Motions to Reopen Immigration Cases: Exceptional Circumstances and Deadlines

What Is a Motion to Reopen?

A motion to reopen asks an immigration judge or the Board of Immigration Appeals (BIA) to reopen previously decided proceedings. It generally relies on new facts or evidence that could affect the outcome of the case. This differs from a motion to reconsider, which asks the decision-maker to correct an error of law or fact based on the existing record.

Under the Immigration and Nationality Act (INA), a person generally may file one motion to reopen removal proceedings, ordinarily within 90 days of the final administrative removal order. Statutory and regulatory exceptions may apply, so the deadline should be evaluated in light of the specific procedural history.

One important situation involves an in absentia removal order, entered when a person fails to appear for a scheduled immigration hearing. Special rules govern requests to rescind these orders, including provisions addressing exceptional circumstances and inadequate notice.

Exceptional Circumstances and Missed Hearings

Under INA § 240(b)(5)(C), a person may seek to rescind an in absentia removal order by showing that exceptional circumstances caused the failure to appear. The statute defines exceptional circumstances as circumstances beyond the person's control, giving examples such as serious illness, certain family emergencies involving death or serious illness, and battery or extreme cruelty. Less compelling circumstances generally do not qualify.

The key issue is whether the circumstances were sufficiently serious and actually prevented attendance at the hearing. Forgetting a hearing date or experiencing an ordinary scheduling problem generally will not satisfy this demanding standard. Each case depends on its facts and the supporting evidence.

Useful evidence may include medical records, emergency-room documents, a death certificate, police reports, or a detailed sworn declaration explaining what happened and why attendance was impossible. The motion should connect the emergency directly to the missed hearing rather than simply describe a difficult event.

Deadlines and Notice Exceptions

Not every missed hearing should be addressed through an exceptional-circumstances claim. INA § 240(b)(5)(C) provides a separate basis for rescinding an in absentia order when the person did not receive legally sufficient notice of the hearing. A qualifying motion based on lack of notice may be filed at any time under the statute.

The court record should be reviewed to determine how the hearing notice was served, which address was used, whether applicable address-reporting requirements were followed, and whether the notice complied with the law. A person may also have a separate statutory basis for reopening if they were in federal or state custody and failed to appear through no fault of their own.

Filing a motion does not always stop deportation. The statute provides an automatic stay while the immigration judge considers a qualifying motion to rescind an in absentia removal order. Ordinary motions to reopen generally do not automatically stay removal, so a separate stay may be necessary.

Other Grounds for Reopening

Depending on the case, other legal grounds may provide a path to reopening even when the ordinary deadline has passed.

• Changed country conditions: Certain motions seeking asylum, withholding of removal, or protection under the Convention Against Torture may qualify for an exception to the time and numerical limits when supported by material changes in country conditions that were previously unavailable.
• Joint motion: A motion jointly filed by the parties may qualify for an exception to the ordinary time and numerical limits. However, the government must agree to join the request.
• Ineffective assistance of counsel: Serious attorney errors may support reopening in appropriate cases. These claims require evidence and compliance with applicable procedural requirements, which may include the steps described in Matter of Lozada.
• Discretionary reopening: Immigration judges and the BIA have regulatory authority to reopen certain cases on their own motion, but this is an exceptional discretionary remedy, not a guaranteed substitute for an untimely filing.

The correct filing location also matters. Depending on the procedural posture, a motion generally belongs before the immigration judge or the BIA. If an appeal is pending, jurisdiction and the appropriate procedure should be assessed before filing.

Preparing a Motion to Reopen

A strong motion identifies the legal basis for reopening, explains the relevant facts, and includes evidence supporting the requested relief. The filing should address the applicable deadline, explain any claimed exception, and comply with the filing and service requirements for the court or Board handling the case.

Before filing, obtain the available immigration court record, review the removal order and hearing notices, and identify any previous appeals or motions. The procedural history can determine which remedies remain available and whether a deadline or jurisdictional issue could affect the request.

Because removal orders can have serious consequences, prompt legal review is especially important when deportation may be imminent. An attorney can assess whether the facts support exceptional circumstances, lack of notice, changed country conditions, ineffective assistance, or another available legal basis.