What Is a Motion to Reopen?
A motion to reopen asks the decision-maker to reopen a previously decided case based on new facts or evidence.
Basic requirements:
New facts that were not available at the time of the prior decision
Evidence supporting the new facts
Evidence must be material to the case outcome
Could not have been discovered or presented earlier despite due diligence
Motions to reopen are not opportunities to relitigate issues already decided. They are for genuinely new information.
When Is Motion to Reopen Appropriate?
New evidence becomes available: Documents, witnesses, or facts that were not available during the original proceedings.
Changed country conditions: For asylum cases, significantly changed conditions in the home country supporting relief.
Ineffective assistance of counsel: Prior attorney's errors significantly affected the outcome.
New qualifying relatives: Birth of U.S. citizen children or marriage that may affect relief eligibility.
Changed personal circumstances: New health conditions, family changes, or other material developments.
What Is a Motion to Reconsider?
A motion to reconsider argues that the previous decision was legally or factually incorrect based on existing evidence.
Basic requirements:
Error of law or fact in the prior decision
Supporting legal arguments or record citations
Based on existing evidence, not new information
Points out where the decision-maker went wrong
Motions to reconsider are essentially arguing the decision was wrong based on what was already presented.
When Is Motion to Reconsider Appropriate?
Legal error: The decision misapplied immigration law, regulations, or case precedents.
Factual error: The decision misinterpreted or overlooked evidence already in the record.
Procedural error: The decision violated procedural requirements.
Misunderstanding of facts: Clarifying how the decision-maker misunderstood what was presented.
What Are the Filing Deadlines?
Deadlines vary by type of motion and proceeding:
USCIS motions (Form I-290B):
Motion to reopen: 30 days from the decision date
Motion to reconsider: 30 days from the decision date
Some limited exceptions allow later filing
Immigration court motions:
Motion to reopen: 90 days from the final administrative decision
Motion to reconsider: 30 days from the final administrative decision
Several exceptions exist for extended deadlines
Missing deadlines usually forfeits your right to file. Calculate deadlines carefully and file early.
Are There Exceptions to Deadlines?
Yes, in limited circumstances:
Equitable tolling: In exceptional cases, courts may extend deadlines when extraordinary circumstances prevented timely filing.
Ineffective assistance of counsel: Lozada-based motions may be filed late if certain procedures are followed.
Government errors: If the government failed to properly notify you of decisions, deadlines may be extended.
Changed country conditions: Asylum cases may reopen beyond normal deadlines for changed country conditions.
Consult an attorney about deadline exceptions, as they are narrowly construed.
How Do You File a USCIS Motion?
File Form I-290B Notice of Appeal or Motion with USCIS.
Required elements:
Completed Form I-290B
Filing fee ($675)
Legal brief supporting the motion
Supporting evidence for motion to reopen
Argument identifying errors for motion to reconsider
File with the USCIS office that issued the original decision. Check form instructions for specific filing addresses.
What Must Be in Your Motion?
Statement of reasons: Clear explanation of why the decision should be reopened or reconsidered.
Supporting evidence: For motions to reopen, all new evidence supporting your claims.
Legal authorities: Citations to relevant statutes, regulations, and case law.
Affidavits if applicable: For ineffective assistance claims, affidavits explaining attorney failures.
Copies of prior decision: Reference the exact decision you are challenging.
How Do You File an Immigration Court Motion?
Immigration court motions are filed with the court that issued the decision.
Required elements:
Motion document with legal arguments
Supporting evidence
Filing fee (varies by motion type)
Proof of service on the opposing party
Any required supplemental forms
Follow the specific immigration court filing procedures. Each court has local rules that may affect filings.
What About Board of Immigration Appeals Motions?
If the BIA rendered the adverse decision, file motions with the BIA directly.
BIA motions follow similar principles but specific procedural requirements differ from immigration court motions.
Federal circuit courts have their own procedures for motions. Consult appellate attorneys for cases at those levels.
What Are Common Grounds for Motion to Reopen?
Ineffective assistance of counsel (Lozada claims): Your prior attorney's deficient performance affected your case outcome. Specific procedural requirements apply including:
Affidavit detailing attorney's agreement and deficient performance
Informing the attorney of the allegations and allowing response
Filing bar complaint or explaining why not
New evidence: Documents, witnesses, or facts that could not have been discovered or presented earlier.
Changed country conditions: Particularly for asylum cases where conditions in the home country have materially changed.
Eligibility for new relief: New basis for relief that was not available before.
What Evidence Supports Changed Country Conditions?
Country reports: State Department reports, human rights organization reports, news articles.
Expert affidavits: Country experts testifying about changed conditions.
Personal evidence: Incidents involving you, your family, or similar individuals.
Statistical evidence: Data showing increased violence, persecution, or targeted harm.
Changed country conditions must be genuine and material. Minor changes or cyclical issues typically do not justify reopening.
Motions and Removal Orders
Filing motions generally does NOT automatically stop removal:
Motion to reopen: Usually must be accompanied by motion for stay of removal if you have a removal order.
Motion to reconsider: Similarly, separate stay motion needed.
Without a stay, ICE can execute removal orders even while motions are pending.
How Do You Request a Stay of Removal?
File a motion for stay of removal with your motion to reopen or reconsider.
Demonstrate: likelihood of success on the merits of your motion, irreparable harm if removed, balance of equities favors a stay, and public interest in granting the stay.
Emergency stays may be requested in urgent circumstances. Document the urgency thoroughly.
Success Rates and Strategic Considerations
Motion success rates are generally low:
USCIS motions: Approval rates vary widely by case type but often below 20%.
BIA motions: Similarly limited success rates.
Immigration court motions: Depend heavily on case specifics and presenting judge.
Higher success factors include: strong new evidence, clear legal errors, ineffective counsel with proper Lozada compliance, and professional representation.
Should You File a Motion or Reapply?
Strategic decision depends on circumstances:
File motion when: Clear errors in original decision, new evidence available, time limits permit, reapplication options limited.
Consider reapplying when: Original decision was correct based on information available, new application with stronger evidence possible, time limits for motion have passed.
Consult an attorney about strategic options. Different paths may be available depending on your case.
Ineffective Assistance of Counsel Motions
Motions based on ineffective assistance have special requirements (Matter of Lozada):
Requirement 1: Provide a detailed affidavit about the agreement with counsel and describing the deficient performance.
Requirement 2: Inform the prior attorney of the allegations and give them opportunity to respond.
Requirement 3: File a bar complaint or explain in writing why you have not.
Meeting all three Lozada requirements is essential for ineffective assistance motions to succeed.
What Constitutes Ineffective Assistance?
Deficient performance: Attorney's conduct fell below professional standards. Examples include: missing deadlines, failing to prepare, not presenting available evidence, or incorrect legal advice.
Prejudice: The deficient performance affected the case outcome. You must show the result would likely have been different with competent representation.
Simple disagreement with strategy or unfavorable outcome does not constitute ineffective assistance.
