal is pending.

How the Choice Affects Other Relief Options

The route you choose can decide which later relief stays open.

A missed step can end an option. Any issue not raised in the Notice of Appeal is deemed waived, per 8 C.F.R. § 1003.38. A document not filed within the time the judge sets is also deemed waived, per 8 C.F.R. § 1003.31.

Because a party generally gets only one motion to reopen, an early filing with thin evidence can use up that chance. Build the record before you file.

Later relief also depends on your history. Options to review include:

• adjustment of status options for people who entered without inspection
• prior deportation waiver options
• green card after asylum denial

Frequently Asked Questions

Talk With Our Office About Your Order and Deadlines

If a deadline is running and you are unsure which route fits, our office can review your order with you.

You may be reading this for a parent, a spouse, or a friend. Making a legal choice from that position is hard, and you do not have to do it alone.

Adriana Gomez is the lawyer responsible for this page.

To start, use the contact form, call the office, or message us on WhatsApp. You can also book a paid consultation to review your specific order and dates. Consultations are paid, and our team explains the fee when you reach out.

This page is general information, not legal advice. Results turn on the facts of each case. A matter may be referred to another lawyer or firm if that is the better fit.