motion to reopen immigration case attorney
Last updated: May 2025
You already lost once. The immigration judge signed a final removal order, maybe after a hearing you never knew was scheduled, maybe after a lawyer who never showed up with the right evidence. Now you're staring at a 90-day clock and a legal standard built to make reopening hard, not easy. ICE could knock, a routine check-in could turn into a detainer, and the order sitting in your file doesn't go away just because you're scared. A motion to reopen is a narrow option, and it is a real one. If you're reading this, there's still time to use it.
A motion to reopen asks the immigration court or BIA to vacate a final removal order based on new, material evidence not available at the original hearing. Under INA § 240(c)(7), you generally get one motion within 90 days, but exceptions exist for in-absentia orders, changed country conditions, and ineffective counsel.
The Hard Truth
Will a Motion to Reopen Actually Work?
As of 2025, most don't. EOIR's own case-processing data shows immigration judges decide thousands of these motions every year, and the published grant rate has historically run roughly 10-20% depending on the type of motion and the judge (EOIR Statistics Yearbook, FY2023, justice.gov/eoir). TRAC Immigration's longitudinal review of EOIR case records shows a similar pattern — denial is far more common than grant, especially for motions filed after the 90-day window without a recognized exception (TRAC Immigration, Syracuse University, trac.syr.edu/immigration).
These numbers matter because a motion built on a rehash of the old case — a new personal statement saying 'I'm scared to go back,' without new country-condition evidence, expert affidavits, or documentation that wasn't available the first time — is the version that gets denied. The motions that get reopened fit squarely inside a recognized exception and carry evidence a judge can point to as new and material under Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
What Happens If You Wait
What Happens If You Miss the Deadline?
INA § 240(c)(7)(A) gives you one motion to reopen, generally due within 90 days of the final order. Miss that window without qualifying for an exception, and the order stands and remains enforceable. An ICE check-in you've been attending without incident can end in custody, and any relief tied to reopening the case disappears along with it.
Every week without a filed motion is a week of evidence losing value. The country-conditions report you'd cite today could be replaced by a newer one before the motion is even decided, witnesses can become impossible to track down, and a declaration written months ago may no longer reflect what's actually happening on the ground. If you're relying on the lack-of-notice exception under 8 C.F.R. § 1003.23(b)(4)(ii) because you never received a hearing notice, waiting to file invites an argument that you knew about the order and sat on it anyway. If you already have a detainer or a scheduled check-in, a motion to reopen paired with an emergency stay request is the only mechanism that pauses removal while the motion is pending, and that pairing needs to go in before a removal date is set.
Step-by-Step Process
How Do You File a Motion to Reopen? Step by Step
1. Identify which exception applies. The 90-day, one-motion limit in INA § 240(c)(7) has four carve-outs that matter in practice: changed country conditions (no deadline), lack of notice for an in-absentia order (8 C.F.R. § 1003.23(b)(4)(ii)), ineffective assistance of counsel under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and a joint motion filed with DHS/ICE counsel's agreement (no deadline or numerical limit when ICE joins). Which one fits shapes the entire filing.
2. Build the evidentiary record before drafting anything. Under Matter of Coelho, the motion has to establish a prima facie case for the underlying relief with evidence that is both new and material — not available at the prior hearing and not merely cumulative. For changed-conditions motions that usually means current State Department or human rights reports plus a country-conditions expert affidavit, not just an updated personal declaration.
3. File with the correct body. If the case is still before the immigration judge, the motion goes to that court through EOIR's ECAS e-filing system, per EOIR Immigration Court Practice Manual Chapter 5.2. If the BIA already affirmed, the motion goes to the Board instead. Courts with active dockets for this kind of filing include the New York Immigration Court at 26 Federal Plaza, the Varick Street Immigration Court in Manhattan, Chicago Immigration Court at 525 W. Van Buren Street, and the Los Angeles Immigration Court at 606 S. Olive Street — each with its own local filing quirks under the Practice Manual.
4. File a stay request alongside it if removal is imminent. A motion to reopen does not automatically stop removal. If there's a scheduled check-in, a detainer, or a removal date, request a stay from the same body hearing the motion, in the same filing or immediately after.
5. If denied, know the review path. A denied motion can be appealed to the BIA (see our BIA appeal page), and if the Board denies it too, Kucana v. Holder, 558 U.S. 233 (2010) confirmed that motion-to-reopen denials are reviewable by the federal circuit courts of appeals. That petition for review carries its own short deadline and must be filed in the circuit covering the court that issued the order, by an attorney admitted to that circuit's bar.
6. For a second motion, find the exception — there is no second chance without one. INA § 240(c)(7)(A) permits only one motion to reopen per case. A second motion survives only if it fits the changed-country-conditions exception, a joint-motion path with ICE counsel's agreement, or a request that the BIA use its own sua sponte authority — which it grants rarely and only for exceptional circumstances.
A Real-World Example
What the Process Looks Like in Practice
This is a composite drawn from the kind of filings our office handles, not a real client, and it does not imply or state any outcome. A Guatemalan national received an in-absentia removal order after a hearing notice was mailed to an old address following a move that was never updated with the court. Two years later, an ICE check-in flagged the outstanding order. The first step was pulling the hearing record through EOIR to confirm exactly how and where notice was sent. The next was drafting a motion under 8 C.F.R. § 1003.23(b)(4)(ii) arguing the lack-of-notice exception, supported by a change-of-address filing history, lease records, and a sworn declaration establishing the notice defect. The motion was filed with the same immigration court that issued the order, paired with a stay request tied to the pending check-in date. The court set a briefing schedule and gave DHS counsel an opportunity to respond before ruling. That's the procedural shape of this kind of case: establish the record, file inside a recognized exception, document everything, and wait through a review timeline that can run several months — if the motion is later denied, see our BIA appeal page for what comes next.
