Ch 5-Motions before the Immigration Court - AILA webCLE

Immigration Court Chapter 5
Practice Manual Motions before the Immigration Court
5.7 Motions to Reopen
(a) Purpose. — A motion to reopen asks the Immigration Court to reopen
proceedings after the Immigration Judge has rendered a decision, so that the Immigration
Judge can consider new facts or evidence in the case.
(b) Requirements. —
(i) Filing. — The motion should be filed with a cover page labeled “MOTION
TO REOPEN” and comply with the deadlines and requirements for filing. See
subsection (c), below, Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover
Page). If the alien is represented, the attorney must file a Notice of Entry of
Appearance as Attorney or Representative Before the Immigration Court (Form
EOIR-28). See Chapter 2.1(b) (Entering an appearance). To ensure that the
Immigration Court has the alien’s current address, an Alien’s Change of Address
Form (EOIR-33/IC) should be filed with the motion. Depending on the nature of the
motion, a filing fee or fee waiver request may be required. See Chapter 3.4 (Filing
Fees). If the motion is based on eligibility for relief, the motion must be
accompanied by a copy of the application for that relief and all supporting
documents, if an application is normally required. See Chapter 5.2(g) (Application
for relief).
(ii) Content. — A motion to reopen must state the new facts that will be
proven at a reopened hearing if the motion is granted, and the motion must be
supported by affidavits or other evidentiary material. 8 C.F.R. § 1003.23(b)(3).
A motion to reopen is not granted unless it appears to the Immigration Judge
that the evidence offered is material and was not available and could not have been
discovered or presented at an earlier stage in the proceedings. See 8 C.F.R.
§ 1003.23(b)(3).
A motion to reopen based on an application for relief will not be granted if it
appears the alien’s right to apply for that relief was fully explained and the alien had
an opportunity to apply for that relief at an earlier stage in the proceedings (unless
the relief is sought on the basis of circumstances that have arisen subsequent to
that stage of the proceedings). 8 C.F.R. § 1003.23(b)(3).
(c) Time limits. — As a general rule, a motion to reopen must be filed within 90
days of an Immigration Judge’s final order. 8 C.F.R. § 1003.23(b)(1). (For cases decided
by the Immigration Judge before July 1, 1996, the motion to reopen was due on or before
September 30, 1996. 8 C.F.R. § 1003.23(b)(1)). There are few exceptions. See
subsection (e), below.
updates: www.usdoj.gov/eoir 90 this page last revised: April 1, 2008