JLA Law Group

Motion to Reopen or Reconsider — Immigration Court and BIA Representation in Georgia

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A motion to reopen is a legal filing that asks an Immigration Judge or the Board of Immigration Appeals (BIA) to reconsider a previously issued order based on new facts or evidence that were not available at the time of the original hearing. Under INA § 240(c)(7) and 8 CFR § 1003.23, a motion to reopen must generally be filed within 90 days of the entry of the order being challenged. A motion to reconsider, by contrast, raises arguments that the prior decision was legally incorrect based on the existing record — no new evidence is required, but it must be filed within 30 days of the challenged order.

The 90-day deadline for motions to reopen has important exceptions. Motions based on changed country conditions affecting an asylum claim may be filed at any time and are not subject to the 90-day limit, though the changed conditions must be material and not known at the time of the hearing. Ineffective assistance of counsel — when an attorney's deficient performance caused the adverse outcome — can also provide grounds for an exception to the deadline, provided specific procedural requirements under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) are followed. Additionally, in absentia orders of removal (entered when the respondent failed to appear) may be reopened by filing a motion showing exceptional circumstances or lack of proper notice.

JLA Law Group handles motions to reopen and reconsider before Immigration Courts throughout Georgia and before the Board of Immigration Appeals. These motions are time-sensitive, legally complex, and require meticulous preparation. We also handle reinstatement of asylum claims and other post-order relief strategies for clients who have received adverse immigration court decisions.

Steps You Should Take

1

Obtain the Full Immigration Court Record Immediately

Time is critical — the 90-day deadline begins running from the date of the order. We immediately request the hearing transcript, all prior filings, and the complete record of proceedings to identify the grounds for reopening and any procedural defects.

2

Identify Grounds and Assess Timeliness

We analyze whether the motion is timely, identify applicable exceptions to the deadline (changed country conditions, in absentia, ineffective assistance), and determine whether a motion to reopen, motion to reconsider, or both is appropriate.

3

Compile New Evidence or Identify Legal Error

For reopening, we gather new evidence — updated country conditions reports, new asylum claims, new relief eligibility, or material changed circumstances. For reconsideration, we prepare a legal brief identifying specific errors of law in the challenged decision.

4

File Motion with Complete Brief Before Deadline

We draft a comprehensive motion with a detailed legal brief, all supporting evidence, and proposed order. We simultaneously assess whether filing a petition for review with the Eleventh Circuit is appropriate as a parallel strategy. Call JLA Law Group at (770) 609-9396 urgently if you have a recent order.

Frequently Asked Questions

What is the difference between a motion to reopen and a motion to reconsider?
A motion to reopen is based on new facts, evidence, or changed circumstances not available at the prior hearing. A motion to reconsider is based on legal error in the original decision — the judge or BIA misapplied the law or failed to consider controlling precedent. The deadlines differ: 90 days to reopen, 30 days to reconsider. Motions may be combined if both bases apply.
Can I file a motion to reopen more than 90 days after my order?
Yes, in specific circumstances. The main exceptions to the 90-day limit are: (1) changed country conditions materially affecting an asylum claim — may be filed at any time; (2) in absentia removal orders — may be reopened within 180 days for exceptional circumstances or at any time for lack of notice; (3) ineffective assistance of counsel under Matter of Lozada — tolling of the deadline may be available; (4) joint motions agreed to by DHS; (5) a grant of sua sponte reopening by the IJ or BIA in exceptional circumstances.
What are the Matter of Lozada requirements for ineffective assistance of counsel?
Under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), a respondent claiming ineffective assistance of counsel must: (1) submit an affidavit describing the agreement with former counsel and their conduct; (2) inform former counsel of the allegations and give them an opportunity to respond; and (3) either report former counsel to the relevant state bar or explain why not. Courts have sometimes allowed some flexibility in these requirements when circumstances warrant.
What happens if I was ordered removed in absentia?
An in absentia order is entered when a respondent fails to appear at a scheduled hearing. Under INA § 240(b)(5), an in absentia order may be rescinded by filing a motion to reopen within 180 days showing exceptional circumstances (serious illness, family death), or at any time showing lack of proper written notice. The government bears the burden of proving notice was provided; if notice was defective, the in absentia order must be rescinded.
Can I file a motion to reopen from outside the United States after removal?
Yes. Persons who have been physically removed from the US retain the right to file motions to reopen with the Immigration Court or BIA. Distance does not waive the right to seek post-order relief. Effective representation requires careful coordination — deadlines still apply and USCIS and ICE may need to be involved in executing any relief granted.

Applicable Laws

INA § 240(c)(7) / 8 U.S.C. § 1229a(c)(7)Statutory authorization for motions to reopen, establishing the 90-day deadline, the exception for changed country conditions, limitations on number of motions, and special rules for in absentia orders.
8 CFR § 1003.23EOIR regulations governing motions to reopen and reconsider before Immigration Judges, including filing deadlines, required contents, service requirements, and the stays of removal during pendency.
8 CFR § 1003.2BIA regulations governing motions to reopen and reconsider before the Board of Immigration Appeals, including the 90-day and 30-day deadlines respectively, exceptions, and BIA sua sponte authority.
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)BIA precedent establishing the three-part procedural framework required to raise ineffective assistance of prior counsel as grounds for reopening or tolling the filing deadline for a motion to reopen.

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