Immigration

Immigration Case Denials: Motions to Reopen and Reconsider

Updated By Ilona Bray, J.D., University of Washington Law School
If you think U.S. immigration authorities have made an error in deciding your immigration application or petition, filing a direct appeal may not be the most fitting option. Instead, you might benefit from filing a motion to reopen your case or a motion to reconsider your case.

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If you think U.S. immigration authorities have made an error in deciding your immigration application or petition, but the time for a direct appeal has passed or you waived appeal, you might benefit from filing either:

  • a motion to reopen your case or
  • a motion to reconsider your case.

These two types of motion usually involve going back to the same office or official who made the initial decision, rather than taking the case to a higher authority. They also involve pointing out something that the decision-maker either didn't know about at the time, or failed to consider; or a fact or law that has changed altogether.

Such motions are primarily used in immigration court proceedings, though they can also be useful at the administrative level in dealing with U.S. Citizenship and Immigration Services or other agencies performing immigration-related functions.

The most important thing to understand is that you will need to provide specific reasons for why officials should reopen or reconsider your case--not just ask them to look at the same materials all over again--as well as evidence to support your request.

When to File a Motion to Reopen an Immigration Matter

A motion to reopen is appropriate only when the case deserves a fresh look because something has changed or new information has come to light. If you file a motion to reopen your case, that motion should:

  • assert new material facts that were not known or available before, and
  • present affidavits and/or other documentary evidence to support those facts.
If, for example, someone applies for asylum on the basis of being homosexual, and the immigration judge denies the claim saying that only HIV+ gays and lesbians are routinely persecuted in the home country, then a new medical finding that the applicant was, indeed, HIV+ would be grounds upon which to request the case be reopened.

When to File a Motion to Reconsider an Immigration Matter

A motion to reconsider is appropriate only when the original decision should be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked. If you file a motion to reconsider your case, that motion must:

  • state a reason to reconsider the original decision
  • specify any errors of fact or law in the prior decisions, and
  • be accompanied by appropriate evidence or citations to legal authority.
If, for example, the immigration judge denies a marriage-based green card on the grounds that the couple provided "no evidence that they live in the same house," when in fact that supplied both affidavits and testimony explaining that one spouse works in another city during the week, but they spend weekends together, that could be grounds upon which to file a motion to reconsider.
Or, if the judge refuses to grant an immigration benefit because the applicant is supposedly guilty of a "crime of violence," but the Board of Immigration Appeals subsequently rules in a similar case that the crime in question is NOT a crime of violence, that, too, would be grounds for a motion to reconsider.

Time Limits for Motions Made in Immigration Court

Regardless of which type of motion you file, it must be made within 90 days of the entry of a final administrative order of removal or deportation. The exception is if it involves a request for asylum, withholding, and/or Convention Against Torture (CAT) relief. The have no time limit if the motion is based on a material change in country conditions.

Status of Your Case While Motion Awaits a Decision

It's important to understand that filing a motion to reopen or a motion to reconsider does not, in most situations, delay any action to be taken as a result of the original decision. For example, if a removal date has been set, then that date is still in effect even if a motion has been filed and you are waiting on a decision.

An exception is, however, made for motions to reopen an order that the judge entered in absentia (meaning you didn't show up for the hearing at all). This filing "stays" (puts a hold on) the removal until the Immigration Judge can decide on the motion.

If your motion to reopen or reconsider is granted, your case hasn't been won yet. This simply means that the judge or other decision-maker will take another look at your case, and possibly call you in for a hearing at which to further provide testimony and evidence.

If the motion is denied, your most likely route would be to appeal the underlying case to a higher authority.

Questions for Your Attorney

If your immigration application or petition has been denied, it makes sense to hire an attorney who's experienced in evaluating your best strategy going forward. Among the questions to consider asking your prospective lawyer:

  • Have you previously handled immigration appeals and motions?
  • Do I have grounds for an appeal or for a motion to reopen or a motion to reconsider?
  • What new evidence will I need to gather?
  • What is the likelihood of success in my case?
  • How much do you charge for your services?
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