Immigration Court Motion Practice
Critical Time Deadlines
Overview of Motion Practice
Motions to reopen and reconsider are critical post-decision remedies in immigration court that can provide a second chance for individuals who received adverse decisions. These motions are governed by strict deadlines and requirements under 8 CFR 1003.2 and 8 CFR 1003.23.
A motion to reopen requests the immigration court to reopen proceedings based on new evidence, while a motion to reconsider challenges legal or factual errors in the judge's decision. Understanding the differences and requirements is essential for successful motion practice.
Motion to Reopen Requirements
To file a successful motion to reopen, you must:
- New facts that were not available and could not have been discovered at the previous hearing
- Evidence that the new facts would likely change the outcome of the case
- Motion must be filed within 90 days of the final order (with limited exceptions)
- Previously unavailable evidence must be attached to the motion
- Affidavit explaining why evidence was not previously available
- Translation of foreign language documents with certification
Prima Facie Eligibility Standard
The new evidence must establish prima facie eligibility for the relief sought. This means the evidence, if unrebutted, would be sufficient to establish eligibility for the requested relief (asylum, cancellation, etc.).
Motion to Reconsider Requirements
To file a motion to reconsider, you must:
- Point to specific errors of fact or law in the immigration judge's decision
- Must be filed within 30 days of the final administrative order
- Cannot present new evidence - only challenge legal or factual errors
- Must demonstrate that the decision was based on incorrect application of law or policy
- Cite to specific legal authority supporting the argument
- Cannot be used to re-argue the same issues without new legal basis
No New Evidence Allowed
Time Bar Exceptions
Limited exceptions to 90-day/30-day deadlines:
- Changed country conditions that would affect the outcome
- New legal precedent from BIA, federal court, or regulatory changes
- Evidence of ineffective assistance of counsel
- Previously unavailable evidence due to exceptional circumstances
- Tolling due to mental incompetency or other legal disability
- Filing within reasonable time of discovery of new evidence
Filing Requirements and Procedures
Required filing procedures:
- Original motion with attachments filed with immigration court
- Copy served on DHS counsel at the time of filing
- $220 filing fee (increased under H.R. 1 - 2025) or fee waiver request
- Proof of service on DHS counsel included with motion
- All supporting evidence and documentation attached
- Certificate of service showing date and manner of service to DHS
2025 Filing Fee
Service Requirements
Motion Filing Process
Prepare Motion
Draft motion with legal arguments, attach all supporting evidence and affidavits
File with Court
Submit original motion with filing fee to immigration court clerk within deadline
Serve DHS Counsel
Provide copy to DHS counsel and file proof of service with the court
DHS Response Period
Government has 30 days to file response opposing or not opposing the motion
Court Review
Immigration judge reviews motion, evidence, and any DHS response
Decision
Judge grants or denies motion - if granted, case reopened for new proceedings
New Proceedings
If reopened, new master calendar or individual hearing scheduled
Types of Evidence for Motions to Reopen
Acceptable New Evidence
- • Changed country conditions reports
- • New legal precedent or regulatory changes
- • Previously unavailable medical or psychological evidence
- • Documentation of persecution since removal order
- • Evidence of ineffective assistance of counsel
- • New family relationships or qualifying relatives
- • Evidence of rehabilitation from criminal issues
Insufficient Evidence
- • Evidence that was available at time of hearing
- • Cumulative evidence that adds nothing new
- • Evidence of events after the removal order
- • Speculative or conclusory statements
- • Evidence that doesn't establish prima facie eligibility
- • Arguments that were already made and rejected
- • General country condition reports without specificity
Common Motion Grounds
Changed Country Conditions
New evidence of deteriorating conditions in home country that would support asylum or withholding claims. Must be specific to applicant's circumstances.
Ineffective Assistance of Counsel
Attorney errors that prejudiced the case. Must meet specific standards including notice to former counsel and opportunity to respond.
New Legal Precedent
BIA or federal court decisions that would change the outcome if applied. Must be directly applicable to the case facts.
Previously Unavailable Evidence
Documents or testimony that was not obtainable despite diligent efforts. Must explain why evidence was unavailable at time of hearing.
Motion Drafting Requirements
Essential Motion Components
- 1Caption with respondent name, A-number, and court information
- 2Statement of the relief sought (reopen for asylum, cancellation, etc.)
- 3Factual background and procedural history of the case
- 4Legal argument explaining why motion should be granted
- 5Detailed explanation of why evidence was previously unavailable
- 6Prima facie showing of eligibility for requested relief
- 7Certificate of service showing service on DHS counsel
Appeals and Further Review
BIA Appeal Available
Federal Court Jurisdiction
Strategic Considerations
Key Success Factors
- File as early as possible within deadline - don't wait until last minute
- Provide detailed affidavit explaining why evidence was previously unavailable
- Include all supporting evidence - court will not consider piecemeal submissions
- Address prima facie eligibility directly with specific legal citation
- Consider combining motion to reopen with motion to reconsider if appropriate
Critical Warnings
Motion Practice Risks
- Missing deadlines permanently bars most future relief - exceptions are extremely rare
- Frivolous motions can result in sanctions and attorney discipline
- Generally limited to one motion to reopen (exceptions for changed country conditions)
- Strong legal representation essential - pro se motions have very low success rates