Motion to reopen or reconsider immigration case in New York. Challenge removal orders, present new evidence, fix in absentia orders. Experienced immigration attorneys. Call (518) 698-0347.
Not every final immigration court decision is truly final. Under the Immigration and Nationality Act and federal regulations, individuals with removal orders have the ability to seek reopening of their cases under specific circumstances. A motion to reopen asks the immigration court or Board of Immigration Appeals to vacate a prior decision and restart proceedings so that new evidence or changed circumstances can be considered. This is different from a motion to reconsider, which challenges the legal correctness of the original decision based on the record that was already before the court. Understanding the distinction, and which type of motion is appropriate for your situation, is the first step toward challenging an unfavorable outcome.
Deadline rules for motions to reopen are strict and complex. In most situations, only one motion to reopen may be filed, and it must be submitted within 90 days of the final order of removal — whether that order was entered by the immigration judge (if no appeal was filed) or by the BIA after an appeal was decided. Missing this deadline can bar the motion entirely unless an exception applies. The most significant exceptions are for changed country conditions, which allow a motion to reopen an asylum case at any time based on materially changed circumstances in the country of feared persecution, and for in absentia orders, where separate deadline rules apply depending on whether the person had notice of their hearing. An attorney must analyze the full procedural history of your case to identify which deadlines and exceptions apply.
In absentia removal orders — orders entered against a person who did not appear for their scheduled immigration court hearing — represent a significant category of cases where motions to reopen can offer genuine relief. Many people receive in absentia orders because they never received proper notice of their hearing, because an emergency prevented them from attending, or because they were not represented by an attorney who could ensure they received notice. Federal law provides specific grounds and timelines for reopening these orders: within 180 days if the absence was caused by exceptional circumstances, or at any time if proper notice was never given. Our attorneys regularly analyze in absentia orders, identify the strongest basis for reopening, and build thorough motions to give clients a new opportunity to present their case.
A motion to reopen is a formal legal request asking an immigration court or the Board of Immigration Appeals (BIA) to reopen a previously decided case so that new proceedings can be held. The basis for a motion to reopen is typically that new evidence has become available that was not available at the time of the original proceeding, that material facts were not presented at the previous hearing and could not have been presented at the time through the exercise of due diligence, or that changed circumstances exist in the respondent's country of origin that are material to an asylum or withholding claim. A motion to reopen asks the court to essentially restart the case so that the new evidence or new circumstances can be considered. This is distinct from a motion to reconsider, which asks the court to review the legal conclusions it already reached based on the existing record — without introducing new evidence.
A motion to reopen can be filed at various stages of the immigration process. Before the immigration court, a motion to reopen can generally be filed at any time while the court retains jurisdiction over the case. Once a removal order becomes final — either because no appeal was filed within 30 days or because the BIA issued a decision — there are strict time and numerical limits on motions to reopen. Generally, only one motion to reopen may be filed, and it must be filed within 90 days of the final order of removal. However, there are important exceptions to these limits: motions to reopen based on changed country conditions (particularly for asylum cases) are not subject to the numerical or time limitations; motions to reopen in absentia removal orders (entered when someone missed their hearing) have their own separate rules and may be filed within 180 days if the absence was due to exceptional circumstances, or at any time if proper notice of the hearing was never received; and joint motions filed by agreement with the government attorney have no time limit. An attorney can analyze your specific situation to identify which exception, if any, applies.
The deadlines for a motion to reopen depend on where you are in the process and what type of motion you are filing. At the immigration court level, while a case is pending, there is no strict deadline — but once a case closes, the standard deadline for filing a motion to reopen is 90 days from the date of the final administrative order of removal. At the BIA level, a motion to reopen must also be filed within 90 days of the BIA's final decision. For in absentia removal orders — orders entered because someone did not appear for their hearing — a motion to reopen must be filed within 180 days if the absence was caused by exceptional circumstances (such as a serious illness, death of an immediate family member, or other extraordinary event), or at any time if the person was not properly notified of the hearing. If country conditions have changed in a way that is material to a claim for asylum or withholding of removal, the motion can be filed at any time regardless of when the final order was entered. Missing these deadlines can result in the motion being denied as untimely, making it critically important to consult with an attorney as soon as you learn about a final order.
The evidence needed for a motion to reopen depends on the basis for the motion. If the motion is based on new evidence — such as new country condition evidence for an asylum case, or the emergence of a new legal basis for relief (for example, a previously unavailable U visa, VAWA petition, or family-sponsored petition) — the motion must include the specific evidence being submitted, an explanation of why it was not previously available or could not have been presented at the original hearing through due diligence, and an argument for why it is material to the outcome of the case. For a motion to reopen an in absentia order based on exceptional circumstances, the evidence typically includes medical records, death certificates, police reports, or other documentation establishing why the person could not appear. For a motion to reopen based on lack of notice, the evidence might include proof that the individual never received the notice of hearing — such as evidence of an incorrect address on file with the court. The strength of the evidence and the persuasiveness of the legal argument are critical to success, which is why working with an experienced immigration attorney is so important.
Yes, in many cases it is possible to reopen an in absentia removal order — an order entered because a person failed to appear at their scheduled immigration court hearing. The Immigration and Nationality Act provides specific grounds for reopening these orders. First, if the person can show that the failure to appear was due to exceptional circumstances beyond their control — such as a serious illness or hospitalization, the death of an immediate family member, or an attorney's ineffective assistance — they may file a motion to reopen within 180 days of the in absentia order. Second, and importantly, if the person can show that they did not receive proper notice of the hearing in the first place — meaning the notice was not sent to the address they provided to the court, or was not provided in a language they could understand when required — they may file a motion to reopen at any time, with no deadline. This second basis is particularly valuable when a person moved and their address was not properly updated, or when the NTA was sent to an incorrect address. An attorney will review the court's records, the notice sent, and your circumstances to evaluate the strongest basis for reopening.
These are two distinct types of post-decision motions that serve different purposes. A motion to reopen asks the court or BIA to reopen the case and hold new proceedings based on new facts or evidence that were not available at the time of the original hearing, or based on changed circumstances. The focus of a motion to reopen is on new information that materially changes the picture. A motion to reconsider, by contrast, asks the court or BIA to reconsider its prior decision based on errors of fact or law that were already in the record — it does not rely on new evidence, but instead argues that the decision was legally or factually incorrect based on the existing record. For example, if the immigration judge misapplied the legal standard for asylum, or relied on an incorrect reading of the regulations, those would be proper grounds for a motion to reconsider. Both types of motions are subject to time limits (generally 90 days for motions to reconsider), and only one of each type may generally be filed. In some cases, both types of motions can be filed simultaneously. Your attorney will advise on which type of motion is most appropriate and likely to succeed given your specific circumstances.
Our New York immigration attorneys analyze your case for reopening opportunities and build strong motions to protect your right to stay.