Motion to Reopen Immigration Case: How to File

You can file a motion to reopen an immigration case to ask the court to reconsider its decision based on new facts or evidence. The motion must generally be filed within 90 days of the final order under 8 CFR §1003.23. File Form EOIR-26 with the immigration court or Form EOIR-45 with the Board of Immigration Appeals. Check current filing fees at justice.gov.

What Is a Motion to Reopen?

A motion to reopen is a formal legal request asking an immigration judge or the Board of Immigration Appeals (BIA) to reconsider a previously issued decision because of new facts, changed circumstances, or legal errors. It is different from a motion to reconsider, which argues that the court made a legal mistake — a motion to reopen introduces new evidence that was not available at the original hearing.

Immigration attorney Ilya Fishkin, immigration attorney, advises clients on whether their situation qualifies for reopening and what evidence is required to support the motion effectively.

Eligibility and Conditions

Before filing, confirm your situation meets one or more of the following grounds:

• New material evidence that was not available or discoverable at the time of the original hearing
• Changed country conditions relevant to an asylum or protection claim (no time limit applies under INA §240(c)(7)(C)(ii))
• Ineffective assistance of counsel — your prior attorney failed to represent you properly (must follow the Matter of Lozada requirements)
• Joint motion — filed together with the Department of Homeland Security (DHS), which carries no time or numerical limit
• Exceptional circumstances or a claim that the original order was entered in absentia (motion must be filed within 180 days under INA §240(b)(5)(C)(i) if based on exceptional circumstances, or at any time if you never received proper notice)

Standard deadline: 90 days from the date of the final administrative order (8 CFR §1003.23(b)(1)). Missing this window does not automatically bar relief — exceptions exist, but they are narrow.

How to File a Motion to Reopen: Step by Step

1. Gather new evidence. Collect all documents, declarations, country condition reports, or other materials that were not part of the original record. Evidence must be material and previously unavailable.
2. Identify the correct form and recipient. Use Form EOIR-26 (Notice of Appeal or Motion) if filing with the immigration court, or Form EOIR-45 if filing with the Board of Immigration Appeals. Download current forms from the Department of Justice.
3. Draft a legal brief. Write a detailed memorandum explaining the legal grounds for reopening, citing the specific statutory or regulatory basis (e.g., INA §240(c)(7), 8 CFR §1003.23). Attach supporting evidence as numbered exhibits.
4. Pay the filing fee or request a fee waiver. Verify the current fee amount on the official DOJ website. If you cannot afford the fee, submit a fee waiver request simultaneously.
5. File before the deadline. Submit the completed form, brief, and all exhibits to the correct court or BIA within the applicable time limit. Keep a copy of everything and obtain a filing receipt or proof of submission.
6. Serve the opposing party. Send a copy of the motion to the DHS Office of Chief Counsel (the government attorney in your case) and include a certificate of service with your filing.

What the Law Says

The right to file a motion to reopen is governed primarily by:

• INA §240(c)(7) — sets the general 90-day deadline and outlines the changed-country-conditions exception
• 8 CFR §1003.23 — immigration court procedural rules for motions to reopen
• 8 CFR §1003.2 — BIA rules for motions to reopen filed at the appellate level
• Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) — sets out the three-part test required for ineffective assistance of counsel claims

For official forms, instructions, and current fee schedules, consult the Department of Justice (DOJ).

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