Motions to Reopen

Motions to Reopen in the United States

Motions to Reopen in relation to Immigration Courts

(information based on the DoJ Manual)

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.

Requirements

Filing

The motion should be filed with a cover page labeled AMOTION TO REOPEN” and comply with the deadlines and requirements for filing. See (in this American law platform, in relation to immigration courts and judges) below, and Filing a Motion. If the Alien (person who is not a citizen or national of the United States) is represented, the attorney must file a paper, not an electronic, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See (in this American law platform, in relation to immigration courts and judges) Entering an appearance. To ensure that the Immigration Court has the alien’s current address, an Alien’s 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 (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) Application for relief.

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 (documents in which a person states facts, swearing that the facts are true and accurate) 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 (in this American law platform, in relation to immigration courts and judges) 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 alien’s right to apply for that relief was fully explained and the Alien 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).).

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 (in this American law platform, in relation to immigration courts and judges) below. Responses to motions to reopen are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

Number limits

A party is permitted only one motion to reopen. 8 C.F.R. § 1003.23(b)(1). There are few exceptions. See (in this American law platform, in relation to immigration courts and judges) below.

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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(4).

Changed circumstances

When a motion to reopen is based on a request for asylum, withholding of removal (“restriction on removal”), or protection under the Convention Against Torture, and it is premised on new circumstances, the motion must contain a complete description of the new facts that comprise those circumstances and articulate how those circumstances affect the party’s eligibility for relief. See (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(3).

In absentia proceedings

There are special rules pertaining to motions to reopen following an alien’s failure to appear for a hearing. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen In Absentia Orders.

Joint motions

Motions to reopen that are agreed upon by all parties and are jointly filed are not limited in time or number. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(4)(iv).

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 (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(1).

Pre-9/30/96 motions

Motions filed before September 30, 1996 do not count toward the one-motion limit.

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).

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 his or her own motion. See (in this American law platform, in relation to immigration courts and judges) 8 C. F. R. § 1003.23(b)(1).

Evidence

A motion to reopen must be supported by evidence. See (in this American law platform, in relation to immigration courts and judges) Evidence.

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.

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 (in this American law platform, in relation to immigration courts and judges) Where to file. Thus, motions to reopen should not be filed with the Immigration Court after an appeal is taken to the Board.

Administratively closed cases

When proceedings have been administratively closed, the proper motion is a motion to recalendar, not a motion to reopen. See (in this American law platform, in relation to immigration courts and judges) Motion to recalendar.

Automatic stays

A motion to reopen that is filed with the Immigration Court does not automatically stay an order of removal or deportation. See (in this American law platform, in relation to immigration courts and judges) Stays. For automatic stay provisions for motions to reopen to rescind in absentia orders, see (in this American law platform, in relation to immigration courts and judges) Automatic stay.

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.

Motions to Reopen in relation to I
mmigration Courts

(information based on the DoJ Manual)

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.

Requirements

Filing

The motion should be filed with a cover page labeled AMOTION TO REOPEN” and comply with the deadlines and requirements for filing. See (in this American law platform, in relation to immigration courts and judges) below, and Filing a Motion. If the Alien (person who is not a citizen or national of the United States) is represented, the attorney must file a paper, not an electronic, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See (in this American law platform, in relation to immigration courts and judges) Entering an appearance. To ensure that the Immigration Court has the alien’s current address, an Alien’s 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 (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) Application for relief.

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 (documents in which a person states facts, swearing that the facts are true and accurate) 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 (in this American law platform, in relation to immigration courts and judges) 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 alien’s right to apply for that relief was fully explained and the Alien 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).).

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 (in this American law platform, in relation to immigration courts and judges) below. Responses to motions to reopen are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

Number limits

A party is permitted only one motion to reopen. 8 C.F.R. § 1003.23(b)(1). There are few exceptions. See (in this American law platform, in relation to immigration courts and judges) below.

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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(4).

Changed circumstances

When a motion to reopen is based on a request for asylum, withholding of removal (“restriction on removal”), or protection under the Convention Against Torture, and it is premised on new circumstances, the motion must contain a complete description of the new facts that comprise those circumstances and articulate how those circumstances affect the party’s eligibility for relief. See (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(3).

In absentia proceedings

There are special rules pertaining to motions to reopen following an alien’s failure to appear for a hearing. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen In Absentia Orders.

Joint motions

Motions to reopen that are agreed upon by all parties and are jointly filed are not limited in time or number. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(4)(iv).

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 (in this American law platform, in relation to immigration courts and judges) 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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(1).

Pre-9/30/96 motions

Motions filed before September 30, 1996 do not count toward the one-motion limit.

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).

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 his or her own motion. See (in this American law platform, in relation to immigration courts and judges) 8 C. F. R. § 1003.23(b)(1).

Evidence

A motion to reopen must be supported by evidence. See (in this American law platform, in relation to immigration courts and judges) Evidence.

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.

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 (in this American law platform, in relation to immigration courts and judges) Where to file. Thus, motions to reopen should not be filed with the Immigration Court after an appeal is taken to the Board.

Administratively closed cases

When proceedings have been administratively closed, the proper motion is a motion to recalendar, not a motion to reopen. See (in this American law platform, in relation to immigration courts and judges) Motion to recalendar.

Automatic stays

A motion to reopen that is filed with the Immigration Court does not automatically stay an order of removal or deportation. See (in this American law platform, in relation to immigration courts and judges) Stays. For automatic stay provisions for motions to reopen to rescind in absentia orders, see (in this American law platform, in relation to immigration courts and judges) Automatic stay.

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.


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