People who lose their immigration court proceedings may be able to ask the court to reopen or reconsider their case.1
A motion to reopen a case in immigration court is based on new facts that were not known or in existence at the time of the original hearing.
A motion to reconsider is based on incorrect application of law or policy to the prior decision — such as a denial of constitutional rights.
Immigrants with cases in immigration court can generally file one motion to reopen and one motion to reconsider (or both at the same time).
A motion to reopen must generally be filed within 90 days following entry of a final administrative order of removal, deportation, or exclusion.
There are, however, some exceptions, especially for immigrants whose removal orders were issued “in absentia” (when the immigrant couldn’t attend, often because he or she was in custody).
To help you better understand motions to reopen an immigration court case, our California immigration lawyers discuss, below:
- 1. What is a motion to reopen?
- 2. How long do I have to file my motion?
- 2.1. What exceptions are there to the filing deadline?
- 2.2. Why would the government agree to reopen my case?
- 2.3. What constitutes “exceptional circumstances” allowing an “in absentia” removal order to be challenged later?
- 2.4. What is “equitable tolling”?
- 2.5. Equitable tolling based on ineffective assistance of counsel
- 2.6. The “Lozada” requirements for an ineffective assistance of counsel claim
- 3. What evidence do I need to provide in support of my motion?
- 4. Can I be deported while my motion is pending?
- 5. What happens if my motion to reopen is granted?
- 6. Can I appeal or try again if my motion is denied?
A motion to reopen allows an immigrant who loses his or her case in immigration court to present new or changed facts to the immigration judge.
The motion to reopen must state the new facts that will be proven at a hearing if the motion is granted. The facts must be supported by affidavits or other evidentiary material.2
Motions to reopen a case in immigration court must be based upon new facts or circumstances that have changed, or been discovered, since the original hearing.
If, on the other hand, the immigrant thinks the immigration judge made an error in law or procedure – such as denying his or her constitutional rights — the proper motion is a motion to reconsider. A motion to reconsider lets the immigration court revisit how the case was conducted.
Example: Ahmed lost his case contesting his removal for conviction of an “inadmissible crime.” During his case, he applied for and was denied asylum. But while he is awaiting deportation, conditions in his country worsen. These new conditions make it likely that if he is sent back, he will be persecuted. This is a changed fact that warrants reopening his case.
But let’s say instead that Ahmed had been at risk of persecution during his original hearing, but was never allowed to present evidence of it. That would be an error of law. The proper motion for Ahmed to bring would be a motion to reconsider.
Motions to reopen are often used, among other things, to apply for:
- Suspension of deportation,
- Asylum and withholding of removal,
- Relief under the U.N. Convention Against Torture (CAT protection),
- Adjustment of status,
- NACARA 203 relief, or
- Ineffective assistance of counsel.
Again, the immigrant is not entitled to reopen his or her case on any of these grounds unless there are new or changed facts that were not — and could not have been — raised during the original hearing.
With a few exceptions, a motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal.3
Exceptions to the 90-day deadline include:
- An “in absentia” order of removal – motion to reopen may be filed within 180 days if there were “exceptional circumstances,” or at any time if the sole reason the applicant failed to appear at the hearing is because he /she was in state or federal custody;4
- The government agrees to file a joint motion to reopen — no time limit;5
- Application for asylum or withholding of removal based on changed country conditions that could not have been discovered or presented at the prior hearing — no time limit.
- Battered spouses, children, and parents – no time limit if the motion is based on extreme cruelty or exceptional and extreme hardship to a relative who is a U.S. citizen or green card holder and the motion is accompanied by a cancellation of removal application.6
Sometimes Immigration and Customs Enforcement (ICE) or the Department of Homeland Security (DHS) will agree to file a joint motion to reopen. When the parties file jointly, the 90-day limitation becomes irrelevant.
For instance, an alien might have convincing evidence of health problems or other exceptional circumstances that make it likely that a motion would be granted.
In compelling cases, the government would rather simply reopen a case than expend time and energy fighting it.
2.3. What constitutes “exceptional circumstances” allowing an “in absentia” removal order to be challenged later?
An in absentia removal order may be rescinded upon a motion to reopen if the alien demonstrates that failure to appear was because of exceptional circumstances beyond the alien’s control.7
Exceptional circumstances can include (but are not limited to):
- Battery or extreme cruelty to the alien or any child or parent of the alien,
- Serious illness of the alien, or
- Serious illness or death of the alien’s spouse, child, or parent.8
In such a case, the applicant has 180 days to file a motion to reopen to rescind the in absentia order.9
In addition to the foregoing exceptions, the running of the 90 days (or the 180 days, if applicable) may sometimes be “tolled” (paused). This can occur during any period of time in which the immigrant is prevented from filing a motion to reopen because of deception, fraud, or error.10
Such a suspension of the running of time is known as “equitable tolling.”
The time period will only be equitably tolled, however, if the petitioner acted with due diligence in discovering the deception, fraud, or error.
This means that if you knew – or should have known — about the deception, fraud, or error, but you didn’t do anything about it, the time period will keep on running.11
To prevent this, an applicant for immigration relief should contact an experienced California immigration lawyer immediately after discovering the deception, fraud, or error.
