Motion to Reopen vs Motion to Reconsider in Immigration Cases

The difference between a motion to reopen and a motion to reconsider comes down to one question: are you bringing the judge something new, or are you telling the judge the decision was wrong on what was already there? A motion to reopen presents new facts supported by evidence that was not available at the time of the hearing. A motion to reconsider argues that the decision itself contains an error of law or fact. They have different deadlines (90 days and 30 days), different content requirements, and different chances of success, and filing the wrong one can cost you the only motion you are allowed.

Motion to reconsider: 30 days, errors in the decision

A motion to reconsider asks the body that decided your case, the immigration judge or the Board of Immigration Appeals, to look again at its own decision and correct a specific mistake. It must be filed within 30 days of the decision, and you generally get only one. The regulations require that it state the errors of law or fact in the prior decision and cite pertinent authority. What it cannot do is introduce new evidence or simply repeat the arguments already made in the hope of a different result. The Board dismisses those as attempts to relitigate.

A good motion to reconsider identifies something concrete: the judge applied the wrong hardship standard, miscounted the years of continuous presence, overlooked an exhibit that was in the record, or relied on a precedent that had been overruled. Our motions to reopen and reconsider page describes how these motions fit with appeals.

Because the 30-day window is the same as the appeal window, there is a strategic choice. An appeal to the Board gets a fresh look from a different decision-maker and automatically stays removal. A motion to reconsider asks the same judge to admit error and does not stay removal. In most cases where the judge ruled, an appeal is the stronger tool, and reconsideration is reserved for Board decisions, where no further administrative appeal exists.

Motion to reopen: 90 days, new facts and new evidence

A motion to reopen asks to reopen a closed case because of facts that could not have been presented before. The general deadline is 90 days from the final administrative order, and again the general rule is one motion. The motion must state the new facts, attach the evidence that proves them, and include the application for relief you want to pursue, with its supporting documents. The evidence must be material, and it must have been unavailable and undiscoverable at the time of the earlier hearing. Evidence that existed and could have been gathered with reasonable effort does not qualify, no matter how persuasive it is now.

Common bases for a motion to reopen include an I-130 that was approved after the hearing, a marriage to a U.S. citizen, a new medical diagnosis for a qualifying relative, changed conditions in your home country, or the vacatur of a criminal conviction that was the basis for removal. The 90-day deadline has important exceptions for in absentia orders, changed country conditions, joint motions with DHS and ineffective assistance of counsel, which we cover in detail in how long you have to file a motion to reopen.

A motion to reopen does not stay removal by itself, with one exception: a motion to rescind an in absentia order does. For every other motion to reopen, a separate stay request should be filed with the motion if ICE could act on the order.

Motion to reopen vs motion to reconsider: which fits your situation

Ask these questions in order.

• Did something happen or come to light after the decision that changes the case? That is a motion to reopen.
• Is the decision wrong based on the record and the law as they stood at the time? That is a motion to reconsider, or an appeal if the window is still open and the decision came from an immigration judge.
• Are you within 30 days of the decision? Both motions are still available, and so is an appeal. After 30 days, only a motion to reopen remains unless an exception applies.
• Have you already filed one of these motions? The number limits apply separately to each type, but a second motion of the same kind generally needs an exception.

In practice, many filings combine both: a motion to reopen based on new evidence that also asks the Board to reconsider a legal error. The Board treats each part under its own standard, so a combined motion must meet the 30-day deadline for the reconsideration portion.

Where to file and who decides

The motion is filed with whichever body issued the last decision in your case. If the immigration judge ruled and you did not appeal, the motion goes to the immigration court. If the Board ruled on your appeal, the motion goes to the Board. Filing with the wrong body does not toll the deadline. The DHS trial attorney must be served and may oppose the motion; a joint or unopposed motion is far more likely to be granted.

Before USCIS, the vocabulary is the same but the form is different. A motion to reopen or reconsider a USCIS denial is filed on Form I-290B within 30 days of the decision, the same form used for an appeal to the Administrative Appeals Office. Our guide to appealing a USCIS denial with Form I-290B walks through that process.

What a grant actually gets you

Granting either motion does not grant relief. A successful motion to reconsider results in a corrected decision, which may still be unfavorable if the error did not change the outcome. A successful motion to reopen reopens the proceedings and sends the case back to the calendar, where you must still prove your eligibility for relief at a new hearing. The motion is the door, not the destination, and the relief application attached to it should be prepared as if the hearing were next month. Where the reopened relief is asylum, our asylum practice prepares the updated Form I-589 and country-conditions evidence.

If you received an adverse immigration decision and are weighing a motion to reopen or reconsider, Capitol Law Partners can identify which motion fits and whether the deadline can still be met. 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 motions to reopen and reconsider page or schedule a consultation.