Motion to Reopen & Reconsider
Strategies for rescinding deportation orders, overturning in absentia removals, changed country conditions, ineffective assistance of counsel (Matter of Lozada), and sua sponte reopening.
Motion to Reopen (MTR) & Motion to Reconsider
8 C.F.R. § 1003.23 (Court) • 8 C.F.R. § 1003.2 (BIA) • 8 C.F.R. § 103.5 (USCIS)
Rescinding Removal Orders & Overturning Denials
When an Immigration Judge issues a final order of removal, the Board of Immigration Appeals (BIA) dismisses an appeal, or USCIS denies an immigration benefit, the case is not necessarily over. A Motion to Reopen asks the adjudicator to vacate the prior decision based on new, previously unavailable material facts or changed country conditions.
In contrast, a Motion to Reconsider asserts that the prior decision was based on an incorrect application of law or USCIS/EOIR precedent based on the existing record.
Under INA § 240(c)(7), respondents are generally limited to one motion to reopen filed within 90 days of the final order (30 days for motions to reconsider). However, critical statutory exceptions exist for lack of notice, changed country conditions, joint motions, and asylum.
Overcoming Deadlines
- In Absentia (Lack of Notice): No time limit if respondent did not receive proper statutory notice.
- Changed Country Conditions: No time limit for asylum/CAT based on new country evidence.
- Joint Motion with OPLA: Can be filed at any time with DHS consent under 8 C.F.R. § 1003.23(b)(4)(iv).
Ineffective Assistance of Counsel & Equitable Tolling
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) • Reopening Cases Botched by Prior Attorneys
Affidavit of Representation
Detailed sworn affidavit explaining the exact retainer agreement, promises made, and specific failings of the prior attorney.
Notice to Prior Counsel
Former counsel must be notified of the allegations and provided an opportunity to respond in writing.
Bar Grievance / Explanation
Proof of filing a disciplinary complaint with the state bar licensing authority, or a detailed legal explanation for not doing so.
Need Legal Guidance on Your Immigration Matter?
Connect with experienced immigration attorneys and accredited practitioners to evaluate statutory relief, filing strategies, and procedural defenses.