5.7 - Motions to Reopen

 (a) Purpose — A motion to reopen asks the immigration court to reopen proceedings after the immigration judge has rendered a decision, so that the immigration judge can consider new facts or evidence in the case.

(b) Requirements — 

          (1) Filing — The motion should be filed with a cover page labeled “MOTION TO REOPEN” and comply with the deadlines and requirements for filing.  See subsection (c), below, Chapter 5.2 (Filing a Motion), Appendix E (Cover Pages).  If the respondent is represented by a practitioner of record or has received document assistance from a practitioner, the motion must be accompanied by a Form EOIR-28 or Form EOIR-61.  See Chapter 2.1. (Representation and Appearances Generally). To ensure that the immigration court has the respondent’s current address, a change of address form (EOIR-33/IC) should be filed with the motion.  Depending on the nature of the motion, a filing fee or fee waiver request may be required.  See Chapter 3.4 (Filing Fees).  If the motion is based on eligibility for relief, the motion must be accompanied by a copy of the application for that relief and all supporting documents, if an application is normally required.  See Chapter 5.2(g) (Application for Relief).

          (2) Content — A motion to reopen must state the new facts that will be proven at a reopened hearing if the motion is granted, and the motion must be supported by affidavits or other evidentiary material.  8 C.F.R. § 1003.23(b)(3).

          A motion to reopen is not granted unless it appears to the immigration judge that the evidence offered is material and was not available and could not have been discovered or presented at an earlier stage in the proceedings.  See 8 C.F.R. § 1003.23(b)(3).

          A motion to reopen based on an application for relief will not be granted if it appears the respondent’s right to apply for that relief was fully explained and the respondent had an opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief is sought on the basis of circumstances that have arisen subsequent to that stage of the proceedings).  8 C.F.R. § 1003.23(b)(3).

(c) Time Limits — As a general rule, a motion to reopen must be filed within 90 days of an immigration judge’s final order.  8 C.F.R. § 1003.23(b)(1).  (For cases decided by the immigration judge before July 1, 1996, the motion to reopen was due on or before September 30, 1996.  8 C.F.R. § 1003.23(b)(1).  There are few exceptions.  See subsection (e), below.

         Responses to motions to reopen are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge.

(d) Number Limits — A party is permitted only one motion to reopen.  8 C.F.R. § 1003.23(b)(1).  There are few exceptions.  See subsection (e), below.

(e) Exceptions to the Limits on Motions to Reopen — A motion to reopen may be filed outside the time and number limits only in specific circumstances.  See 8 C.F.R. § 1003.23(b)(4).  

          (1) Changed circumstances — The time and numerical limitations do not apply to a motion to reopen based on a request for asylum, withholding of removal (“restriction on removal”), or protection under the Convention Against Torture, that is premised 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. See 8 C.F.R. § 1003.23(b)(4)(i).  Motions based on changed circumstances must also be accompanied by evidence of the changed circumstances alleged.  See 8 C.F.R. § 1003.23(b)(3).

          (2) In absentia proceedings — There are special rules pertaining to motions to reopen following a respondent’s failure to appear for a hearing.  See Chapter 5.9 (Motions to Reopen In Absentia Orders).

          (3) Joint motions — Motions to reopen that are agreed upon by all parties and are jointly filed are not limited in time or number.  See 8 C.F.R. § 1003.23(b)(4)(iv).

          (4) DHS motions — For cases in removal proceedings, the Department of Homeland Security (DHS) is not subject to time and number limits on motions to reopen.  See 8 C.F.R. § 1003.23(b)(1).  For cases brought in deportation or exclusion proceedings, DHS is subject to the time and number limits on motions to reopen, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.  See 8 C.F.R. § 1003.23(b)(1).

          (5) Pre-9/30/96 motions — Motions filed before September 30, 1996, do not count toward the one-motion limit.

          (6) Battered spouses, children, and parents — There are special rules for certain motions to reopen by battered spouses, children, and parents.  INA § 240(c)(7)(C)(iv).

          (7) Other — In addition to the regulatory exceptions for motions to reopen, exceptions may be created in accordance with special statutes, case law, directives, or other special legal circumstances.  The immigration judge may also reopen proceedings at any time on their own motion.  See 8 C.F.R. § 1003.23(b)(1).

(f) Evidence — A motion to reopen must be supported by evidence.  See Chapter 5.2(e) (Evidence).

(g) Motions Filed Prior to Deadline for Appeal — A motion to reopen filed prior to the deadline for filing an appeal does not stay or extend the deadline for filing the appeal.

(h) Motions Filed While an Appeal is Pending — Once an appeal is filed with the Board of Immigration Appeals, the immigration judge no longer has jurisdiction over the case.  See Chapter 5.2(a) (Where to File).  Thus, motions to reopen should not be filed with the immigration court after an appeal is taken to the Board.

(i) Administratively Closed Cases — When proceedings have been administratively closed, the proper motion is a motion to recalendar, not a motion to reopen.  See Chapter 5.10(t) (Motion to Recalendar).

(j) Automatic Stays — A motion to reopen that is filed with the immigration court does not automatically stay an order of removal or deportation. 8 C.F.R. § 1003.23(b)(1)(v); see also Chapter 8 (Stays). For automatic stay provisions for motions to reopen to rescind in absentia orders, see Chapter 5.9(d)(4) (Automatic stay).

(k) Criminal Convictions — A motion claiming that a criminal conviction has been overturned, vacated, modified, or disturbed in some way must be accompanied by clear evidence that the conviction has actually been disturbed.  Thus, neither an intention to seek post-conviction relief nor the mere eligibility for post-conviction relief, by itself, is sufficient to reopen proceedings.