Motions to Reopen or Reconsider: Fixing Old Removal Orders

At a glance (120 words): If you or a loved one has an old removal (deportation) order, you may still have options. Two powerful tools are Motions to Reopen and Motions to Reconsider. A motion to reopen asks the court to look at new, material evidence that was not available at the time of the original decision (for example, a new marriage to a U.S. citizen with hardship evidence, newly discovered records, or changed country conditions for asylum). A motion to reconsider argues the court made a legal or factual error based on the record as it existed. Strict deadlines apply, but there are important exceptions (joint motions, lack of notice, changed-country-conditions, and equitable tolling). Getting records (FOIA), choosing the right motion, and submitting organized, trauma-informed evidence are critical to success.

Key points:

• Reopen = new facts/evidence; Reconsider = legal/factual error on the existing record.
• Deadlines are tight, but exceptions and joint motions can remove time/number limits.
• Motions do not automatically stop removal; request a written stay when needed.
• FOIA your A-file and court records before filing to avoid surprises.
• Local knowledge of Reno immigration practice and EOIR rules helps avoid rejections.

What is a Motion to Reopen?

A motion to reopen asks an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) to revisit the case because of new, material evidence that was not available or could not reasonably have been presented earlier. Typical examples include new qualifying-relative hardship evidence, newly available corroborating documents, or changed country conditions supporting asylum/withholding/CAT. The motion should attach sworn statements, documentary proof, and—when appropriate—a copy of the relief application you seek to pursue if reopened.

What is a Motion to Reconsider?

A motion to reconsider argues that the prior decision contained a legal or factual error. It relies on the existing record (not new facts) and should cite statutes, regulations, BIA/Attorney General precedent, and relevant circuit law. Reconsider is about correcting the law applied to your case; reopen is about adding new facts.

Deadlines & Exceptions

• Typical deadlines: 90 days to file a motion to reopen; 30 days to file a motion to reconsider (counted from the final decision).
• In absentia orders (missed hearing):
  • Lack of notice: may be filed at any time if notice was defective.
  • Exceptional circumstances: generally within 180 days.
• Changed country conditions: asylum/withholding/CAT claims can support reopening at any time if evidence was not available and is material.
• Joint motions: if DHS agrees to reopen, time/number limits generally do not apply.
• Equitable tolling: may extend deadlines for issues like ineffective assistance of counsel (follow Lozada requirements), fraud, or other extraordinary barriers—if you act with diligence.

Note: Rules vary by jurisdiction and procedural posture (IJ vs. BIA). Always check current EOIR policy and circuit precedent.

Does a Motion Stop Removal?

No. Filing a motion does not automatically stay (pause) removal. If you need protection while your motion is pending, file a stay request with the IJ, BIA, or federal court as appropriate. Keep evidence of any travel/medical risks, family hardship, and equities ready to support the stay.

First Steps: Records & Strategy

• FOIA the A-file and court file: Request records from USCIS, CBP, ICE/ERO, EOIR, and (if relevant) FBI. Identify prior applications, warnings, and transcripts.
• Timeline & ground of removal: Pin down what happened and why, including any missed-hearing issues or counsel errors.
• Pick the right motion: Reopen vs. Reconsider—or both (file separately and tailor each).
• Relief map: If reopened, what will you apply for—cancellation, adjustment, asylum/withholding/CAT, or termination for prosecutorial discretion?
• Stay planning: Decide whether to request a stay and prepare supporting evidence.

Building a Strong Motion to Reopen

Successful motions are organized and evidence-driven:

• New, material evidence: Medical/mental-health records, school IEPs, expert country-conditions reports, updated identity/relationship proof, and corroborating affidavits.
• Why it wasn’t available earlier: Explain diligence and barriers (trauma, lack of notice, prior counsel failures, late-obtained records).
• Clear relief plan: Attach the application you seek to file upon reopening, with exhibits and legal argument.
• Trauma-informed presentation: Avoid inconsistencies; explain memory gaps; use professional evaluations where appropriate.

Building a Strong Motion to Reconsider

• Pinpoint error precisely: Quote the decision and cite the law it misapplied.
• Use controlling authority: BIA/AG precedent and your circuit’s binding cases.
• Stay within the record: No new facts; argue that, even on the existing evidence, the law compels a different outcome.

Filing Mechanics & Common Rejections

• Where to file: With the IJ (if that was the last decision) or the BIA (if the BIA decided). Verify addresses, fees, and forms.
• Service on DHS: Properly serve the motion on the correct DHS office.
• Formatting: Follow page limits, caption rules, index of exhibits, and certificate of service.
• Briefing: Expect a briefing schedule if the tribunal requests one; meet all deadlines.
• Departed respondents: Some jurisdictions limit motions filed after removal; strategy may involve joint motions or alternate avenues.

Real-World Reno Examples

• Joint reopen for new relief: After domestic-violence evidence emerged, DHS agreed to a joint motion; the IJ reopened and terminated, allowing consular processing to move forward.
• Changed-conditions asylum: Country reports and expert affidavits documented new risks to the respondent’s group; the BIA reopened despite the 90-day limit.
• Ineffective assistance & tolling: Prior counsel filed the wrong form; the respondent diligently pursued remedies, met Lozada steps, and won equitable tolling to reopen.

FAQs

What’s the difference between reopen and reconsider?
Reopen = new, material evidence; Reconsider = error of law or fact based on the record as it stood.

What are the usual deadlines?
90 days to reopen, 30 days to reconsider. Exceptions exist for lack of notice, changed country conditions, joint motions, and equitable tolling.

Can I file after I was deported?
Sometimes. Options may include a joint motion, changed-conditions reopening, or other court-approved exceptions. Jurisdiction matters.

Does filing a motion stop my removal?
No. You must request a stay of removal from the appropriate tribunal.

Do I need a lawyer?
Motions are technical, deadline-driven, and vary by jurisdiction. Skilled counsel improves your chances and helps avoid rejections.

How Monrreal Law Can Help

We obtain your records, map deadlines and options, and draft motions tailored to your facts. Our team prepares evidence (medical, psychological, and expert reports), coordinates stays when needed, and advocates through EOIR and BIA procedures.

Next step: Request a confidential consult with Monrreal Law – Immigration Services. Learn more from official sources: BIA Practice Manual and EOIR Policy Manual.

This article is general information, not legal advice. Laws and policies change; consult an attorney about your case.