How Long Do You Have to File a Motion to Reopen?

You generally have 90 days from the final administrative order to file a motion to reopen in immigration court, and you generally get only one. That is the rule in INA 240(c)(7), and for many people it is the whole answer. But the 90-day motion to reopen deadline has five exceptions written into the statute, the regulations and case law, and a large share of successful reopenings rely on one of them. Which exception applies depends on why the case was lost and what has changed since.

When the motion to reopen deadline starts running

The clock runs from the date the removal order became administratively final. If the immigration judge ordered you removed and you did not appeal, the order became final when the 30-day appeal period expired, and the 90 days run from the judge’s decision date. If you appealed to the Board of Immigration Appeals, the order became final on the date of the Board’s decision, and the motion is filed with the Board rather than the court. A petition for review in federal court does not reset the clock.

Within those 90 days, the motion must present new, material evidence that was not available and could not have been discovered at the earlier hearing, together with the relief application it supports. Our immigration appeals and motions team treats the 90-day window as the planning horizon for every lost case: if new facts are developing, the motion should be drafted before the deadline, not after.

Exception 1: In absentia orders

If you were ordered removed because you did not appear at a hearing, different deadlines apply. A motion to rescind the order for exceptional circumstances must be filed within 180 days. A motion based on lack of notice, or on the fact that you were in custody at the time, can be filed at any time. These motions also carry an automatic stay of removal, which no other motion to reopen does. We cover the details in what happens if you miss your immigration court hearing.

Exception 2: Changed country conditions

A motion to reopen to apply or reapply for asylum, withholding of removal or protection under the Convention Against Torture may be filed at any time, and without regard to the number limit, if it is based on changed conditions in the country of nationality or removal. Two things must be shown. First, the change must be in conditions in the country, not in your personal circumstances; a new political movement, a new law targeting your group or an outbreak of violence qualifies, while your own conversion or a new relationship generally does not unless it intersects with changed conditions there. Second, the evidence must be material and must not have been available at the prior hearing. A motion that recycles country reports that existed at the time of the hearing fails on this element. Our asylum practice prepares these motions with updated country-conditions evidence and a new Form I-589.

Exception 3: Joint motions with DHS

A motion to reopen filed jointly with the DHS trial attorney is exempt from both the time and number limits. This is how most prosecutorial discretion reopenings work: when DHS agrees that a case should be reopened, usually so the person can pursue adjustment of status, cancellation of removal or another form of relief, the parties file together and the judge ordinarily grants it. Whether DHS will agree depends on current enforcement priorities, the equities in your case and the strength of the relief you would pursue, and DHS has no obligation to join. A well-documented request to the local Office of the Principal Legal Advisor is the usual first step.

Exception 4: Sua sponte reopening

The immigration judge and the Board each retain authority to reopen a case on their own motion, at any time, in exceptional situations. You can ask them to use it, but it is discretionary, the Board has described it as a power to be used sparingly, and the federal courts of appeals have very limited ability to review a refusal. Sua sponte reopening is a real tool for genuinely exceptional cases, such as a vacated conviction that removes the only ground of removability or an intervening change in law that would make you eligible for relief, but it should not be the primary plan when a statutory route exists.

Exception 5: Equitable tolling for ineffective assistance of counsel

The 90-day deadline is not jurisdictional, and most courts of appeals allow it to be equitably tolled where your prior lawyer’s errors caused the loss and you pursued your rights diligently once you discovered the problem. The Supreme Court confirmed in Mata v. Lynch that the courts of appeals have jurisdiction to review the Board’s refusal to toll the deadline. To qualify, the motion must satisfy the requirements of Matter of Lozada: an affidavit describing your agreement with the prior attorney and what the attorney did or failed to do, proof that the attorney was informed of the allegations and given a chance to respond, and a statement of whether a complaint was filed with the relevant bar authority and, if not, why. Diligence is judged from the time you knew or should have known of the error, so the motion should be filed as soon as new counsel has the facts.

Two practical limits to plan around

First, a motion to reopen does not stay removal unless it is a motion to rescind an in absentia order. If ICE could act on the order, a separate stay request should be filed with the motion, and if you are detained, our habeas corpus practice evaluates whether a federal court can bar removal or transfer while the motion is pending.

Second, leaving the United States complicates everything. The regulations say a person who has departed cannot file a motion to reopen. Several courts of appeals have refused to apply that regulatory bar to motions filed within the statutory deadline or under statutory exceptions, but the rule differs by circuit, and the safer course is always to file before any departure.

For how a motion to reopen differs from a motion to reconsider, including the separate 30-day deadline for reconsideration, see our comparison of the two motions.

If you have a final removal order and new facts, a new relative petition, changed country conditions or a prior lawyer’s mistake, Capitol Law Partners can determine which deadline applies and whether an exception keeps the door open. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our BIA appeals and motions to reopen page or schedule a consultation.