William J. Vasquez is admitted to practice law in New York and has focused on removal defense and post-order relief, including motions to reopen and BIA appeals, for more than a decade. He has represented clients in proceedings before immigration courts in the New York metropolitan area, including 26 Federal Plaza and Varick Street, and before the Board of Immigration Appeals. His practice centers on identifying which statutory or regulatory exception applies to a given motion-to-reopen deadline and building the documentary record — country-condition expert affidavits, Lozada-compliant ineffective-assistance filings, prior-notice records — needed to meet the prima facie standard under Matter of Coelho. Read more on the attorney profile page.
Key Terms Explained
Motion to Reopen — A request asking an immigration judge or the BIA to reconsider a final removal order based on new facts or evidence not available at the original hearing, governed by INA § 240(c)(7).
In-Absentia Order — A removal order entered because the respondent did not appear at a scheduled hearing; it can be reopened under 8 C.F.R. § 1003.23(b)(4)(ii) if notice was defective or exceptional circumstances caused the absence.
Prima Facie Case — The minimum evidentiary showing needed for a motion to reopen to succeed: new, material evidence that, if believed, would plausibly change the outcome, per Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
Numerical Bar — The general rule limiting a respondent to one motion to reopen per case under INA § 240(c)(7)(A), subject to the changed-conditions, joint-motion, and sua sponte exceptions.
Lozada Motion — A motion to reopen based on ineffective assistance of prior counsel, requiring compliance with the procedural steps set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), including notifying prior counsel and, where applicable, filing a bar complaint.
Joint Motion to Reopen — A motion filed with DHS/ICE counsel's written agreement, not subject to the 90-day deadline or the one-motion numerical limit.
Sua Sponte Reopening — The BIA's or an immigration judge's discretionary authority to reopen a case on its own motion in exceptional circumstances; it is not something a respondent can demand as of right.
Stay of Removal — A request to pause enforcement of a removal order while a motion to reopen or appeal is pending; it is not automatic and must be requested separately.
ECAS — EOIR's electronic case access and filing system, used to submit motions and track dockets per EOIR Immigration Court Practice Manual Chapter 5.2.
Frequently Asked Questions
Q: How many motions to reopen can I file? A: Generally one, under INA § 240(c)(7)(A). A second motion is only possible if it fits the changed-country-conditions exception, is filed jointly with ICE/DHS counsel's agreement, or asks the BIA to use its own sua sponte authority, which it grants rarely.
Q: What if I never received notice of my hearing? A: If you can show the court mailed notice to the wrong address or you never received it through no fault of your own, 8 C.F.R. § 1003.23(b)(4)(ii) allows reopening an in-absentia order without the usual 90-day deadline, provided you document the notice defect with records like address-change filings or returned mail.
Q: Does filing a motion to reopen stop my removal? A: No. Filing the motion alone does not pause enforcement. You need to request a stay of removal from the same body hearing the motion, and if a removal date or detainer is already active, that request has to go in with the motion, not after.
Q: What happens if the immigration judge or BIA denies my motion? A: A denial by the immigration judge can be appealed to the BIA, and a BIA denial can be challenged by petition for review in the federal circuit court covering your case, a path confirmed by the Supreme Court in Kucana v. Holder, 558 U.S. 233 (2010). That petition carries its own short filing deadline and must be filed by an attorney admitted to that specific circuit's bar.
Q: My old lawyer missed the hearing or filed nothing — can that be fixed? A: Possibly, through a Lozada motion to reopen based on ineffective assistance of counsel, but it requires following the procedural steps from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), including notifying the prior attorney and documenting what went wrong, before the motion can succeed on that ground.
Clients who come to us after a final removal order are often calling immigration lawyers for the second or third time, after a first motion was denied or a prior attorney stopped responding to calls. What they describe afterward, consistently, is being walked through exactly which exception their case might fit and what evidence it would take to meet it, well before anyone sits down to draft the motion itself. We don't publish outcome statistics, because no motion-to-reopen case is decided on the strength of someone else's numbers; it's decided on the record built for that specific filing. What we do point to is a consistent process: document review, an honest assessment of whether an exception applies, and a filing built to meet the Matter of Coelho standard rather than one that restates the original asylum story.
If you're holding a final removal order and wondering whether your situation fits one of these narrow exceptions, that question is worth answering now, while deadlines are still open rather than after one has passed. The specifics of your notice history, your prior hearing record, and what's changed in your home country since your case was decided all affect which door — if any — is still open.
Call our office to schedule a consultation on your motion to reopen. Bring your prior removal order, any notice-of-hearing documents you have, and your address history — we'll review them against the relevant exception before we talk about filing anything. We also handle the related BIA appeal, in-absentia removal defense, and stay-of-removal emergency filings that often accompany this kind of motion.
- BIA Appeals
- In-Absentia Removal Defense
- Asylum Appeals
- Stay of Removal Filings
- William J. Vasquez — Attorney Profile