can I file a motion to reopen after 90 days

Yes, in certain circumstances. The 90-day deadline is waived for motions based on changed country conditions (no time limit under 8 CFR §1003.23(b)(4)(i)), joint motions agreed to by DHS, or cases involving in absentia removal orders where you were not properly notified of the hearing. Outside these exceptions, late motions are generally denied unless exceptional circumstances apply.

what is the difference between motion to reopen and motion to reconsider immigration

A motion to reopen is based on new facts or evidence not previously available, while a motion to reconsider argues that the original decision contained a legal or factual error based on the existing record. Both have a 90-day filing deadline, but the grounds and standards are different. You can file both types, but generally only one of each per case.

does filing a motion to reopen stop deportation

Not automatically. Filing a motion to reopen does not create an automatic stay of removal. You must separately request a stay of removal — either from the immigration court, the BIA, or the federal circuit court of appeals. Without an approved stay, removal can proceed even while the motion is pending.

how long does a motion to reopen take immigration court

Processing times vary significantly depending on the court's docket and complexity of the case. The BIA and immigration courts do not guarantee a fixed timeline. Check current average processing times on the official EOIR website at justice.gov, as backlogs fluctuate. Having complete documentation submitted at filing can help avoid delays from requests for additional evidence.

Motion to Reopen Immigration Case: Full Guide

A motion to reopen an immigration case asks the court or USCIS to reconsider a prior decision based on new facts or evidence. You must generally file within 90 days of the final order under 8 CFR §1003.23(b)(1), though exceptions apply. Submit Form EOIR-26 to the immigration court or a written motion to the Board of Immigration Appeals (BIA). Check current requirements at the official DOJ website.

What Is a Motion to Reopen?

A motion to reopen is a formal legal request asking an immigration judge or the BIA to reexamine a previously decided case based on new evidence or changed circumstances that were not available at the time of the original decision. It is one of the most important post-order remedies available to immigrants facing a final order of removal or an unfavorable ruling.

Immigration attorney Ilya Fishkin, immigration attorney regularly assists clients with evaluating grounds and preparing motions to reopen before the immigration court and the BIA.

When Can You File a Motion to Reopen?

New evidence: You have material facts or documents that were not available or discoverable at the prior hearing.
Change in law: A new court decision or regulatory change directly affects the outcome of your case.
Changed country conditions: Conditions in your home country have materially worsened since the original hearing (particularly relevant for asylum and withholding of removal cases).
Ineffective assistance of counsel: Your prior attorney's errors substantially prejudiced the outcome of your case (see Matter of Lozada requirements).
Joint motion: Both you and the government (DHS) agree to reopen — no time limit applies in this scenario.
Sua sponte: The court may reopen a case on its own motion at any time in exceptional circumstances.

Statutory time limit: Under 8 CFR §1003.23(b)(1), a motion to reopen before an immigration judge must generally be filed within 90 days of the final administrative order. For BIA motions, the same 90-day rule applies under 8 CFR §1003.2(c)(2). Exceptions exist for changed country conditions (no time limit) and joint motions.

Step-by-Step: How to File a Motion to Reopen

Review your case record: Obtain a full copy of your immigration court record, including the judge's decision and any prior filings, to identify grounds for reopening.
Identify your legal grounds: Determine whether you have new evidence, changed country conditions, ineffective assistance of counsel, or another recognized basis under INA §240(c)(7) or 8 CFR §1003.23.
Gather supporting evidence: Collect affidavits, country condition reports, expert opinions, medical records, or any other documentation that supports your motion.
Prepare the motion and brief: Draft a written motion stating the legal basis, the new facts, and why the case should be reopened. Attach all supporting exhibits. If filing with the immigration court, use Form EOIR-26.
File with the correct tribunal: Submit the motion to the immigration court that issued the decision, or to the BIA if an appeal was filed. Serve a copy on the DHS Office of Chief Counsel.
Monitor the case and respond: Track your case status on the DOJ / EOIR portal and respond promptly to any government opposition or court orders.

What the Law Says

The right to file a motion to reopen is codified in INA §240(c)(7) (8 U.S.C. §1229a(c)(7)) and implemented through regulations at 8 CFR §§1003.2 and 1003.23. The Supreme Court addressed the scope of this right in Dada v. Mukasey, 554 U.S. 1 (2008), reinforcing that the right to file a motion to reopen is a critical safeguard in deportation proceedings. The BIA's precedent decisions — including Matter of Lozada, 19 I&N Dec. 637 — establish procedural requirements when claiming ineffective assistance of counsel.

Motions to reopen are distinct from motions to reconsider: a motion to reconsider (8 CFR §1003.23(b)(2)) argues that the original decision contained a legal or factual error, while a motion to reopen introduces new material evidence or facts. Only one motion of each type may generally be filed with the immigration court, absent exceptional circumstances.

For the most current procedural rules and filing instructions, consult the U.S. Department of Justice — Executive Office for Immigration Review (EOIR).

This material is for informational purposes only and does not constitute legal advice