Motion to Reopen vs. Motion to Reconsider: What’s the Difference, and Which Do You Need?
If your immigration case has been denied or you are facing removal, it is important to act quickly. While it can be frightening, they may still be some options to seek further review of your case. Depending on the circumstances, you may be able to ask the immigration court or Board of Immigration Appeals to review the decision by filing a Motion to Reopen or Motion to Reconsider. Although these motions are sometimes confused, they serve different purposes. A Motion to Reopen asks the court to consider new facts, evidence, or changed circumstances, while a Motion to Reconsider argues that the original decision was legally or factually incorrect based on the existing record. As both have strict deadlines and legal requirements, it is important to understand which option may be available and to consult an experienced immigration lawyer as soon as possible.
What is A Motion to Reopen?
A Motion to Reopen asks an Immigration Judge or the Board of Immigration Appeals (BIA) to reconsider a previously decided case based on new facts or evidence. Unlike an appeal, a motion to reopen focuses on information that was not previously available and could have been argued earlier.
New evidence may include documents, testimony, or other information supporting a potential form of immigration relief. A motion may also be appropriate when circumstances have substantially changed since the original decision. Changed conditions in a person’s home country can be particularly important in asylum, withholding of removal, or Convention Against Torture cases.
A Motion to Reopen may also be used to challenge an in absentia removal order when someone missed an immigration hearing. In these situations, someone could have missed a hearing due to lack of proper notice or other exceptional circumstances.
Generally, only one Motion to Reopen may be filed, and it usually must be filed within 90 days of the final order. As such, a Motion to Reopen must be filed swiftly. Exceptions may exist, so it is crucial to have an attorney to carefully evaluate the circumstances.
Motion to Reconsider
A Motion to Reconsider differs from a Motion to Reopen as it is based on a different type of argument. Rather than presenting new evidence, it asks the Immigration Judge or BIA to review the decision because the decision was legally or factually incorrect. It will ask to look at any new or additional evidence but only focus on the original motion.
A Motion to Reconsider may be appropriate if the court misapplied immigration law, misunderstood evidence that was already submitted, or reached an incorrect legal conclusion. The motion should identify the specific error and explain why the original decision should be changed. A Motion to Reconsider must be filed within 30 days of the final administrative order, and only one such motion is permitted.
Which Motion Should You File?
Whether to file a Motion to Open or Reconsider depends on what is wrong with the original decision. If you have significant new evidence or changed circumstances, a Motion to Reopen may be appropriate. If you believe the Immigration Judge or BIA made a legal or factual error based on the evidence already in the record, a Motion to Reconsider may be the better choice.
Importantly, filing a motion does not automatically stop a removal order. When necessary, a separate request for a stay of removal should be considered. As the appropriate remedy depends on the case history, available evidence, deadlines, and nature of the alleged error, an immigration attorney can help determine whether a Motion to Reopen, Motion to Reconsider, appeal, or another form of deportation defense is the appropriate strategy.
Contact Moftah Law for Assistance with Motion to Reopen or Reconsider
Receiving an unfavorable decision in an immigration case does not necessarily mean that your options have ended. Depending on the circumstances, a Motion to Reopen or Motion to Reconsider may provide another opportunity for your case. However, you must act quickly because strict deadlines and complex legal requirements apply. Having experienced legal guidance can make a crucial difference.
At Moftah Law LLC, our experienced team takes the time to understand each client’s circumstances and goals. We provide experienced counsel with the attention and clarity each case deserves. We proudly serve a diverse community and provide legal assistance in العربية, Français, and Español, helping clients navigate the immigration process with clear communication and guidance. Contact us today to schedule a consultation where we can help to give you a second chance at a life in the U.S.