Headman Law Group editorial team
Published July 22, 2026
Motions to reopen are the emergency-brake mechanism of removal proceedings. When a case has been lost or dismissed, the MTR is often the only remaining tool. But most motions fail because they misstate the standard, miss the deadline, or fail to show new evidence that could not have been presented earlier. Understanding the framework prevents wasting the one bite at the apple.
Where to file: IJ or BIA
Jurisdiction depends on where the case last sat. If the immigration judge issued the last order and no appeal was taken (or the appeal was withdrawn), the motion goes back to the IJ. If the BIA issued the last decision — whether affirming, reversing, or dismissing an appeal — the motion goes to the BIA. Filing in the wrong forum wastes months. Governing regulations are at 8 CFR 1003.23 (IJ motions) and 8 CFR 1003.2 (BIA motions).
The 90-day deadline and its exceptions
The general rule: one motion, filed within 90 days of the final administrative order. Four categorical exceptions matter in practice.
1. Changed country conditions (asylum cases)
For applicants seeking to reopen for asylum, withholding, or CAT relief, the deadline is waived when the movant shows changed conditions in the country of removal that could not have been raised earlier. This is not 'my personal situation changed' — it requires evidence of a shift in country conditions (new government, new persecution of a group, new war, new pandemic response) documented by State Department reports, news articles, expert declarations, and organizational reports.
2. In absentia orders (INA 240(b)(5)(C))
If you missed a hearing and got ordered removed in absentia, you can file a motion to reopen at any time if you did not receive proper notice. If your absence was due to exceptional circumstances (serious illness of you or an immediate family member, or serious medical emergency), you have 180 days from the order. Notice challenges are more common than exceptional-circumstances motions — many NTAs were mailed to old addresses or lacked the hearing date entirely.
3. Ineffective assistance of counsel
Matter of Lozada set the framework: an affidavit describing what prior counsel did wrong, notice to prior counsel with an opportunity to respond, and evidence of a bar complaint (or explanation why not filed). Ineffective assistance motions must show both deficient performance AND prejudice — meaning a reasonable probability of a different outcome. The 90-day deadline applies but is subject to equitable tolling in some circuits.
4. Joint motions with DHS
A motion filed jointly with ICE Office of Principal Legal Advisor has no numerical or time limits. This becomes possible when circumstances have materially changed — the person qualifies for a family petition that wasn't available, has proven exceptional post-order rehabilitation, or DHS decides not to oppose. Prosecutorial discretion policies (variable by administration) affect willingness to join.
The prima facie eligibility requirement
A motion to reopen must attach the underlying application that will be filed if reopening is granted — the I-589, I-485, I-751, or cancellation application, complete with supporting evidence. The judge or BIA reviews whether you show a prima facie case that the relief could be granted on the record submitted. Weak, unsupported, or half-drafted underlying applications sink otherwise-good motions.
New evidence that wasn't previously available
- New medical diagnoses of qualifying relatives (for cancellation hardship)
- New country conditions reports post-dating the original hearing
- New criminal law developments (a conviction later vacated, or a Padilla-based post-conviction relief order)
- Newly discovered facts that reasonably could not have been known at the time — for example, a witness who has recently come forward, or documents held by an ex-spouse just obtained
- Substantive changes in immigration law (a Supreme Court decision, a new BIA precedent) that create eligibility
Discretionary vs mandatory grants
Even where a motion meets the statutory requirements, reopening is generally discretionary. Judges consider the strength of the underlying claim, the movant's compliance with prior orders, criminal history, and whether the motion appears to be a delay tactic. INS v. Doherty and Kucana v. Holder shape the discretionary framework. Joint motions and in absentia motions on notice grounds are more mandatory in character.
Filing mechanics
Motions to reopen filed with the IJ use the immigration court e-filing system (or paper in a few remaining courts). BIA motions go to the Board's electronic docket. Filing fees are $110 for both (subject to fee waivers on Form EOIR-26A for indigency). Serve a copy on the opposing DHS attorney. Attach a proposed order, a table of contents, a brief with citations, the underlying application, and all evidence.
Next steps
If you have a final order of removal, check the date carefully — 90 days from that order is your primary deadline. Even if the 90 days have passed, consider whether an exception applies, whether newly available evidence exists, or whether DHS might join a motion. Motion practice is technical and fact-heavy; a rushed filing usually fails. Give the case at least 4-6 weeks of preparation whenever the deadline permits.