Aliens whose lawyers engaged in fraudulent or erroneous conduct can take advantage of the equitable tolling doctrine.12
To prevail on an ineffective assistance of counsel claim, the alien must show two things:
- The alien’s lawyer failed to perform with sufficient competence; and
- The alien was prejudiced by the poor performance.13
The alien will not be able to win an effective assistance of counsel claim unless he or she acting with due diligence in discovering the counsel’s fraud or error.14
To do this, the alien must show that he or she complied with the procedural requirements of Matter of Lozada, as set forth below.
Note that the time period begins running again once the immigrant meets with new counsel to discuss his file.15
A motion to reopen based on ineffective assistance of counsel must generally meet three procedural requirements set forth by the BIA. Under Lozada, the petitioner must:
- Submit an affidavit explaining the agreement with former counsel regarding legal representation,
- Present evidence that prior counsel has been informed of the allegations and given an opportunity to respond, and
- Show that a complaint against prior counsel was filed with the proper disciplinary authorities, or
- Explain why no such complaint was filed.16
A motion to reopen must be supported by the new evidentiary material the immigrant wants to introduce. This will usually be in the form of affidavits and possibly official reports about changed conditions in the alien’s home country.
The applicant must show that the previously unavailable material evidence could not have been discovered or presented at the former hearing.17
If necessary, the motion should also be accompanied by a completed application for relief (such as an asylum application).18
Yes. Filing a motion to reopen does not change the underlying deportation or removal order.19
However, a removal order will be automatically stayed by a motion to reopen if the removal order was made “in absentia” – meaning the defendant was not present at the hearing due to being in custody.20
And unlike in the past, a motion to reopen no longer automatically terminates when the petitioner is removed from the country.21
Additionally, people petitioning to stay in the country on humanitarian grounds (such as battered spouses and children) may also qualify to have their removal orders stayed.
Your California immigration lawyer can help you decide whether you qualify for an exception.
If the petitioner files a motion to reopen and is still in the country after the expiration of a voluntary departure period, the motion to reopen will be denied based on petitioner’s failure to depart.22
This is known as the “Fugitive Disentitlement Doctrine.” The idea is that by refusing to leave when promised, the alien has given up the right to reopen his case.
If the immigration courts grants a motion to reopen the immigrant will be allowed to present the new evidence.
The immigration judge will then rule on the case based on the new evidence presented.
Yes. While in general, an alien can only file one motion to reopen23 there are exceptions (especially in cases of “in absentia” removal).
But denial of motions to reopen can be appealed to the Board of Immigration Appeals (BIA) as can most underlying cases. And if the BIA denies the appeal, the matter can usually be further appealed to the United States Court of Appeals for the Ninth Circuit.
Just as with motions to reopen, there is a limited time period in which an immigration court case can be appealed.
People whose petitions have been denied or cases have been lost should contact a lawyer immediately to keep from losing their right to appeal.
Need help reopening your immigration case? Call us…
If you or someone you know has been denied relief in immigration court, we invite you to contact us for a free consultation.
Call us or fill out the form on this page to discuss your case with a knowledgeable lawyer.
But don’t delay – you have just 90 days from the final order in your case to ask the immigration court to reopen it.
- See 8 CFR § 1003.23 — Reopening or Reconsideration before the Immigration Court.
- 8 USC § 1229a (c)(7).
- 8 USC 1229a (c)(7)(C)(i).
- See 8 C.F.R. § 1003.2(c)(3) (referring to 8 CFR § 1003.23(b)(4)(ii) and (b)(4)(iii)(A)(2)).
- See 8 C.F.R. § 1003.2(c)(3)(iii); Bolshakov v. INS, 133 F.3d 1279 (9th Cir. 1998).
- 8 USC § 1229a (c)(7)(C)(4).
- 8 USC § 1229a (b)(5)(C)(i).
- 8 U.S.C. § 1229a (e)(1).
- See 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii) and (b)(4)(iii)(A)(1); Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003).
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003). See also Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011); Fajardo v. INS, 300 F.3d 1018 (9th Cir. 2002).
- Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc).
- See, e.g., Iturribarria, endnote 10.
- See Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005); Salazar-Gonzalez v. Lynch, 798 F.3d 917 (9th Cir. 2015).
- Luna v. Holder, 659 F.3d 753 (9th Cir. 2011).
- See Iturribarria, endnote 10; Mejia-Hernandez, endnote 10.
- Matter of Lozada, 19 I. (BIA 1988).
- See INS v. Doherty, 502 U.S. 314 (1992).
- See 8 U.S.C. § 1229a(c)(7)(B); 8 CFR § 1003.2(c)(1); INS v. Wang, 450 U.S. 139, 143 (1981) (per curiam).
- See Pablo v. INS, 72 F.3d 110 (9th Cir. 1995).
- See 8 CFR § 1003.23(b)(4)(ii); 8 CFR § 1003.2(f).
- See ReyesTorres v. Holder, 645 F.3d 1073 (9th Cir. 2011).
- See Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir. 2008).
- See 8 U.S.C. § 1229a(c)(7)(A) and (c)(6)(A); 8 C.F.R. § 1003.2(c)(2) and (b)(2); Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).