Court Denies 4th Bid to Reopen Removal Order in 2026

You have a final removal order from years ago. A new court decision comes out — one that seems to undercut the legal basis for your deportation. You file a motion to reopen. Can that work? In September 2026, the U.S. Court of Appeals for the Third Circuit answered that question clearly: no, a change in law is not enough to reopen a statutory motion under federal immigration law.

What the Court Decided

Jose Arcenio Aristy-Rosa came to the United States in 1993 as a lawful permanent resident (LPR — someone authorized to live permanently in the US). In 1997, he pleaded guilty in Queens, New York to attempted criminal sale of cocaine. A final removal order was entered against him in 2011, based largely on that drug conviction. Over the next 15 years, he filed four separate legal challenges to delay deportation. His fourth and final attempt relied on a 2023 Second Circuit ruling — United States v. Minter — which found that the New York drug statute he violated was not a "serious drug offense" under a separate federal law. Aristy-Rosa argued that Minter called his removal order into question and asked the Board of Immigration Appeals (BIA) to reopen his case. The BIA denied the request in March 2025. The Third Circuit, in a decision by Judge Bove joined by Judges Bibas and Porter, upheld that denial in September 2026.

The court's reasoning has broad consequences for anyone in removal proceedings. Under federal law (8 U.S.C. § 1229a(c)(7)), a motion to reopen must be based on new facts supported by evidence like affidavits — not on new court decisions. The Third Circuit ruled that a judicial opinion is not a "new fact" or "evidentiary material" under the plain text of the statute. The court also found that Aristy-Rosa's motion for reconsideration (a separate legal tool) was filed too late — well past the deadline — and that he failed to show the kind of extraordinary circumstances needed for equitable tolling (a legal exception that can extend a missed deadline in rare cases). The BIA's separate power to reopen a case on its own — called "sua sponte" reopening — was also off the table: federal courts have no authority to review when the BIA declines to use that power.

The ruling also reinforced a strict limit that many people in removal proceedings overlook: absent special circumstances, you can only file one statutory motion to reopen, and you must do so within 90 days of the final removal order. Aristy-Rosa had already used that one motion years earlier. His fourth attempt was his second statutory motion to reopen — itself a procedural problem the court noted. The Third Circuit was direct: repeated legal challenges that lack merit, even when filed with the help of an attorney, do not indefinitely pause a removal order.

What to do

• If you have a final removal order and believe a new court decision affects your case, talk to an immigration lawyer immediately — do not file a motion on your own. The rules on what qualifies as grounds for reopening are narrow and technical.
• Check whether your one statutory motion to reopen has already been used. If it has, your options are much more limited, and an attorney can help you understand whether any exceptions apply.
• If you missed the 90-day deadline to file a motion to reopen, ask a lawyer whether equitable tolling — the legal exception for extraordinary circumstances — could apply to your situation. Courts grant it rarely.
• Do not assume that a favorable court ruling in another circuit automatically helps your case. The Third Circuit made clear that out-of-circuit decisions are not binding, and the BIA is not required to follow them.

What to do, step by step — see our guide “Appealing to the BIA”.