Motions to Reopen an Immigration Case: Deadlines and Grounds

When an immigration case ends badly — a removal order, a missed hearing, a claim that was never presented — the law still leaves a narrow door: the motion to reopen. It asks the immigration judge or the Board of Immigration Appeals to look at the case again because of something that was not, and could not have been, in the record the first time.

Reopening is governed by strict deadlines, numerical limits, and evidentiary standards, and the exceptions matter as much as the rules. This guide — part of our asylum and removal defense practice — explains when reopening is possible, what each ground requires, and the traps that close the door for good.

Reopening vs. reconsidering: two different motions

The two post-decision motions are often confused. A motion to reopen presents *new facts* — evidence that is material and was previously unavailable — and asks for a new hearing. A motion to reconsider argues the judge got the *law or facts wrong on the existing record*, and must be filed within 30 days. If your argument is “the decision was legally wrong,” you likely need reconsideration or an appeal; if it is “something has changed or come to light,” reopening is the tool.

Forum matters as much as label: the motion goes to whichever body decided the case last — the immigration judge if no appeal was taken, the Board of Immigration Appeals if one was. Filing in the wrong forum wastes weeks the deadline may not forgive, and the two forums have different filing mechanics, fee rules, and briefing customs. Confirming where the last order actually issued is step zero of every reopening analysis.

The deadlines, and the exceptions that swallow them

Missed hearings: rescinding an in absentia order

When someone misses an immigration hearing, the judge can order removal in absentia — in their absence — often in minutes. These orders are among the most commonly reopened, on two tracks. The first is lack of notice: hearing notices go to the address on file, and if the notice was sent to an old address the person never received (through no fault of their own — the duty to update addresses is real), rescission has no deadline. The second is exceptional circumstances: events like serious illness or a genuine emergency that prevented appearance, raised within 180 days.

These motions live and die on documentation: the envelope, the address history, medical records for the day in question, sworn statements. A successful rescission puts the person back where they were before the missed hearing — proceedings resume, and defenses like asylum or cancellation of removal can finally be heard.

Changed country conditions: the asylum exception

For people whose danger arose or worsened after their case closed, the law removes the deadline entirely: a motion to reopen to apply for asylum may be filed at any time if it is based on materially changed conditions in the country of removal, supported by evidence that could not have been presented at the original hearing. The comparison is the heart of it — the motion must show what the record looked like then, what the evidence shows now, and why the difference matters to this person’s claim. Generic worsening reported in headlines rarely suffices; targeted evidence tied to the applicant’s ethnicity, religion, politics, or family does.

Ineffective assistance of counsel

Cases lost because a prior representative failed the client — missed deadlines, never-filed applications, advice to concede without defense — can sometimes be reopened on ineffective assistance grounds. The Board requires a specific procedural foundation, known as the *Lozada* requirements: an affidavit detailing the agreement with prior counsel and what went wrong, notice to the former representative with a chance to respond, and either a bar complaint or an explanation of why none was filed. Deadlines can be equitably tolled while the problem was undiscoverable, but courts expect diligence once it surfaced.

Joint motions and the court’s own authority

Outside the deadline-and-exception framework sit two discretionary routes. A joint motion is filed with the government’s agreement — most often when something has changed that gives the person a clear path to status, such as an approved family petition with a current visa number, and the equities make reopening sensible. Getting that agreement is advocacy in itself: a written request to the government’s counsel with the evidence attached, the criminal and immigration history addressed candidly, and the proposed outcome spelled out. Agency priorities shift with administrations, so the odds of agreement vary — but a well-assembled request costs little compared to what it can unlock.

Courts and the Board also retain sua sponte authority to reopen on their own motion — invoked rarely, for situations described as exceptional. In practice it functions as a safety valve for compelling cases that fit no other door: fundamental changes in the law that made someone removable then and not now, or extraordinary equities. It is a long shot by design, and motions built primarily on it need to be honest with the client about that.

If reopening is granted — and a warning about leaving

A granted motion vacates the removal order and puts the case back on the court’s docket, where the relief attached to the motion — asylum, cancellation, adjustment through a family petition — is finally heard on its merits. Expect scheduling to take months; the win is the hearing, not an instant status.

One trap deserves bold print: departure. Leaving the United States while a motion is pending is generally treated as withdrawing it, and someone who was removed or departs under an order faces the separate machinery of reinstatement if they return without permission — a posture with far fewer options. Nobody with a pending or contemplated motion should travel, or accept a “voluntary” departure at a check-in, without legal advice first.

What a persuasive motion actually contains

• The new evidence itself — not a promise of it. Declarations, records, and exhibits go in with the motion, along with the application for whatever relief reopening would allow.
• Materiality: a showing that the new evidence could change the outcome, not merely add detail to a settled record.
• Prior unavailability: why this evidence could not have been presented before, with specifics.
• A clean procedural posture — the right forum (the motion goes to whoever decided last, the judge or the Board), the deadline math, and the stay request where removal is a risk.

Stays of removal in practice

Because the motion alone rarely stops a deportation, the stay request deserves its own strategy. Stays can be sought from the immigration judge or the Board alongside the motion, and — separately — from ICE itself on Form I-246, which sometimes grants short administrative stays for compelling circumstances even while litigation continues. The practical rules: file the stay with the motion rather than after, attach the same evidence, and be candid about any scheduled removal date, because adjudicators triage by urgency. When removal is imminent, counsel may also engage the government’s trial attorneys directly — an agreed pause or a joint-motion conversation resolves some emergencies faster than any filing. None of this is a substitute for winning the motion; it is what keeps the person here long enough for the motion to matter.

How Atlas approaches reopening

Reopening work starts with the file, not the form. We obtain the complete record — the court’s file, the government’s file through records requests, and prior counsel’s file where ineffective assistance is in play — and reconstruct what actually happened before deciding which door the case fits through. Deadline math comes next, because a motion filed under the wrong exception invites denial even when a right one existed.

Then the motion is built like the mini-trial it is: full evidence, the underlying relief application attached, and a stay strategy where needed. Families usually come to us at this stage under time pressure — a detained relative, a looming removal date — and we work at that tempo, with same-business-day responses and, where detention is involved, custody and bond strategy running in parallel.

This guide is part of our asylum and removal defense services — the service page covers eligibility, fees, and how we handle these cases.

Jordan S. Weinberg, Esq.

Founder & Managing Attorney, Atlas Immigration Law

Member of the American Immigration Lawyers Association (AILA) and the Dallas Bar Association. Licensed to practice in Texas; fluent in English and Spanish.

This guide is general information, not legal advice, and reading it does not create an attorney-client relationship. Immigration law and procedures change, and how they apply depends on your specific facts — consult a licensed immigration attorney about your situation.